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2016 DIGILAW 388 (TRI)

Gita Acharjee v. Ratan Debnath

2016-11-17

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Dutta, learned counsel appearing for the appellants as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharji, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the Code of Civil Procedure from the judgment dated 15.05.2013 delivered in Title Appeal No. 26 of 2009 by the District Judge, South Tripura, Udaipur. The judgment dated 25.08.2009 delivered in Title Suit No. 15 of 2001 was affirmed by the said judgment of the first appellate court. The trial Court by the said judgment dated 25.08.2009 dismissed the suit instituted by the appellants being Title Suit No. 15 of 2001 observing, inter alia, that ‘the plaintiffs have the absolute right, title and interest on the suit plot No. 3269. Whether the suit plot No. 3269 contains .19 acres or .14 acres at present is entirely depend upon demarcation and/or correction of revenue record and R.S. map. So long record of rights exists in favour of the defendants in reference to the suit plot No. 3268/8471 and 3268 for land measuring .03 acres and .02 acres as per schedule of the plaint, the civil Court cannot declare absolute right, title and interest on the aforesaid part of the suit land in favour of the plaintiffs by holding that the part of the suit land under Hal plot no. 3268/8471 and 3268 are integral part of suit plot No. 3269. Thus, the plaintiffs have no absolute right, title and interest over the entire suit land’. 3. According to the trial Court the controversy fundamentally hinges on the question whether .05 acres of land of Hal plot No 3269 was wrongly and illegally recorded in favour of the defendants under Hal plot No. 3268/8471 and 3268 by making incorrect entry in R.S. map (Exhibit 10). During trial a commission was issued to find out the fact whether the suit land attracts Sabek plot No. 1781 or it attracts 1782. Accordingly, the survey commissioner submitted his report but the same was rejected by the trial Court. Thereafter another commission was issued and the survey commissioner submitted his report on observing that suit land is part and parcel of Sabek plot No. 1782. The said report was though accepted but in the opinion of the trial court, that was not based on proper reasoning. Thereafter another commission was issued and the survey commissioner submitted his report on observing that suit land is part and parcel of Sabek plot No. 1782. The said report was though accepted but in the opinion of the trial court, that was not based on proper reasoning. Thus, the trial Court had returned its own finding finally. 4. Being aggrieved by that finding, as recorded by the trial Court in its judgment dated 25.08.2009, the appellants preferred the appeal under Section 96 of the CPC being Title Appeal 26 of 2009 in the court of the District Judge. By the impugned judgment, the District Judge has observed that the plaintiff-appellants has failed to establish their right, title and interest over the suit land and hence they are not entitled to get any decree for perpetual injunction. As per the Survey Commissioner’s report the disputed land falls under dag No. 1782 and on the basis of that report, true it is, khatian cannot be corrected. The owner of the land comprised in the dag No. 1782 i.e. the plaintiffs shall remain the absolute owner of that property. But they are not entitled to get any other relief. Hence, the appeal was dismissed on affirmance. Therefore the perspective was rightly appreciated by the trial court and for that reason, the judgment of the trial court was affirmed. 5. Being aggrieved, the plaintiffs have filed this appeal. By the order dated 20.06.2016, the following substantial question of law was formulated for hearing the appeal: “Whether the First Appellate Court while passing the impugned judgment and order has misread the documentary evidence as to appreciate the title of the suit land or the finding that the suit land is not part of the plot No. 1782 pertaining to the old khatian No. 643 of Mouja-Kakraban are perverse and contrary to the records relating to the title? 6. This Court has also observed and directed as under by the said order dated 20.06.2016: “While appreciating this question, this court has not come across to any documentary evidence to gather that the plot Nos.3268/8471 and 3268 either are part of old Dag No.1782 or old Dag No.1781. Even the last Survey Commission could not shed any light convincingly over this dispute. Even the last Survey Commission could not shed any light convincingly over this dispute. But apparently it appears that the plots No.3268/8471, 3268 have been curved out of the old plot No.1782 on considering the total area covered those plots. Even on consideration of the two title deeds submitted by the defendants, it appears that by the title deed No.1-2510 dated 08.10.1987, a piece of land, curving out from the old plot No.1781 measuring .03 acre was sold by Dinesh Chandra Nama to Rebati Mohan Debnath, the defendant No.1 and Sri Gouranga Chandra Debnath, the defendant No.2. By another sale deed No.1-1184 dated 25.04.1989, another piece of land, curving out from the old plot No. 1781 measuring .02 acre, was transferred to the defendants. Therefore, the defendants cannot have any claim on any part of the land pertaining to the old plot No.1782. The plaintiff has the exclusive ownership over the said land. The difficulty what emerges in the midst of appreciation is that whether the plot Nos.3268/8471 under Khatian No.1589/5 of Mouja Kakrabon measuring .03 acre and the plot No.3268 under Khatian No.393/1 of Mouja Kakrabon measuring .02 acre have been curved out from the old plot No.1781 or from the old plot No.1782, which is entirely belonged to the plaintiff. Hence this court is of the view that for determining this aspect of the matter, one Survey Commissioner under Order XXVI Rule 9 is required to be appointed. The Director of the Settlement and Land Records is hereby directed to appoint one Surveyor working under the Director of Settlement and Land Records, to survey both the old plots, being 1781 and 1782 of Mouja Kakrabon for finally determining wherefrom the RS plot No.3268/8461 measuring .03 acre under Khatian No.1589/5 of Mouja Kakrabon and the RS plot No.3268 measuring .02 acre under RS Khatian No.393/1 of Mouja Kakrabon have been curved out. The Director of Settlement and Land Records shall direct the Surveyor to confine the survey to this aspect of the matter only. The cost of the survey shall be borne by the appellant and on determination of costs for the said survey, the same shall be deposited to the Director of Settlement and Land Records within such day as would be stipulated by the Director of Settlement and Land Records. The cost of the survey shall be borne by the appellant and on determination of costs for the said survey, the same shall be deposited to the Director of Settlement and Land Records within such day as would be stipulated by the Director of Settlement and Land Records. The said Surveyor shall be entitled to inspect the original records or the records as produced by the parties in the suit including the old and new maps, title deeds and khatians. For this purpose, the Surveyor has to approach the Registrar (Judicial) of this court, who will arrange the said inspection under his supervision. The Surveyor shall notify the parties through their counsel about the date of survey, so that the parties can ensure their presence or representation during the field survey. The notice may be served through the counsel. The Registrar (Judicial) is permitted to give the photo-copies of the documents as would be identified and required by the Surveyor for his use. It is further directed that the said survey shall be completed by 31.08.2016. List this appeal on 02.09.2016 for continuation of hearing as part heard. The Surveyor shall submit the report to this court by 31.08.2016 through the Director of Settlement and Land Records without fail.” 7. In pursuance to that order dated 20.06.2016, the official surveyor, namely, Anal kanti Das, Assistant Survey Officer, Directorate of Land Records and Settlement, Government of Tripura surveyed the land under the communication No. F.No.13(24)-DSLR/Law Cell/2016/14577 dated 10.11.2016 the report has been forwarded to this court. On admission by the appellants and the respondents the said report is accepted in the evidence and marked as Exhibit-X. The said Exhibit-X be made part of the trial court records after keeping a photocopy with the appellate records. 8. Mr. A.K. Bhowmik, learned senior counsel as well as Mr. S.M. Chakraborty, learned senior counsel have submitted that the report of the surveyor can be relied for purpose of returning the finding in this appeal and the appeal may be allowed to that extent on the basis of those findings. For that purpose the substantive part of the surveyor’s report is extracted hereunder: “During field inquiry both the parties were present on the spot. For that purpose the substantive part of the surveyor’s report is extracted hereunder: “During field inquiry both the parties were present on the spot. Attendance of both the parties and some other witness who remained present in the field enquiry is enclosed herewith at Annexure-A. Surveyed the land of old CS plot No. 1781 & 1782 under sheet No. 2 of mouja- Kakraban and found that RS plot No. 3268 under khatian No. 393/1 measuring 0.02 acres has been curved out from old CS plot No. 1781 and RS plot No. 3268/8471 under khatian No. 1589/5 measuring 0.03 acres has been curved out from old CS plot No. 1782. During inquiry, it was found that land of RS plot No. 3268 measuring 0.02 acres is under physical possession of Sri Rebati mohan Debnath and others and land of RS plot No. 3268/8471 is under physical possession of Smt. Gita Acherjee and others” 9. Therefore, it transpires clearly that RS plot No. 3268 under khatian No. 393/1 measuring 0.02 acres has been curved out from old CS plot No. 1871 and RS plot No. 3268/8471 under khatian No. 1589/5 measuring 0.03 acres has been curved out from old CS plot No. 1782. It further transpires that RS plot no. 3268 measuring 0.02 acres is under physical possession of Sri Rebati mohan Debnath , the original defendant no. 1 and now under the possession of the heirs of the original defendant No.1. As such, there will be no difficulty to hold that so far the suit land is concerned, it shall be confined to RS plot No. 3269 measuring 0.14 acres and RS 3268/8471 measuring 0.03 acres comprised respectively under RS khatian No. 1578 and RS khatian No. 1589/5. But the appellant does not have any right, title and possession over the RS plot No. 3268 measuring 0.02 acres comprised in RS khatian No. 393/1. 10. Accordingly, the impugned judgment is interfered with, holding that the plaintiff-appellants are entitled to the declaration of right, title and interest in respect of the land comprised in RS khatian no. 1578, RS plot No. 3269 measuring 0.14 acres and RS khatian no. 10. Accordingly, the impugned judgment is interfered with, holding that the plaintiff-appellants are entitled to the declaration of right, title and interest in respect of the land comprised in RS khatian no. 1578, RS plot No. 3269 measuring 0.14 acres and RS khatian no. 1589/5, RS plot no.3268/8471 measuring 0.03 acres under mouja-Kakraban, District-Gomati and the plaintiff appellants are also entitled to get a perpetual injunction restraining the defendants from disturbing or any way interfering with the possession over these two plots, as stated above but for purpose of clarification it is also declared that the defendants have right, title and interest over the RS plot No. 3268 under khatian No. 393/1 measuring 0.02 acre and there shall not for part of the suit land. 11. To that extent this appeal is allowed. Prepare the decree accordingly and thereafter send down the records.