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2016 DIGILAW 297 (TRI)

Sub-Divisional Officer (Civil), Tripura v. Saraswati Ghosh (Biswas) W/o Shri Hiranmoy Biswas

2016-09-23

S.TALAPATRA

body2016
JUDGMENT AND ORDER : 1. These are the appeals filed under Section 100 of the CPC. In RSA No. 59 of 2012 [The Sub-Divisional Officer and Others vs. Saraswati Ghosh (Biswas) and Others], the judgment dated 21.04.2012 passed by the District Judge, North Tripura, Kailasahar [as he then was] in T.A. No. 14 of 2010 has been challenged. By that judgment dated 21.04.2012, the judgment dated 19.03.2010 delivered in T.S. No. 27 of 2009 by the Civil Judge (Sr. Division), North Tripura, Kailasahar has been affirmed. In RSA No. 61 of 2012 [The Sub-Divisional Officer and Others vs. Saraswati Ghosh (Biswas) and Others] the judgment dated 21.04.2012 passed in T.A. No. 09 of 2009 delivered by the District Judge, North Tripura, Kailasahar (as he then was) has been challenged. By that judgment dated 21.04.2012 the judgment dated 19.03.2010 delivered in T.S. No. 27 of 2009 by the Civil Judge (Sr. Division), North Tripura, Kailasahar has been affirmed. 2. Heard Mr. D. Chakraborty, learned senior counsel assisted by Ms. A. Banik learned counsel appearing vice Mr. H. Laskar, learned counsel for the appellants and also heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. B. Chakraborty, learned counsel for the respondents No. 2, 4, 9-10 and Mr. D.K. Biswas, learned counsel appearing for the remaining respondents except the respondents No. 11-12. None appears for the respondents No. 11-12, despite due notice from this Court. 3. Both these appeals are clustered for disposal by a common judgment as an identical substantial question of law is wading through the challenge as made in these appeals. By the order dated 24.06.2013 the following substantial question of law was formulated by this Court for purpose of hearing these appeals: “Whether the finding of the first appellate court returned by the impugned judgment in respect to the Kayemi Talluk Nos. 37/2 and 37/3 is perverse in view of the vesting under Provisions of Section 134 read with Section 135 of the Tripura Land Revenue and Land Reforms Act, 1960?” 4. The suit land under consideration in both the appeals is as follows, in terms of the schedule appended to the plaint in the suit being T.S. No. 27 of 1995 (re-registered against T.S. No. 17 of 1995 which was earlier in the Court of the Munsif, Kailasahar, North Tripura). The suit land under consideration in both the appeals is as follows, in terms of the schedule appended to the plaint in the suit being T.S. No. 27 of 1995 (re-registered against T.S. No. 17 of 1995 which was earlier in the Court of the Munsif, Kailasahar, North Tripura). Description of the suit land District: North Tripura, P.S. Fatikroy, Mouja: Pabiacherra, Paragana; Birchandranagar, Khatian No. 1218. (i) Old C.S. Plot No. 376 class viti 1.21 acrs (ii) Old C.S. Plot No. 377 class viti 0.44 acrs (iii) Old C.S. Plot No. 378 class viti 0.36 acrs Total 2.01 acrs 5. These appeals are emanating from the same suit. For purpose of appreciating the substantial question of law in the context of the relevant fact, the essential part of which may be noted at the outset. 6. The plaintiff-respondents pleaded that they inherited the land belonging to their predecessor, Akhil Chandra Ghosh. Akhil Chandra Ghosh purchased Kayemi Taluk by a registered kabala in 1356 T.E. The pro-defendant No. 5 trespassed illegally in the said land. Area of the suit land is 5 kanis 10 gandas. The pro-defendant in the suit is the cousin brother of the plaintiff. Akhil Chandra Ghosh during his lifetime leased out the suit land to Burma Oil Company Ltd. for a period of 20 years by executing a registered lease deed on 18.08.1959. The Burma Oil Company (BOC, in short) was dissolved and the I.O.C. took over its estate. The pro-defendant No. 7, the IOC stepped into the shoe of the BOC and became the lessee under the said lease deed dated 18.08.1959. 7. Lease was supposed to be expired in the year 1979, it expired without any renewal. In the meanwhile, Tripura Land Revenue and Land Reforms Act, 1960 (in short, TLR & LR Act) came into force in that area w.e.f. 15.04.1963 as regards the Taluki land. The rights of the intermediary were vested in the State Government. Earlier agricultural land a rayati land came directly under the Government, but the non-agricultural land was not vested and Talukders continued their ownership. Thus, after the expiry of the lease period of 20 years, the plaintiffs being the successor of the original Talukder, Akhil Chandra Ghosh became the owners of the suit land, subject to operation of the TLR & LR Act. 8. Thus, after the expiry of the lease period of 20 years, the plaintiffs being the successor of the original Talukder, Akhil Chandra Ghosh became the owners of the suit land, subject to operation of the TLR & LR Act. 8. During the first survey settlement operation in the year 1964, the suit land was recorded in the name of the BOC and the original Talukder raised objection against such mutation of records of right. By that process, according to the plaintiff, Akhil Chandra Ghosh or his successor was not shown as the recorded holder of title. 9. On 24.06.1999 the plaintiffs came to learn that the defendant Nos. 1-4 had dispossessed the plaintiffs and started construction of Town Hall over that land. For their activities, the ownership and the possession of the plaintiffs was at stake and the suit was filed for declaration of title and consequential relief of the perpetual injunction by way of confirmation of the possession. 10. The defendants contested the suit by filing the written statement. The appellants, the defendants No. 1-4, by filing the statement took a clear stand that the entire estate situated in Kailasahar sub-division and was vested in the Government, free from all encumbrances w.e.f. 15.04.1963 and as such, the plaintiffs as the successor of Akhil Chandra Ghosh did not have any title on the suit land. 11. For purpose of determining the suit as many as 7 issues were framed. All the issues may not be relevant for our purpose. As such, only the relevant issues are extracted hereunder: (ii) Is the suit to enforce the right in respect of the suit land held 'Benami' against the proforma defendant No. 5, the Benamdar, barred under Section 4(J) of the Benami Transactions (Prohibition) Act, 1988? If not, did Akhil Chandra Ghosh contributed the purchase money for the alleged transfer dated 07.03.1985? (iii) Did Akhil Chandra Ghosh retain the suit land with effect from the 15th April 1963 as per Provisions of Section 136, TLR & LR Act, 1960? (iv) Have the plaintiffs right, title and interest over the suit land and to the exclusion of the proforma defendant No. 6? 12. The trial court, the Court of the Civil Judge, Sr. (iii) Did Akhil Chandra Ghosh retain the suit land with effect from the 15th April 1963 as per Provisions of Section 136, TLR & LR Act, 1960? (iv) Have the plaintiffs right, title and interest over the suit land and to the exclusion of the proforma defendant No. 6? 12. The trial court, the Court of the Civil Judge, Sr. Division, North Tripura, Kailasahar by the judgment dated 19.03.2010 has observed thus: .........“no evidence adduced by plaintiff side to show how much land and which land was retained by Akhil Chandra Ghosh after vesting of talluk to the government by enforcement of TLR & LR Act, 1960. For this reason, it cannot be said that Akhil Chandra Ghosh retained or not retained the suit and with effect from 15th April 1963 as per provisions of Section 136 of TLR & LR Act, 1960. It has been further observed that Akhil Chandra Ghosh and Beni Madhab Ghosh jointly executed a lease deed by leasing out the suit land in favour of Burma Oil Company Ltd., for 20 years upon certain terms and conditions and that lease deed was executed on 18.08.1959. This leasing out of the suit land jointly by Akhil Chandra Ghosh and Beni Madhab Ghosh shows that both Akhil Chanda Ghosh and Beni Madhab Ghosh had right, title and interest in the suit land equally. In absence of Akhil Chandra Ghosh his legal heirs including proforma defendant No. 6, his eldest son, are all entitled to the right, title and interest to which Akhil Chandra Ghosh was entitled. As both Akhil Chandra Ghosh and Beni Madhab Ghosh were equally had equal right, title and interest in the suit land, it is hereby decided that the instant plaintiffs as well as proforma defendant No. 6 are jointly entitled to 50% share in the suit land and Beni Madhab Ghosh is entitled to remaining 50% share in the suit land.” 13. Having observed thus, the suit was decreed, declaring the right, title and interest and restraining the principal defendants from interfering with the possession of the plaintiffs and the proforma defendant No. 6. Having observed thus, the suit was decreed, declaring the right, title and interest and restraining the principal defendants from interfering with the possession of the plaintiffs and the proforma defendant No. 6. Being aggrieved by the said judgment of the trial court, both the plaintiffs as well as the defendants No. 1-4, the appellants in these appeals, by filing appeal under Section 96 of the CPC in the Court of the District Judge, North Tripura, Kailasahar, challenged the legality of the said judgment. 14. The ground of objection as taken in their appeal being T.A. No. 14 of 2010 was mainly that finding as to the ownership of the plaintiff and the pro-defendant No. 6 was entirely erroneous and such finding emanated from non-appreciation of the material records. But the plaintiff took the objection against the said judgment date 19.03.2010 delivered in T.S. 27 of 2009, as renumbered, that the pro-defendant No. 6 cannot claim any title and that was not the relief sought in the suit. Moreover, the pro-defendant No. 6 did not raise any counter claim in this regard. The plaintiffs' appeal was registered as T.A. No. 09 of 2010 at the court of the District Judge, North Tripura, Kailasahar and both the appeals were heard together and decided by a common judgment dated 21.04.2012. 15. While deciding the appeals, the first appellate court has observed as under: “Appeals are filed by both the plaintiffs-appellants and the defendants-appellants No. 1 to 4. From the appreciation of the evidence on record it is found that the proforma defendant No. 6, the successor of Benimadhab Ghosh is not entitled to get any decree for declaration of title at all. He was not a Benamdar and acquired possession over the land from the trespasser only. The lease deed was to be executed exclusively by Akhil Chandra Ghosh, but name of Benimadhab Ghosh was inducted there as he was in possession of the part of the land, but Benimadhab Ghosh acquired no title by adverse possession and had acquired no interest over the suit land. On the other hand, Akhil Chandra Ghosh acquired right, title and interest over the suit land by purchasing the same form the tallukder and the land was not declared as vested land as per notification under Section 134 of the TLR & LR Act. On the other hand, Akhil Chandra Ghosh acquired right, title and interest over the suit land by purchasing the same form the tallukder and the land was not declared as vested land as per notification under Section 134 of the TLR & LR Act. It was not an agricultural land and no proceeding was followed as per Section 136 of the TLR & LR Act for retention of the land. Therefore, Akhil Chandra Ghosh all along remained the title holder of the land to the exclusion of any right, title and interest of the defendants No. 5 and 6 and also IOC, the lessee, who continued the possession for 20 years. After the lapse of 20 years, the lease period, the possession deemed to have been transferred to the original owner, Akhil Chandra Ghosh. The matter of disturbance and challenge to his title and ownership came to his knowledge in the year 1995 and in the same year he filed case for declaration of title and recovery of possession. Defendant Nos. 1 to 4 representatives of the State of Tripura could not establish right, title and interest over the suit land. Land was not declared khash and not declared as vested property. Therefore, the successors of Akhil Chandra Ghosh remained owners and title holders of the land. Akhil Chandra Ghosh and his successors are entitled to get title and recovery of khash possession. Appeal filed by the plaintiffs-appellants, the successors of Akhil Chandra Ghosh, therefore, has merit. On the other hand, the appeal filed by the representatives of the State of Tripura, defendants- appellants No. 1 to 4 has no merit.” 16. The pro-defendant No. 6 did not file any appeal against the said finding in this Court. But the defendants No. 1-4 have filed these appeals challenging the said common judgment and particularly against the finding in Paragraph-13 as reproduced above and based on that, substantial question of law as referred above was framed by this Court for hearing. 17. Mr. D. Chakraborty, learned senior counsel appearing for the appellants has taken this Court to the pleading of the plaintiff where in the paragraph-5, the following has been asserted: “That, in the meantime TLR & LR Act, 1960 came into operation with effect from 15th April 1963 as regards talluki land so far as tenants in agricultural lands were concerned. Mr. D. Chakraborty, learned senior counsel appearing for the appellants has taken this Court to the pleading of the plaintiff where in the paragraph-5, the following has been asserted: “That, in the meantime TLR & LR Act, 1960 came into operation with effect from 15th April 1963 as regards talluki land so far as tenants in agricultural lands were concerned. The right of intermediaries vested in favour of the state government subject to the rights and savings envisaged u/s 136 of that Act. Section 135 of that Act was subject to Section 136 of that Act. Moreover, further savings and reservations were envisaged u/s 199 of that Act. The erstwhile tenants in agricultural lands became tenants/raiyats directly under the government. But, as to nonagricultural land this vesting was not affected but was rather covered up under protection and savings in favour of the tallukders. Lately by third amendment brought upon that Act in 1975 non-agricultural lands were included under clause (d) of section 135 of the Act treating the non-agricultural tenants as conditional tenants under the State government itself, of course concomitant further protection and savings as of non-agricultural tenancy lands in favour of the tallukders were also incorporated u/s 136 of the Act by the self same amendments.” 18. Having referred to the said passage, Mr. Chakraborty, has argued that the plaintiff has admitted that the right of intermediary is vested in the State Government, subject to the rights and savings envisaged under Section 136 of the Act. It has been clearly asserted that by operation of the TRL & LR Act, 1960, with effect from 15.04.1963, as regards the taluki land so far as the tenants are concerned, the suit land stands clearly vested in the Government. 19. Mr. Chakraborty has further submitted that the vesting therefore is an admitted position of fact. However, subsequently, the pleas have been raised by the plaintiff that since the suit land was a non-agricultural land, there had been no occasion to file the return for retention. Mr. 19. Mr. Chakraborty has further submitted that the vesting therefore is an admitted position of fact. However, subsequently, the pleas have been raised by the plaintiff that since the suit land was a non-agricultural land, there had been no occasion to file the return for retention. Mr. Chakraborty, in this regard has referred Section 135(d) of the TLR & LR Act, 1960 to show that subject to the other provisions of the said Act, every tenant holding any land under an intermediary shall hold the same directly under the Government as a raiyat thereof and shall be liable to pay to the Government, land revenue equal to the rent payable by him to the intermediary on the vesting date, subject to a maximum of the value of one-eighth of the gross produce which value shall be determined in the manner as prescribed. 20. Mr. Chakraborty, learned senior counsel for the appellants has referred to this provision to show that even the intermediary has obligation to pay the revenue for the land, both agricultural and non-agricultural as the Raiyat to the Government. It has been also noted that inclusion of the nonagricultural tenant has been made by the 3rd amendment of the TRL & LR Act. 21. Mr. Chakraborty has further submitted that even though the defendant Nos. 1-4 did not submit relevant notification made under Section 134(1) of the TRL & LR Act in the proceeding but from the notification published in the Tripura gazette on 23rd March 1963, it would be apparent that the estate of the Kailasahar Sub-division was vested in the Government of Tripura. The said notification is not available in the record and as such, further reference can not be made by this Court. However, Mr. Chakraborty, has emphatically asserted that since this is an admitted position for that no proof is required anymore. This Court has considered all these aspects as raised on behalf of the appellants. 22. Mr. S.M. Chakraborty, learned senior counsel and Mr. However, Mr. Chakraborty, has emphatically asserted that since this is an admitted position for that no proof is required anymore. This Court has considered all these aspects as raised on behalf of the appellants. 22. Mr. S.M. Chakraborty, learned senior counsel and Mr. D.K. Biswas, learned counsel appearing for the plaintiff-respondents has submitted that the Government has taken a stand that the suit land was the ceiling excess land of Kayemi Taluk No. 37 of Akhil Chandra Ghosh and as such if that plea is taken by the government it should imply that the government has accepted the title of Akhil Chandra Ghosh over the suit land, otherwise they could not have contended that the suit land is a ceiling surplus land. 23. But what the first appellate court has observed in the impugned judgment is that there is no proof that the land was vested to the State of Tripura under Section 134(1) of the TRL & LR Act, 1960. But this fact has been admitted by the plaintiff in the Para-5 of the plaint that the suit land was vested to the Government. 24. The vesting cannot be in the scheme of the TLR & LR Act on the basis of a selective class of land. The vesting is done entirely for the estate as it stood earlier before the TLR & LR Act, 1960 came into force and as such, this Court finds sufficient force in the submission of Mr. D. Chakraborty, learned senior counsel that the plaintiffs also have admitted that the suit land was vested on 15.04.1963 by operation of the TLR & LR Act and as such the finding as returned by the first appellate Court is absolutely perverse and that cannot be allowed to stay on records. 25. Having held thus, the said impugned judgments are set aside in their entirety and in consequence of the observation as returned by this Court, the suit instituted by the plaintiff-respondents is bound to fail. Accordingly, the suit is dismissed. The judgment and decree passed by the trial court as referred above is also set aside. The suit is therefore dismissed. 26. In short the suit land had been vested to the Government w.e.f. 15.04.1963 and the suit land is liable to be treated as the Government khash land. Accordingly, these appeals are allowed. Accordingly, the suit is dismissed. The judgment and decree passed by the trial court as referred above is also set aside. The suit is therefore dismissed. 26. In short the suit land had been vested to the Government w.e.f. 15.04.1963 and the suit land is liable to be treated as the Government khash land. Accordingly, these appeals are allowed. After preparation of the decree in terms of this common judgment, send down the LCRs.