Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 109 (TRI)

Kiranbala Debbarma v. Surabala Debbarma

2016-04-19

S.TALAPATRA

body2016
JUDGMENT : This is an appeal under Section 100 of the C.P.C. from the judgment and decree dated 30.11.2011, delivered in Title Appeal No.22 of 2011 by the District Judge, West Tripura, Agartala. The judgment under challenge has reversed the finding of the trial court as returned by the judgment and decree dated 16.05.2011 and 21.05.2011 respectively delivered in Title Suit No.38 of 2009 by the Civil Judge, Jr. Division, Bishalgarh, West Tripura. 2. At the time of admission, the following substantial questions of law were formulated by the order dated 10.04.2012: (i) Whether a civil court can pass a decree on the basis of an unregistered gift deed when such transaction is made between two tribal persons under their own custom? (ii) Whether the transfer of any immovable property by way of unregistered gift deed is admissible in the evidence and if so, whether on the basis of such evidence, a decree can be passed? 3. The essential fact for laying the perspective of the challenge may be introduced at the outset. The appellant instituted the suit being T.S. No.38 of 2009 for declaration of title, confirmation of possession and perpetual injunction against the defendants, the respondents herein, in the court of the Civil Judge, Jr. Division, Bishalgarh, West Tripura in respect of the suit land as described in the schedule appended to the plaint. For purpose of reference, the description of the land as provided in the schedule is extracted hereunder: “District– West Tripura, Pargana – Bishalgarh, P.S. & Revenue Circle – Takarjala, Mouza and Tehshil- West Takarjala, Khatian No.915, Plot No.Old PB 164/163/162/2040/part, and new plot No.2012/5193 Land. Bounded by : North – Satya, South – Bijoy, East – Surabala, West – Bishu Kr. & Others. Total land measuring .40 acres only within this boundary.” 4. The appellant has claimed that she became the owner of the property by dint of oral partition caused by her father who was the original owner of the suit land along with other lands and thereafter, she has been cultivating the land by engaging seasonal labourers namely, Samar Debbarma and Swadesh Debbarma. She has also asserted that her father had executed a gift deed on 12.09.2008 in favour of his four daughters. She has also asserted that her father had executed a gift deed on 12.09.2008 in favour of his four daughters. Her father gave more than 10 kanies of landed properties to her brother namely, Udai Debbarma, since deceased who happened to be the husband of the respondent No.1 and the father of the respondent No.2. Her father died on 10.02.2009 and she got the suit land mutated in her name in the Khatian No.915 under Plot No.2012/5193. According to the appellant, on 15.08.2009 the respondents attempted to dispossess her from the suit land. But for resistance, they were not successful in dispossessing her. 5. By filing the written statement, the respondents seriously contested the suit. Besides the technical objections, the respondents stated that the gift deed based on which the appellant claimed the title cannot be maintained in view of the provisions of Section 123 of the Transfer of Property Act as the gift deed was not registered and accepted by the plaintiff. Further, no boundary has been shown in the schedule of the alleged gift deed. Thereafter, it has been asserted that the respondents did not receive any notice from the revenue authority while opening the new Khatian in the name of the appellant. No partition deed dated 12.08.2009 has been produced by the appellant in the court. After death of Udai Debbarma, the full blood brother of the appellant, the respondents had been possessing the suit land along with their other lands whereas the appellant is the full blood sister of said Udai Debbarma. According to the respondents, Bijoy Debbarma, the father of the appellant, had another brother, namely Rabichandra Debbarma and they got the suit land along with the other lands under Khatian No.320 of Mouja- West Takarjala. Rabichandra was handicapped and died as a bachelor. Udai looked after the landed properties of both Rabichandra and Bijoy during their lifetime. Udai got the share of Rabichandra also by way of inheritance in addition to the land within the share of Bijoy Debbarma, father of Udai and the appellant, the plaintiff in the suit. Udai defrayed all expenses of marriage of the appellant. Udai died prematurely on 08.08.2001 leaving behind the defendants and their two other daughters. On an imaginary story of dispossession, the suit has been filed raising the plea as stated in the plaint. Udai defrayed all expenses of marriage of the appellant. Udai died prematurely on 08.08.2001 leaving behind the defendants and their two other daughters. On an imaginary story of dispossession, the suit has been filed raising the plea as stated in the plaint. According to the respondents that the Khatian is a forged document created in collusion with one Revenue Inspector of Takarjala Tehshil. According to the respondents, the appellant did never possess the suit land for more than 25 years and the respondents were in possession. Based on such pleadings, the following issues were framed by the trial court for decision on the dispute on 10.05.2010: “(i) whether the suit is maintainable in its present form and nature? (ii) whether the plaintiff has got right, title and interest over the suit land? (iii) whether the plaintiff is entitled to a decree of permanent injunction against the defendants and their men and agents from entering into the suit land and (iv) to what other relief the plaintiff is entitled?” 6. The appellant as the plaintiff adduced as many as 7(seven) witnesses and exhibited 5 documents namely, the death certificate of Bijoy Debbarma dated 13.07.2009 (Exbt.1) showing the date of death as 10.02.2009, money receipt issued by the Tehshil in the name of the plaintiff and three other (Exbt.2), certified copy of finally published record of rights being Khatian No.915 of Mouja- West Takarjala (Exbt.3), the notice of the mutation (Exbt.4) and the counterfoil of the acknowledgment of the petition filed by the plaintiff for mutation (Exbt.5). The appellant had examined herself as PW-1 whereas Samar Debbarma and Swadesh Debbarma, the seasonal labourers were examined as PWs-2 and 3 respectively. One Gurudhan Debbarma and one Manjurani Debbarma were examined as PWs- 4 & 5, whereas Matilal Debbarma and Tarun Debbarma were examined as PWs-6 & 7 respectively. But the defendants did not adduce any evidence whatsoever. 7. By the judgment dated 16.05.2011, while deciding the claim of the appellant it has been observed that during lifetime of Bijoy Debbarma, he separated his property by way of family arrangement in the year 2000. In that arrangement, Udai Debbarma got more than 10 kanies of land whereas the appellant and Hiramoti Debbarma, another sister of the appellant got one kani each. In that arrangement, Udai Debbarma got more than 10 kanies of land whereas the appellant and Hiramoti Debbarma, another sister of the appellant got one kani each. It has been further observed that the land as claimed by the appellant measuring 0.40 acres has been recorded in Khatian No.915 of Mouja- West Takarjala against the Plot Nos.2012/5193. It has been observed by the trial court as follows: “The defendants also admitted that they are in possession of over 10 kanies of land. However at the same time they denied the claim of the plaintiff over the suit land. The defendants claimed in the written statement that their predecessor- in-interest namely, Lt. Udai Debbarma had inherited all the properties of Lt. Bijoy Debbarma and Lt. Rabichandra Debbarma and they have thus inherited all these properties after the death of Udai Debbarma. Thus, the claim of the defendants is not tenable in law since they have not adduced any evidence. On the other hand, there is a big question mark as to how the predecessor-in-interest of the defendants, namely Lt. Uday Debbarma could inherit all the properties of Lt. Bijoy Debbarma despite the fact that the instant plaintiff and her three sisters were alive.” 8. The trial court in the said judgment dated 16.05.2011 has observed that it can safely be presumed that the right, title and interest of the suit land can be founded on the basis of the record of right, in all actions including civil action, unless the contrary is proved that such entry has been founded on a material piece of evidence which was untrue. 9. Even though the appellant, the plaintiff (PW-1) in her cross-examination has acceded that she did not submit the gift deed and partition deed executed by her father on 12.09.2008, the trial court has observed that there is no application of Section 123 of the Transfer of Property Act inasmuch as the gift deed was never registered and not placed in the evidence. Strangely enough, it is found that even though the deed of family arrangement was not admitted in the evidence, the trial court has observed as under: “On careful perusal of the copy of the alleged partition and gift deed, I find that it is really a deed of family arrangement to which the wrong description has been imputed describing it to be a ‘gift deed’ by which the suit land of the plaintiff and other lands to other sisters of the plaintiff were distributed by Lt. Bijoy Debbarma who was admittedly the original owner of the suit land. From the said alleged gift deed it also transpires that the original owner Lt. Bijoy Debbarma has also delivered the possession of the suit land to the plaintiff and also the possession of the other lands to her sisters as distributed. In my considered opinion, the contents of the alleged gift deed which in fact appears to be a ‘deed of family settlement’ or ‘compromise’ or ‘arrangement’ can be looked into for the collateral purpose though it is unregistered, to consider the nature and extent of the possession over the suit land by the plaintiff. In the case reported in AIR 1976 SC 807 (Kale Vs. Deputy Director of Consolidation) (three Judges Bench) it was held in Para-44 that “…..High Court further erred in not considering the fact even if the family arrangement was not registered it can be used for collateral purpose, namely, for the purpose of showing the nature and character of the possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppels which flowed from the conduct of the parties who having taken the benefit under the settlement keep their mouth shut for full 7 years and later tried to resile from the said settlement. In the above cited case, it was also held that the family arrangement may be even oral in which case no registration is necessary. It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writings. It was further held in the above cited case that, ‘The members who may be the parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged of the parties to the settlement. It was further held in the above cited case that, ‘The members who may be the parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged of the parties to the settlement. Even if one of the parties of the settlement, the other parties relinquishes all his claims or title in favour of such a person and acknowledges him to be the sole owner then the antecedent title must be presumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.” “In another judgment reported in AIR 1955 SC 481 (Sahu Madho Das vs. Mukundram) it was held that ‘it was well settled that a compromise of family arrangement is based on the presumption that there is an antecedent title of some sorts in the parties and the arrangement acknowledges and the defines what that the title is, each party relinquishing or claims to the property other than that falling to his share and recognizing the right of the others, as they had previously asserted to the portion allotted to them respectively.” Before elaborately appreciating the reasons, based on which the impugned judgment has been passed, it is to be observed in this part that the analysis of Kale vs. Deputy Director of Consolidation, reported in AIR 1976 SC 807 and Sahu Madho Das vs. Mukundram, reported in AIR 1955 SC 481 is not based on proper interpretation. In both the decisions, the parties who claimed or disclaimed existence of the family arrangement by way of separating their share had the antecedent title before entering into the said family arrangement. But in this case in whose favour the family arrangement was made, they did not have any antecedent title but the person who caused it, had such title. It was a family arrangement by the father in favour of his wards. That apart, the trial court gravely erred in reading the content of the purported deed of gift, which according to him, is a family arrangement without bringing the same in the evidence following the procedure as laid down in Section 67 of the Evidence Act. It was a family arrangement by the father in favour of his wards. That apart, the trial court gravely erred in reading the content of the purported deed of gift, which according to him, is a family arrangement without bringing the same in the evidence following the procedure as laid down in Section 67 of the Evidence Act. Unless the document which is mandatorily registrable is received in the evidence for collateral purpose, in terms of proviso to Section 49 of the Registration Act, 1908, the content of the said document cannot be permitted to be read in the evidence even for collateral purpose. Reading of that document by the trial court cannot be sustained. But the finding is not entirely based on the said reading. It took the record of rights in the consideration. Thereafter, the trial court has taken judicial notice of a memorandum dated 30.06.1987 of the Revenue Department, Government of Tripura under No.F.4 (26)-RCC/87 which reads as under: “Subject : Inheritance of tribal property. “It is found that the tribal land holders distribute land brought their sons and daughters according to their local customs without executing any registered deed of transfer. A question has been raised whether upon transfer of properties may be recognized and mutation allowed in favour of the sons and daughters of the tribal land holders. The matter has been examined in consultation with the Law Department and it has been decided that by virtue of family arrangement the tribal land holders can distribute land amongst their children according to their social customs and the names of persons in possession may be recorded in the record of right accordingly. For such recording of tribal land registered document of transfer need not be insisted upon while granting mutation. It is, therefore, requested that all concerned may kindly take action accordingly.” 10. Based on the said policy decision, it has been observed by the trial court that in spite of the law as provided by Section 123 of the Transfer of Property Act, the gift deed is to be registered, but as the alleged gift deed is actually a deed of family arrangement it can be relied even if that was not registered. 11. 11. The trial court on appreciation of the oral evidence as laid by the plaintiff has come to the conclusion that the possession of the plaintiff over the suit land through the seasonal labourers has been proved. Even PW-4, Guradhan Debbarma has stated that by means of a family arrangement the land was distributed and allocated. Having returned such finding, the suit was decreed in terms of the judgment dated 16.05.2011. 12. The said judgment dated 16.05.2011 was challenged in the appeal being Title Appeal No.22 of 2011 by the respondents, the defendants in the suit, in the court of the District Judge, West Tripura, Agartala. The District Judge, West Tripura, Agartala in the impugned judgment has observed inter alia as under: “……it appears to me that the respondent had set up her title over the suit land on the basis of oral partition and an unregistered gift deed of her father. Admittedly, the respondent did not produce any such document before the trial court as well as this Court. According to the respondent, her father had executed the partition/gift deed in the year 2000 in favour of his four daughters. The respondent had also claimed that her father expired on 10.02.2009. It appears to me that the story of partition during the lifetime of her father is unbelievable and also not legally permissible. The assertion made by the respondent regarding execution of the unregistered gift deed made by her father does not hold good because any transfer of immovable property in the mode of a gift must be effected by a registered instrument. As per the provision laid down under Section 123 of the Transfer of Property Act and as such, the respondent’s claim of acquisition of title over the suit land is baseless. It appears that the learned court below has totally relied on the record of right (under exhibit-3) of the respondent upon which he had decreed the suit. According to the learned trial court, since the appellant could not produce any document during trial to contradict the ROR of the respondent it is a good piece of evidence for conferring title over the suit land. According to the learned trial court, since the appellant could not produce any document during trial to contradict the ROR of the respondent it is a good piece of evidence for conferring title over the suit land. Learned counsel appearing for the appellant has submitted that the record of right (under exhibit-3) had been prepared behind the back of the appellants as they were not issued prior notice and there is absolutely no concrete document on the basis of which the record of right could be prepared.” 13. On the claim of possession by the plaintiff it has been observed that since no revenue document has been produced showing PWs-2 & 3 as Bargadar, their testimony is overshadowed by improbability. As such, the first appellate court even discarded the claim of possession by the plaintiff over the suit land. In view of those findings, the judgment and decree dated 16.05.2011 and 21.05.2011 respectively as passed by the trial court were set aside and as consequence thereof, the suit was dismissed. 14. On scrutiny of the records, this Court finds that the defects in the pleadings and non-production of the important documents have really hindered the adjudication of the case. Even though the document which has been believed to be the deed of family arrangement, it had not been received in the evidence. As a result, for purpose of determining the title, the only document which remains to be appreciated is the record of right (Exbt.3). There cannot be any amount of doubt that when a deed is effectively a deed of gift being the instrument of transfer, it is mandatorily registrable in terms of Section 17 of the Registration Act, 1908, as Section 17(a) includes instrument of gift of immovable property, besides Section 123 of the Transfer of Property Act. There cannot be any difference of opinion that when the very unregistered gift deed was not admitted in the evidence, no decree ought to have been passed based on such instrument on taking a judicial notice. Taking of judicial notice is not an unbridled power available to a court inasmuch as Section 57 of the Evidence Act has provided that the court shall take judicial notice of the records and proceedings and knowledge as catalogued. Taking of judicial notice is not an unbridled power available to a court inasmuch as Section 57 of the Evidence Act has provided that the court shall take judicial notice of the records and proceedings and knowledge as catalogued. But it has been categorically provided that ‘if the court is called upon by any person to take judicial notice of any fact it may refuse to do so, unless and until such person produces any such book or documents as it may consider necessary to enable it to do so.’ Hence, the trial court definitely erred gravely taking the judicial notice of the deed of family arrangement without receiving the same in the evidence. Section 61 of the Evidence Act provides that the content of documents may be proved either by the primary or the secondary evidence whereas evidence means and includes (i) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence and (ii) all documents including the electronic record produced for the inspection of the court, such documents are called documentary evidence. By way of oral evidence, the content of the document cannot be proved as Section 22 of the Evidence Act provides specifically that even oral admissions as to the contents of a document are not relevant unless and until the party proposing to prove them. He is however entitled to give secondary evidence of the content of such document under the rules contained in the Indian Evidence Act or unless hereinafter the genuineness of a document produced is in question. 15. Mr. P. Chakraborty, learned counsel appearing for the appellant has admitted that the pleadings are inadequate and the evidence, such as the writing of family arrangement having not been persuaded to be received in the evidence has created real hurdle for the plaintiff. However, he has contended that based on the Khatian and the oral evidence, it can be said that the plaintiff has established that her name has been recorded by the Revenue Officer as the Rayat by granting partition against the property left by her father, Bijoy Debbarma. PWs-2 & 3, the seasonal workers and others have established that the appellant, the plaintiff, is in the possession of the suit land and as such, the finding of the first appellate court is unsustainable. 16. PWs-2 & 3, the seasonal workers and others have established that the appellant, the plaintiff, is in the possession of the suit land and as such, the finding of the first appellate court is unsustainable. 16. From the other side, Mr. Sekhar Datta, learned counsel appearing for the respondents has contended that unless the title is proved by the deed of title, the order of mutation cannot confer any title. He has further submitted that the mutation proceeding itself is irregular one. Such plea has been raised despite the fact that the defendants did not adduce any evidence either oral or documentary. He has further submitted that executive instruction cannot override the statutory provision. However, he has admitted that to determine the nomenclature of a document, the court has to examine the document as a whole and look into its substance. He has also stated that the Court cannot override the express provisions of law. Such submission has been made in the context of Section 123 of the Transfer of Property Act. Mr. Dutta, learned counsel has further submitted that the plaintiff has failed to prove her case as pleaded in the plaint and as such, the first appellate court has rightly dismissed the suit. To strengthen his contention, Mr. Dutta, learned counsel appearing for the respondents has relied on several decisions which were available in the list of citations filed by Mr. Dutta, learned counsel on 16.03.2016. Most of the decisions are on well settled principles of law and as such, their reference is not considered to be noted. However, in Chandra Kanta Deka and others vs. Hem Chandra Deka and others, reported in AIR 1979 Gauhati 55, the Gauhati High Court has held that: “(i) appreciation of oral and documentary evidence is absolutely within the jurisdiction of the Courts of the fact and in second appeal the High Court cannot interfere with findings of fact based on appreciation of evidence. Ordinarily a finding as to possession based on evidence is a question of fact as the determination thereof is the result of the appreciation of oral as also documentary evidence. Therefore the High Court will not interfere with the finding in second appeal unless it is based on mere conjunctures and surmises having no baking of evidence. Ordinarily a finding as to possession based on evidence is a question of fact as the determination thereof is the result of the appreciation of oral as also documentary evidence. Therefore the High Court will not interfere with the finding in second appeal unless it is based on mere conjunctures and surmises having no baking of evidence. (ii) Under Section 3 of the Evidence Act a fact is said to be proved when the court after considering the matter before it either believes it to exist or consider its existence so probable that a prudent man ought to act on the supposition that its exists. A court is to act on his belief and judicial consideration and upon supposition in order to arrive at its conclusion that a fact has been proved in connection with the case. Therefore, some amount of conjectures or surmises is part of the judicial process. Therefore on the plea that some inference had been drawn by the court of fact on evidence the High Court in second appeal is not competent to reexamine the finding of fact as a third Court of fact. However if the inferences are drawn on no evidence whatsoever the question may amount to a question of law and that too in exceptional cases.” 17. Having appreciated the submissions made by the learned counsel, this Court when asked Mr. Dutta, learned counsel appearing for the respondents whether they have established their right or possession as pleaded in the written statement, in his all fairness, Mr. Dutta, learned counsel has admitted that the defendants did not adduce any evidence whatsoever and as such, their fundamental plea is that the plaintiff has failed to prove her case as to the title and possession over the suit land. Mr. Dutta, learned counsel has admitted that 10 kanies or some odd land has been admitted by the plaintiff to be in the share of Udai Debbarma, since deceased and hence, the plaintiff even cannot deny the title of the defendants on that amount of land. He has finally submitted that the defendants’ concern is that they would be deprived of their land measuring 10 kanies or odd. It is transparent that no title deed has been produced. He has finally submitted that the defendants’ concern is that they would be deprived of their land measuring 10 kanies or odd. It is transparent that no title deed has been produced. It is the common knowledge that in the State of Tripura, the tribal land holders in most of the cases do not have the title deeds, the settlement over the land has been recorded in the Khatian. Only thereafter, there may be some title deed. When the civil courts deal with such dispute, this knowledge has to be acknowledged judicially. Even the State has recognized that reality and thus, they have issued that memorandum dated 30.06.1987 as extracted by the trial court. If this document is read with Section 17 (2) (viii) of the Registration Act, 1908 the Khatian becomes a very important document of reflecting the title. Moreover, the defendants did not prove their contention that Khatian was a collusive one or founded on a material piece of evidence which was untrue. This Court can and shall presume that the document of family arrangement was acted on, and on the basis of that the Revenue Officer allowed segregation of the land amounting to partition. The defendants have failed to rebut and as such, even though the record of right by itself is not a proof of title but in the context of this case, the existence of the title can legally be presumed. It is needless to state that the defendants right has been clearly admitted by the plaintiff, the appellant herein, over a tract of land measuring 10 kanies and more and their right over that land cannot be encroached by the plaintiff ever. 18. The finding of the first appellate court that the testimonies of PWs-2 and 3 cannot be believed simply because their name has not been recorded as the under- rayat (bargadar). It can judicially be noted that there can be two categories of bargadars viz. whose name has been recorded in the record of rights and whose name has not been recorded in the record of right. In this case, admittedly names of PWs-2 and 3 are not recorded in the record of rights but what PW-1 has stated that they were doing barga meaning instead of paying them any wage, PW-1 used to share the crops. In the plaint, she has also stated that they were the seasonal workers. In this case, admittedly names of PWs-2 and 3 are not recorded in the record of rights but what PW-1 has stated that they were doing barga meaning instead of paying them any wage, PW-1 used to share the crops. In the plaint, she has also stated that they were the seasonal workers. If those evidence is read together, it would transpire that PWs-2 and 3 are the agricultural workers looking after the cultivation on sharing the crops. As their names have not been recorded in the Khatian, their testimonies cannot be disbelieved. This approach is entirely pedantic in nature. As such, the reversal finding as to the possession is unsustainable. 19. Having held so, this Court is of the considered opinion that the impugned judgment and decree dated 30.11.2011 are liable to be set aside and accordingly, those are set aside. It is declared that the plaintiff has got right, title and interest over the suit land as described in the schedule to the plaint and she is in possession over the said land. The defendants and their men and agents are restrained by a decree of perpetual injunction from disturbing the possession of the plaintiff in any manner. In the result, the appeal is allowed. Prepare the decree accordingly. Thereafter, send down the LCRs.