JUDGMENT & ORDER (ORAL) This second appeal has been admitted for hearing on the following substantial questions of law: 1. Whether the impugned judgment and decree is perverse for non-consideration of the exhibited documents, Exbt.D1 and D2, which are relating to the same or identical land? 2. Whether a Court can declare title in favour of the legal heirs of the deceased vendor ignoring the title accrued on the basis of the sale deed, Exbt.D1 and D2, to the vendeedefendants in the suit? 2. Heard learned counsel, Ms. S. Deb (Gupta) for the appellants and learned counsel, Mr. R. Dutta for the respondents. 3. The respondents as plaintiffs (hereinafter mentioned as plaintiffs) instituted Title Suit No.4 of 2008 in the Court of Civil Judge, Jr. Division, Sabroom against defendantappellants (hereinafter mentioned as defendants) seeking declaration of title and recovery of possession of the suit land described in the schedule of the plaint. The description of the suit land contained in the schedule of the plaint reads as follows: “Within district South Tripura, Subdivision Sabroom, Tashil-Manubazar, Mouja, Khatian No.241, plots No.784/1023, (Sabek), 2319(Hal) land measuring 1.70 acres, class of land Tilla, bounded on the North by –Lunga, South by Govt. Road, East by Sachindra Kr. Debnath, West by Lunga, over which declaration of right, title and absolute ownership of the plaintiffs and recovery of possession in favour of the plaintiffs after evicting the defendants there from after demolishing all existing structures and plantation thereon is sought for.” The plaintiffs also prayed for mesne profit @ Rs.500/per day w.e.f. 1st January, 2008 till the recovery of the suit land. 4. In short, the case of the plaintiffs was that the suit land was allotted in the name of their father Sachindra Kumar Nath and it was recorded in Khatian No.241, Sabek Plot No.784/1023, Hal Plot No.2319, measuring 1.70 acres and Sachindra Kumar Nath was in possession of the land. Another Plot of land measuring .36 acres recorded in Khatian No.150, Plot Nos.574, 579 and 580 was also situated nearby the suit land wherein Sachindra Kumar Nath used to reside as a farm house. The entire land was recorded in Khatian No.150, measuring 2.06 acres which was finally published on 28.05.1966. In the year 1990 Sachindra Kumar Nath with his family shifted to Rajnagar under Manubazar P.S. and the suit land was lying vacant. The entire land was recorded in Khatian No.150, measuring 2.06 acres which was finally published on 28.05.1966. In the year 1990 Sachindra Kumar Nath with his family shifted to Rajnagar under Manubazar P.S. and the suit land was lying vacant. At that time Sudhir Chandra Biswas, father of defendant No.4 and Samar Chakraborty, defendant No.1 as well as Arun Biswas, defendant No.2 approached Sachindra Kumar Nath to use the suit land for grazing of cows etc. and Sachindra Nath allowed them to possess accordingly on condition that they should vacate the suit land as and when would be asked. It was in the year 1992 that the said permissive possession was given. Sachindra Kr. Nath died on 10.12.1995. The defendants were recorded as permissive possessor in the Khatian published finally and they acquired no right, title and interest in the suit land. After the death of Sachindra Kr. Nath, the plaintiffs being the son and daughters became owner of the suit land and they requested the defendants to vacate the suit land but the defendants did not do so. The plaintiff served a notice dated 01.01.2008 to the defendants to vacate the suit land within 10 days but the defendants did not vacate the suit land. The plaintiffs, therefore, prayed for declaration of their right, title and for recovery of possession with mesne profit. 5. The defendants contested the suit by filing written statement, inter alia, contending that the suit land originally belonged to Sachindra Kumar Nath, the father of the plaintiffs and that the said Sachindra Kumar Nath while was owner in possession of the suit land, by executing a Saledeed, for consideration, dated 11.04.1977, sold out 1.62 acres of suit land to Sudhir Chandra Biswas, father of defendant No.4; Amritlal Biswas, father of defendant Nos. 2 and 3 and Suresh Chandra Chakraborty, father of defendant No.1 and thereby Sudhir Biswas, Amritlal Biswas and Suresh Chandra Chakraborty have became owner of the suit land measuring 1.62 acres and after their death the defendant Nos. 1, 2, 3 and 4 became owner and possessor of the suit land. 6. It was the further case of the defendants that by executing another Saledeed dated 11.04.1977, the said Sachindra Kumar Nath sold out land measuring 0.36 acres of Khatian No.103/153, Plot Nos 574, 479 and 580 to Amritlal Biswas, father of defendant Nos. 2 and 3 and thereby Sachindra Kr. 6. It was the further case of the defendants that by executing another Saledeed dated 11.04.1977, the said Sachindra Kumar Nath sold out land measuring 0.36 acres of Khatian No.103/153, Plot Nos 574, 479 and 580 to Amritlal Biswas, father of defendant Nos. 2 and 3 and thereby Sachindra Kr. Nath exhausted the property and the predecessor of the defendants became owner of the entire land of Sachindra Kr. Nath including suit land. The defendants were never permissive possessors. From the date of purchase the predecessor of the defendants and thereafter the defendants were possessing the suit land exercising all acts of right, title and interest and during the settlement operation, the plaintiffs managed to record the suit land in their names and that evil design of the plaintiffs, the defendants could know only after receipt of notice. The defendants, therefore, prayed for dismissal of the suit. 7. The trial Court considering the pleadings, framed following issues: i. Whether the suit is maintainable in its present form? ii. Whether the plaintiff is entitled for declaration of right, title and absolute ownership over the suit land? iii. Whether the defendants are the permissive possessor over the land of the plaintiff? iv. Whether the plaintiff is entitled for recovery of the possession of the suit land by evicting the defendants after demolishing all the obstructions/structures and plantation thereon? v. Whether the plaintiff is entitled for masne profits @ Rs.550/per day w.e.f. 15th January, 2008 till date? vi. Whether the plaintiff is entitled for any other relief, if so up to what extent? 8. In course of trial, the plaintiff No.1 examined himself as P.W.1 and also examined three more witnesses namelyP.W.2, Nikunja Bihari Debnath; P.W.3, Motilal Debnath and P.W.4 Harish Chandra Debnath. Though examination-in-chief of P.W.3, Matilal Debnath was submitted but he was not produced for cross-examination. So, his evidence was discarded. 9. In support of their case, the plaintiffs proved the following documents: Exbt.1 ­Certified copy of Khatian No.150 of Mouja­Magurchara. Exbt.2 ­Finally published Khatian No.241 of Mouja magurchara. Exbt.3 ­Four No. of Acknowledgement of postal receipts of the Advocates Notice. Exbt.4­ Advocate’s notice of Ld. Advocate Mr. Ratan Datta. Exbt.5 ­Death Certificate of Lt. Sachindra Kr. Nath. Exbt.6 Survival Certificate copy of Lt. Sachindra Kr. Nath. Exbt.2 ­Finally published Khatian No.241 of Mouja magurchara. Exbt.3 ­Four No. of Acknowledgement of postal receipts of the Advocates Notice. Exbt.4­ Advocate’s notice of Ld. Advocate Mr. Ratan Datta. Exbt.5 ­Death Certificate of Lt. Sachindra Kr. Nath. Exbt.6 Survival Certificate copy of Lt. Sachindra Kr. Nath. Exbt.7 Certified Copy of the enquiry Report of Demarcation of Plot No.2319 in Khatian No.241 done by Taheshildar Manubazar T.K. Exbt.8­ Certified copy of Map of Mouja­ Magurchara. 10. Defendant No.1 examined himself as D.W.1 and also examined two more witnesses namely Chiranjit Chakraborty as D.W.2 and Barun Biswas as D.W.3. But D.Ws 2 and 3 were not produced for cross examination though their examination-inchief was submitted by affidavit and so their evidence was also discarded. 11. In support of their case, the defendants proved the following documents: Exbt.D1­ Certified copy of Partcha No.153 in the name of Sachindra Kr. Nath of Mouja Magurchara. Exbt.D2 ­Original registered sale deed no.1­509 executed by Sachindra Nath in favour of Sudhir Biswas and two others. Exbt.D3 ­Original Registered Sale Deed No.1­508 executed by Sachindra Kr. Nath in favour of Amirtalal Biswas. Exbt.D4 ­Reply of demand notice (dated 01/01/2008) issued by Advocate Ratan Datta along with Postal Receipt. Exbt.D5 ­Certified copy of Khatian No.276 of Mouja Magurchara where Plot No.784(sabek) is shown. 12. The trial Court decided the material issues in favour of the plaintiffs and decreed the suit declaring right, title and interest of the plaintiffs over the land described in the schedule of the plaint and also decree of recovery of possession. Mesne profit Rs.500/per day was allowed w.e.f. 15.01.2008. 13. Aggrieved, the defendants preferred Title Appeal No.28 of 2009 in the Court of District Judge, Udaipur and the appeal was dismissed by judgment dated 19.06.2010 and hence, this second appeal. 14. Learned counsel, Ms. Deb (Gupta) submitted that the trial Court as well as the appellate Court failed to consider the documents proved by the defendants marked Exbt.D1 and Exbt.D2. Exbt.D2 is the Saledeed executed by Sachindra Kr. Nath in favour of Amritlal Biswas, Sudhir Biswas and Suresh Ch. Charkaborty, the predecessor of defendant No.1 to 4 and that document being a registered instrument of 30 years old should be presumed to be correctly executed and based on that document alone the Courts below would dismiss the suit of the plaintiffs. Nath in favour of Amritlal Biswas, Sudhir Biswas and Suresh Ch. Charkaborty, the predecessor of defendant No.1 to 4 and that document being a registered instrument of 30 years old should be presumed to be correctly executed and based on that document alone the Courts below would dismiss the suit of the plaintiffs. She has also submitted that the Khatian marked Exbt.D1 shows that the entire land was recorded in the name of Sachindra Kr. Nath including the land of Plot No.784/1023 and in view of that Khatian and the Saledeed it was amply proved that the original owner Sachindra Kr. Nath sold out the suit land to the predecessor of the defendants and handed over possession pursuant to that Saledeed and so, the plaintiffs has got no right, title, interest in the suit land. She has also argued that by executing Exbt.D3 Sachindra Kr. Nath also sold out the land of Plot No.574, 479 and 580 measuring .36 acres but that has not been included in the suit land which shows that Sachindra Kr. Nath actually sold out his entire land to the predecessor of the defendants by executing those two Saledeeds and thereby left nothing for the plaintiffs to claim under those Khatians prepared in the name of Sachindra Kr. Nath. She has also submitted that there is some mistake in respect of the Plot numbers in Exbt.D2 i.e. Saledeed dated 11.04.1977 but that mistake in respect of Plot No. cannot create any doubt about transfer made by Sachindra Kr. Nath since the land may be described either by survey Plot number or by boundary. According to Ms. Deb (Gupta) where the description of the land has been clearly spelt out both by survey plot number and boundary and there is some mistake in the plot number, the boundary shall prevail. 15. On the other hand, Mr. Dutta has submitted that Exbt.D1 is not a finally published Khatian. It does not reflect the actual position of the land in the name of Sachindra Kr. Nath. The description of the land in those Exbt.D2 and Exbt.D3 were bogus. Sachindra Kr. Nath never sold out the suit land by executing any registered Saledeed. Had there was transfer by Sachindra Kr. Nath, the defendants would mutate the land in their name. It does not reflect the actual position of the land in the name of Sachindra Kr. Nath. The description of the land in those Exbt.D2 and Exbt.D3 were bogus. Sachindra Kr. Nath never sold out the suit land by executing any registered Saledeed. Had there was transfer by Sachindra Kr. Nath, the defendants would mutate the land in their name. There was no mutation in the name of the defendants or their predecessors whereas in Khatian No.241 which was finally published on 07.03.1994 the defendants were shown as permissive possessor since they were actually the permissive possessor in the suit land for a temporary period as was allowed by the owner Sachindra Kr. Nath. 16. It is not in dispute that Sachindra Kr. Nath was the original owner of the suit land. The defendants also clearly stated that Sachindra Kr. Nath was the original owner but their case was that Sachindra sold the suit land to the predecessor of defendants. The alleged Saledeed marked Exbt.D2 was executed on 11.04.1977. The suit was instituted on 25.04.2008. The Saledeed was 30 years old but simply because the document was 30 years old and was a registered instrument, it cannot automatically prove the case of the defendants that the suit land was sold by the predecessor of the plaintiffs. The defendants simply presented the Saledeed and did not examine any witness to prove the Saledeed. DW1 stated that it was executed in his presence but except him there is no other evidence to support his contention. If the predecessor of the defendants purchased the suit land in the year 1977 they would mutate it in their names in the record of right. 17. Section 46 of TLR and LR Act prescribes thus— “(1) There shall be maintained for every village a register mutations in such form as may be prescribed. (2) Any person acquiring by succession, survivorship, inheritance, partition, purchase, gift, mortgage, lease or otherwise any right in land, or where such person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property, shall report his acquisition of such right to the village accountant within three months from the date of such acquisition and the village accountant shall give at once a written acknowledgement in the prescribed form for such report to the person making it. (3) The village accountant shall enter the substance of every report made to him under subsection (2) in the register of mutations and also make an entry therein respecting the acquisition of any right of the kind mentioned in subsection (2) which he has reason to believe to have taken place and of which a report has not been made under the said subsection and, at the same time, shall post up a complete copy of the entry in a conspicuous place in the village and shall give written intimation to all persons appearing from the record of rights or the register of mutations to be interested in the mutations and to any other person whom he has reason to believe to be interested therein. (4) Should any objection to an entry made under subsection (3) in the register of mutations be made either orally or in writing to the village accountant, he shall entry the particulars of the objection in the register of disputed cases and shall at once give a written acknowledgement in the prescribed form for the objection to the person making it. (5) The objections made under subsection (4) shall be decided on the basis of possession by the competent authority and orders disposing of objections entered in the register of disputed cases shall be recorded in the register of mutations by the competent authority. (6) After the entries in the register of mutations have been tested and found correct, the entries shall be transferred to the record of rights and shall be certified by such officer as may be prescribed in this behalf.” 18. In view of the above provision any person acquiring right by purchase or otherwise as stipulated in the provision should report the village accountant within three months from the date of such acquisition but neither the predecessor of the defendants nor the defendants took any attempt to record the suit land in their name after alleged purchase. No doubt, they are in possession of the suit land but it is the definite case of the plaintiffs that the defendants were allowed to use the suit land as permissive possessor and that contention of the plaintiffs is supported by the entry made in Khatian No.241 (Exbt.2) wherein in Col.No.24 it is clearly recorded that the defendants were permissive possessors of the suit land. Exbt.2 is a finally published Khatian, published on 07.03.1994. Exbt.2 is a finally published Khatian, published on 07.03.1994. Exbt.1 is also a finally published Khatian published on 28.05.1966. Both the Khatians proves that the suit land was recorded in the name of Sachindra Kr. Nath. If the predecessor of the defendants purchased the suit land they would approach the Revenue Authority to mutate the suit land in their name after purchase as prescribed in Section 46 of TLR and LR Act. Even at the time of revisional survey when finally published Khatian No.241 was published the defendants did not raise their claim that they purchased the suit land and that they should not be recorded as permissive possessor. Mere presentation of the registered Saledeed does not prove transfer in the absence of any other cogent evidence to support the same. 19. Further, as I find Exbt.D2 relates to land of Mouja Magurcharra, Khatian No.103/153, Plot No.784 measuring 1.62 acres butted and bounded by North and West Rajendra Kr. Sen; Southroad; EastMatilal Nath. The boundary of the suit land given in the schedule of the plaint is quite different. It shows that it was north by lunga; south by Govt. road; east bySachindra Kr. Nath and west by lunga. So, the submission of learned counsel, Ms. Deb (Gupta) that the boundary should be accepted and that the suit land was sold by Exbt.D2 cannot be accepted. Neither Khatian No. nor Plot No. tally with the finally published Khatians in the name of Sachindra Kr. Nath. Exbt.D1 is an attested Khatian which contains lot of corrections made in red ink and that cannot be accepted since it is not a finally published one. The said Khatian is also not a Khatian No.103/153 as mentioned in Exbt.D2, but it was simply Khatian No.153. The defendants, therefore, have no case at all. 20. The trial Court rightly declared right, title and interest of the plaintiffs in the suit land and rightly directed recovery of possession. According to the plaintiffs, the defendants were permissive possessor. The plaintiffs failed to adduce any cogent evidence as to the income derived from the suit land. So, the decree of mesne profit was not justified. The judgment and decree allowing mesne profit, therefore, is set aside. 21. The judgment and decree declaring the right, title, interest of the plaintiffs and the decree of recovery of possession is upheld. 22. The plaintiffs failed to adduce any cogent evidence as to the income derived from the suit land. So, the decree of mesne profit was not justified. The judgment and decree allowing mesne profit, therefore, is set aside. 21. The judgment and decree declaring the right, title, interest of the plaintiffs and the decree of recovery of possession is upheld. 22. Prepare appellate decree accordingly and send down the L.C. records along with the copy of this judgment and decree.