Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 38 (TRI)

Kanu Choudhury v. Malati Das

2016-02-15

U.B.SAHA

body2016
JUDGMENT : This is an appeal under Section 100 of the CPC against the judgment and decree dated 25.08.2011 and 30.08.2011 respectively passed by the learned District Judge, South Tripura, Udaipur in Title Appeal No. 01 of 2011 dismissing the appeal and affirming the judgment dated 30.09.2010 passed by the learned civil Judge (Sr. Division), Udaipur, South Tripura in T.S. No. 5 of 2007 whereby and whereunder the suit filed by the plaintiff appellant was dismissed holding that the plaintiff is not entitled for recovery of possession of the suit land and thus the plaintiff’s right, title and interest over the suit land was not declared. 2. The appellant, Sri Kanu Choudhury, instituted the instant suit with consequential relief for recovery of possession, etc., in the Court of the learned Civil Judge, Senior Division, South Tripura, Udaipura being T.S. No. 05 of 2007. 3 The case of the plaintiff, appellant herein, is that one Sri Sridam Das son of Late Kailash Ch. Das was the sole owner in possession of the entire land of Sabek Khatian No. 2395, R.S. Khatian No. 1373, Sabek dag No. 1499/2531 and 2530 corresponding to Hal Plot No. 3307 of an area of 1.96 acres and sabek dag No. 1499.2582, Hal Plot No. 3308 of an area area of 0.12 acre, in total 2.08 acre of Mouja Fulkumari. Sridam Das died leaving behind his wife, namely, Smti. Swarna Bashi Das and his two sons, namely, Sri Rabindra Kumar Das and Sri Sadhu Charan Das alias Sadhan Das as his legal heirs. Thereafter, the wife of Sridam Das also died. Thus, Sri Rabindra Kumar Das and Sri Sadhu Charan Das became the joint owners in possession in equal share over the said 2.08 acres of land. 4. According to the plaintiff, on 16.11.1985, Sri Rabindra Kumar Das and Sri Sadhu Charan Das sold out 1.99 acres of land within that area of their land to the plaintiffappellant by registered deed No. 1181. The appellant started to possess the suit land as the sole owner but the respondents dispossessed him from the suit land on 15.01.2007. The plaintiff appellant asked the respondents to vacate the suit land but the respondents informed the plaintiff appellant that they purchased the suit land by a registered deed of sale from Sri Rabindra Kumar Das and Sri Sadhu Charan Das vide sale deed No. 12112, dated 30.09.2006. The plaintiff appellant asked the respondents to vacate the suit land but the respondents informed the plaintiff appellant that they purchased the suit land by a registered deed of sale from Sri Rabindra Kumar Das and Sri Sadhu Charan Das vide sale deed No. 12112, dated 30.09.2006. According to the plaintiff appellant, the subsequent transfer was incompetent and the respondents cannot claim the right and title of the suit land. 5. It is the case of the plaintiff appellant that Rabindra Kumar Das and Sadhu Charan Das have no possession over the suit land from 16.01.1985 when the appellant took possession of the suit land by purchase. Since the plaintiff appellant’s efforts for getting back the possession of the suit land did not succeed, he filed the Title Suit for declaration of right, title and interest and for recovery of possession of the suit land. 6. The respondents contested the suit by filing written statement where they asserted that the appellant has no cause of action for instituting the suit and they stated that Sridam Das, the original owner of the suit land, was alive till 07.06.1989. Therefore, the sale deed executed by two sons, namely, Sri Rabindra Kumar Das and Sri Sadhan Das in the year 1985 is invalid. They further asserted that owing to the death of Swarnabashi Das and another daughter of Sridam Das on 05.06.1991 and 12.01.2000 respectively, the aforesaid two sons of Sridam Das became the absolute owners of the suit land and as such, the sale deed as executed by the said two sons of Sridam Das in favour of the respondent No.1 is valid transaction and the sale deed alleged to have been created by the plaintiffappellant has no legal strength. 7. The cardinal say of the respondents that the suit land was allotted in favour of Sridam Das vide allotment Order No. 185 dated 21.02.1977 and as such, even Sridam Das had no right to sell the suit property on 16.01.1985 which was within 10 years from the date of allotment of the suit land as the allotment authority allotted the suit land on the basis of the allotment rules with stipulation that the allottee cannot transfer the land within the period of ten years from the date of allotment. The final assertion of the defendant respondents is that the defendant respondent No. 1 purchased the suit land after due enquiry and at that time, the name of Sridham Das was shown in column No.13 and the name of his sons, wife and daughter of Sridam Das have been shown as legal heirs in column No. 24 of the khatian. 8. Considering the pleadings of the parties, the learned Trial Court framed the following issues: (1) Whether the suit land is maintainable in its present form and nature? (2) Whether the plaintiff has a cause of action to file the suit? (3) Whether the plaintiff is entitled for declaration of right, title and interest? (4) Whether the plaintiff is entitled for recovery of possession of the suit land from the defendants? (5) What relief or relieves the parties are entitled to? 9. In support of his case, the plaintiff appellant examined three witnesses, himself as PW1, Sri Nepal Ch. Bhadra as PW.2 and Sri Suchash Choudhury as PW3 and exhibited the following documents: Exbt.1: Hal Khatian No. 2587 of Mouja Fulkumari. Exbt.2: ROR of Fulkumari Gaon Panchayat under Matarbari R.D. Block. Exbt.3: Sale deed written by Monmohan Saha. Exbt.3/1: Signature of scribe Monmohan Saha. Exbt.3/2: Signature of scribe Exbt.3/3: Signature of Monmohan Saha as introducer. Exbt.3/4: Signature of Harendra Kr. Nag (not alive). 10. The defendant side also examined 6 witnesses including herself: DW1: Smti. Malati Das (defendant No. 1) DW2: Sri Pradip Das DW3: Sri Rabindra Das (Vendor of the suit land) DW4: Sri Sunil Ch. Das. DW5: Sri Bipul Nag. DW6: Sri Samir Ranjan Saha. The defendant side also exhibited the following documents: Exbt.A: Certified Copy of R.S. Map of Mouja Fulkumar Sheet No. 4. Exbt.B: Death Certificate of Sridam Das. Exbt.C: Death Certificate of Sanka Bala Das. Exbt.D: Death Certificate of Bakul Bala Das. Exbt.E: Survival Certificate of Sridam Das. Exbt.F: Original Notice dated 28.12.2007. Exbt.G: Letter of D. M & Collector dated 25.03.2008. Exbt.H: Authenticated copy of allottee Khatian No. 1395 dated 21.02.1977. Exbt.I: Certified copy of order of D. M. & Collector dated 25.03.2008. Exbt.J: Authenticated copy of order of Addl. S. D. M. Udaipur, dated 25.08.2008. Exbt.K: Authenticated copy of review and cancellation order of Kanongo dated 06.11.2008. Exbt.L: Original permit of rubber plantation in the name of Malati Das. Exbt.M: Copy of order of SDM Udaipur, dated 28.08.2008. Exbt.I: Certified copy of order of D. M. & Collector dated 25.03.2008. Exbt.J: Authenticated copy of order of Addl. S. D. M. Udaipur, dated 25.08.2008. Exbt.K: Authenticated copy of review and cancellation order of Kanongo dated 06.11.2008. Exbt.L: Original permit of rubber plantation in the name of Malati Das. Exbt.M: Copy of order of SDM Udaipur, dated 28.08.2008. Exbt.N: Certified copy of Khatian No. 1373 of Mouja Fulkumari. Exbt.O/1: Registered sale deed in between defendant No. 1 and Rabindra Das and others. Exbt. O/2: series Signature of Sadhan Das in the sale deed exhibit O(1). 11. The trial court after consideration of the evidences and hearing the learned counsel of both sides, decided the issue No. 1 and 2 in affirmative i.e. in favour of the plaintiff appellant and while deciding the issue No. 3, the learned trial Court held : “In our Xray view, the suit land is allottee land there is a statuary bar in TLR & LR Act to transfer the suit land within 10 years from the date of allotment. As per assertion of the plaintiff, the plaintiff purchased the suit land within 10 years of allotment in the year 1985. The Section of 43 of T.P. Act is not helpful to the plaintiff and statutory bar under TLR & LR Act which is a special law will operate. The sale deed of the plaintiff by dint of which the plaintiff claimed title of the suit land has no legal force. Whereas the defendants by virtue their sale deed executed after elapse of statutory period of bar to transfer, got the mutation (Exhibit N) of the suit land in cancellation (Exhibit K) of the mutation of the plaintiff. Therefore, the plaintiff had no right title and interest over the suit land and this issue is replied in negative” And in respect of Issue No. 4, it held “In view of decision in issue No. 4 as above, the plaintiff could not establish his title over the suit land by dint of valid purchase. The plaintiff obtained a mutation of the suit land in favour of him which was cancelled by Revenue Authority vide Exhibit K and the land was mutated in favour of defendant No. 1 vide Khatian No. 1373 of Mouja Fulkumar Exhibit N. As per Section 43 clause 3 of TLR & LR Act record of right is the presumptive proof of possession. We arrived in the conception that defendant is in possession of the suit land. In view of aforesaid discussion, the plaintiff is not entitle for recovery of possession of the suit land. This issue is replied in negative against the plaintiff. ” 12 Thus, both the issues were decided in negative against the plaintiff appellant and ultimately, suit was dismissed holding that: “in the result, the suit is dismissed on contest. The plaintiff’s right, title and interest over the suit land is not declared. The plaintiff is not entitled for recovery of possession of the suit land and also not entitled for any other reliefs as sought for”. 13 Being aggrieved by the judgment and decree of the trial court, the plaintiff appellant preferred an appeal before the learned District Judge, South Tripura, Udaipur. The learned District Judge, after hearing the learned counsel appearing for the parties and considering the pleadings as well as the evidence adduced by the parties dismissed the appeal holding that: “Cancellation of a deed and declaration of a deed as not binding are two separate reliefs. The appellant seeks to establish a title in himself, but cannot establish the title unless Exbt. O the sale deed executed by Rabindra Kr. Das and Sadhan Das in favour of the defendant respondent No.1 is cancelled and he has not been a party in the transaction between Rabindra Kr. Das, Sadhan Das in one side and Maliti Das on the other side. In such situation the remedy is to seek declaration that the Exbt. O the sale deed is invalid so far as the plaintiff appellant is concerned. Therefore, without impleading Rabindra Kr. Das and Sadhan Das, the executants of the sale deed marked Exbt.O the plaintiff cannot seek a decree of declaration that Exbt. O is invalid against him”. 14 At the time of admission of this appeal the following substantial questions of law have been formulated: (1) Whether the learned District Judge committed error by holding that the appellants, who were the plaintiffs in the Title Suit No. T.S. 05 of 2007 failed to acquire right, title and interest in respect of the suit land on the basis of the registered sale deed i.e. Exhibit No. 3, executed by the vendors of the respondents? (2) Whether the learned District Judge, South Tripura, Udaipur committed error by holding that the provision of Section 43 of the Transfer of Property Act would not be applicable in favour of the plaintiffs appellants, inasmuch as he claimed that the vendors of the respondents/dependents had earlier sold the suit land in favour of the appellants? 15 The main plank of argument of the learned counsel for the plaintiff appellant is that the Trial court did not consider the documents submitted by the plaintiff appellant and the main thrust is on Exbt. 3 the registered sale deed, which is said to have been executed by the legal heirs of the original owner of the suit land, Sridam Das. According to her, it raises a presumption that the said sale deed is a genuine one and it is the duty of the defendant respondents to rebut such presumption. The learned counsel for the plaintiff appellant has also argued that the plaintiff appellant is entitled to the suit land under the proviso of Section 43 of the Transfer of Property Act. She also submits that the subsequent sale deed i.e. Exbt. O executed by the two sons of the original owner, namely, Rabindra Das and Sadhan Das in favour of the defendant respondent No.1 on 5.9.2006 be cancelled. 16. Per contra, Mr. Bhowmik, learned senior Counsel appearing for the defendant respondents submits that it would be crystal clear that as per death certificate (Exbt.B), the original owner of the suit land i.e. Sridam Das, the father of the defendant respondents, died on 7.6.1989 whereas the alleged deed was made on 16.1.1985 that is when the original owner was alive and no right was accrued by the legal heirs of the original owner to transfer the title of the suit land in favour of the plaintiff appellant. As such, the Exbt.3, i.e. the sale deed No. 1181 in the name of the plaintiff appellant is not a valid one. 17 Mr. Bhowmik, learned senior counsel further submits that the plaintiff appellant is not entitled to the benefit of Section 43 of the T.P. Act as it operates in between the transferee and the transferor and the defendant respondents are not the transferor. It would also transpire from the evidence of DW3 that he deposed that neither he nor his brother Sadhu Charan Das executed any sale deed in favour of the plaintiff appellant. It would also transpire from the evidence of DW3 that he deposed that neither he nor his brother Sadhu Charan Das executed any sale deed in favour of the plaintiff appellant. Even the plaintiff appellant in his entire pleadings is silent about the operation of Section 43 of T .P. Act., Mr. Bhowmik submits. 18 Mr. Bhowmik, also contends that the plaintiff appellant has sought to cancel the Exbt. O i.e. the sale deed executed by Rabindra Kr. Das and Sadhan Das in favour of the defendant respondent No. 1 on 05.09.2006. But for annulment of the deed, the plaintiff appellant has to seek a declaration that the said deed is invalid or illegal and not binding on him. Exbt. O is a transaction between Rabindra Kr. Das and Sadhan Das in one side and Malati Das in the other side but the plaintiff appellant did not implead Rabindra Kr. Das and Sadhan Das to seek a decree of declaration that Exbt. O is invalid against him and until and unless, Exbt. O is declared invalid; the plaintiff appellant cannot claim his title over the suit land. But the plaintiff appellant did not do so as Exbt. O was a valid transaction and the title of the suit land was transferred by the legal heirs of the original owner who inherited the same after the death of their father. 19 Both the learned counsel have discussed on Section 43 of the T.P. Act. Therefore, the said Section is reproduced hereunder: “43. Transfer by unauthorized person who subsequently acquired interest in property transferred where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.” 20 I have given my thoughtful consideration to the rival submission of the learned counsel for the parties and also meticulously perused the evidences and impugned judgment and decrees of the courts below. Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.” 20 I have given my thoughtful consideration to the rival submission of the learned counsel for the parties and also meticulously perused the evidences and impugned judgment and decrees of the courts below. The learned District Judge while dismissing the appeal mainly discussed as to whether the plaintiff appellant has been able to establish his title over the suit land by way of Exbt. 3, the sale deed allegedly executed by Rabindra Kr. Das and his brother Sadhan Das in favour of the plaintiff appellant. The learned District Judge also discussed whether the defendant respondents have rebutted the presumption of genuineness of Exbt.3 i.e. the Registered Sale Deed No. 1181 in the name of the plaintiff appellant and the appellant is entitled to the benefit of Section 43 of the T.P. Act and the Exbt. O Registered Sale Deed executed by Rabindra Das and Sadhan Das, the sons of the original owner Lt. Sridam Das could be declared cancelled. 21 The learned District Judge decided all the above issues in favour of the defendant respondents and against the plaintiff appellant. Exbt. 3 and Exbt. 0 are the two sale deeds referred to this proceeding executed by the same parties i.e. Rabindra Das and Sadhan Das. Exbt. 3 is supported by the plaintiff appellant which is said to have been executed in the year 1985 by Rabindra Das and Sadhan Das. But it reveals from the deposition of Sri Rabindra Das (D.W.3) where he stated that his father Sridam Das was the absolute owner in possession of 1.96 acres of land along with other land which he got by allotment from Govt. of Tripura of Khatian No. 1373 Sabek dag No. 1499/2531, 2530 and his father till his death used to possess the suit land. His father died on 7.6.89 and after his death, his mother, his brother and sister and he became the joint owners in equal share of 2.08 acres of land. Thereafter, after the death of his mother and sister, he and his brother became absolute owner in equal share of the land measuring 2.08 acres of Khatian No. 1373. His father died on 7.6.89 and after his death, his mother, his brother and sister and he became the joint owners in equal share of 2.08 acres of land. Thereafter, after the death of his mother and sister, he and his brother became absolute owner in equal share of the land measuring 2.08 acres of Khatian No. 1373. He also stated that the transaction with defendant No 1 was genuine and the plaintiff never owned or possessed the suit land or any part there of nor he purchased the suit land from him father or from them, namely, Rabindra Das and Sadhan Das. He further stated that his brother never used his name as Sadhu Charan Das and the sale deed No. 1181 submitted by the plaintiff is false and fabricated and they never executed the same in favour of the plaintiff as they have no saleable interest during the life time of their father. 22 Surprisingly, the plaintiff appellant has no claim against those two brothers who are said to have executed the sale deed in favour of the plaintiff appellant. More so, the plaintiff appellant could not adduce any evidence to prove that the Exbt O is an invalid one or it was made by fraud or otherwise. Therefore, Exbt. O sale deed stands good and appears to be a valid one. 23 Section 43 of the TP Act as referred to by the learned counsel for the plaintiff appellant is relating to the transaction between the transferee and the transferor. But in the instant proceeding, he has not made transferee Rabindra Das and Sadhan Das as parties who executed the Exbt. O to establish that the Exbt. 3 is a sale deed valid in the eye of law. Therefore, the argument advanced by the learned counsel for the plaintiff appellant that the plaintiff appellant is entitled to the benefit under Section 43 of the T.P.Act holds no water, rather there is a force in the argument of Mr. Bhowmik, the learned counsel for the defendant respondents. 24 So far as the third point of argument of the learned counsel for the plaintiff appellant is concerned that the Exbt. O be declared as an invalid one, it is needless to say that the Exbt. O cannot be said to be an illegal one, as the plaintiff appellant failed to prove that the Exbt. 24 So far as the third point of argument of the learned counsel for the plaintiff appellant is concerned that the Exbt. O be declared as an invalid one, it is needless to say that the Exbt. O cannot be said to be an illegal one, as the plaintiff appellant failed to prove that the Exbt. O is a subsequent transaction to Exbt. 3 made by Rabindra Das and Sadhan Das. Rather it reveals from the record that Rabindra Das and Sadhan Das are two sons of the original owner remained after the death of their father, mother and sister and accordingly they inherited the suit property as legal heirs and thereafter they sold the suit land to the defendant respondent No1 . Thus the sale deed, Exbt. O is undoubtedly a valid one. 25 It is also found that the learned District Judge recorded in his judgment that the plaintiff appellant has suppressed in his pleading that after due enquiry by the appropriate authority, by different orders passed in Exbt. F. G. J and finally Exbt. K, the mutation of the suit land in the name of the plaintiff appellant in Khatian No. 2587, i.e., Exbt. 1 relied by the plaintiff appellant was cancelled. Thus the title of the plaintiff appellant over the suit land goes. The plaintiff appellant also did not put that document into challenge. Therefore, the prayer for declaration the Exbt. O as invalid cannot be granted. 26 In a case of concurrent finding of fact, the second appellate court jurisdiction is very limited. The High Court can only interfere with the concurrent findings given by the courts below when the findings are perverse on account of misreading or wrong reading of evidence. After going through the judgments of the courts below, this court is of considered opinion that there is no infirmity in the judgment of the trial court as well as appellate court. The substantial questions of law are decided and answered accordingly. 27 For the forgoing reasons and discussion the appeal fails and the same is, accordingly, dismissed. No order as to costs. Prepare the decree accordingly. Send down the LCRs.