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Tripura High Court · body

2019 DIGILAW 17 (TRI)

Prabir Debnath v. Mati Debnath

2019-02-11

ARINDAM LODH

body2019
JUDGMENT : 1. Heard Mr. Suman Bhattacharjee, learned counsel appearing for the appellants as well as Mr. A.K. Deb learned counsel appearing for the respondents. 2. This appeal under section 100 of the Code of Civil Procedure, 1908 has been filed by the appellants against the judgment dated 24.11.2017 passed by the Learned Additional District Judge, (Sri S.K. Majumder), Unakoti Judicial District, Kamalpur in Title Appeal No.03 of 2016 dismissing the appeal and upholding the judgment dated 08.06.2016 passed by the learned Civil Judge (Junior Division) Kamalpur, Unakoti Judicial District in Title Suit No.02 of 2015. 3. The present second appeal has been preferred against the concurrent finding arrived at by both the Courts below. 4. The case of the plaintiff-respondents is that the suit land was allotted to them by the State of Tripura through Collector vide allotment order No.37 dated 22.12.1983. Since then, the plaintiff-respondents had been possessing the suit land till they were dispossessed by the defendants in the month of November, 2010. In the year 2013, the plaintiffs were also given permission to sell some portion of the land. The plaintiffs have categorically stated that on the basis of this allotment order (Exbt-5), they had acquired right, title and interest over the suit property. On the other hand, the appellants, who were originally the defendants of the suit, have claimed right, title and interest by way of adverse possession for above 40 years. 5. The respondent-plaintiffs filed a suit for declaration of right, title and interest over the immovable property and for recovery of possession of a land measuring 0.20 acres described in the schedule of the plaint. The reliefs sought for in the said suit (T.S. No.2 of 2015) are:- “(i) Granting declaration of exclusive right, title and interest of this plaintiffs over the suit property directing that the plaintiffs do recover the khas possessions of the suit land and property by evicting the defendants there from. (ii) Granting money decree for legitimate mesne-profit, compensation of this suit property, both for the periods past and future from the defendants. (iii) Granting all other relief/reliefs as the Ld. Court deemed fit & proper.” 6. (ii) Granting money decree for legitimate mesne-profit, compensation of this suit property, both for the periods past and future from the defendants. (iii) Granting all other relief/reliefs as the Ld. Court deemed fit & proper.” 6. The defendants mainly resisted the suit on the following grounds:- “(i) Their predecessor purchased possessory right of some government khas land including the suit land form one Manik Debbarma for a consideration of Rs.130/-(Rupees one hundred thirty only) and since then they have been possessing the land; (ii) They have been possessing the land for the last 40 years; (iii) The plaintiffs predecessor had illegally obtained the allotment order; (iv) Though the plaintiffs has title over the suit land described in the schedule of the plaint but since they have been possessing the land for almost 40 years, they have acquired title over the land by way of adverse possession and (v) The right of the real owner that is the plaintiffs has been extinguished due to possession of the land by the defendants for the such long years.” 7. The Trial Court framed the following issues :- “(1) Is the suit is maintainable in its present form? (2) Is there any cause of action for filing the present suit? (3) Whether the plaintiffs have right, title and interest over the suit land? (4) Whether the defendants have illegally dispossessed the plaintiffs? (5) Whether the plaintiffs side is entitled to get the decree as prayed for? (6) Whether the plaintiffs side is entitled to get any other relief(s)?” 8. I have perused the issues framed by the learned Trial Court, which was dealt with by both the Courts below. The learned Trial Court as well as the Appellate Court has held that the plaintiff-respondents have been able to prove their right, title and interest as well as their possession since the date of such allotment of the suit land. Both the Trial Court as well as the Appellate Court had taken note of the allotment order issued by Collector as well as Exbt-C, a purported report of “Amin”, on which the defendants were claiming right, title and interest over the suit land. Exbt-C, is a report on the basis of the inquiry made by an “Amin” of the settlement department, Government of Tripura. It is submitted that this Document (Exbt-C) was also considered during the course of revenue proceeding before the competent authority. Exbt-C, is a report on the basis of the inquiry made by an “Amin” of the settlement department, Government of Tripura. It is submitted that this Document (Exbt-C) was also considered during the course of revenue proceeding before the competent authority. The competent authority under TLR & LR Act, while examining these documents, also did not rely upon the said report and Exbt-C has been discarded by the Revenue Officer in the course of proceeding. This document, Exbt-C, was further relied upon by the defendants during the proceeding before the Courts below. After taking into evidence and the documents being considered, both the Courts below have arrived at a finding that the plaintiff-respondents have been able to prove their right, title and interest over the land in question and decreed the suit in favour of the plaintiff-respondents. 9. As proposed by the learned counsels appearing for the parties, following substantial questions of law have been formulated:- “(i) Whether the continuous possession for 40 years after illegal dispossession of the true owner causes accrual of adverse title by default? (ii) Whether any document can be taken into evidence by a Civil Court if a list thereof is not given in the plaint as well as in the examination in chief by the plaintiff? (iii) Whether the non filing of the suit for recovery of possession within the period of limitation indicates the recovery right of the plaintiff in view of the provision contained in Section 27 of the Limitation Act, 1963? 10. After thoughtful consideration of the above proposed substantial questions of law, according to me, the first and third points may be tied up together in the process of determination of the merits of the present appeal in the light of the concurrent findings of both the Courts below. 11. Mr. A.K. Deb, learned counsel resisting the above formulated substantial questions of law has submitted that none of these questions are substantial questions of law in the purview of the definition of second appeal under Section 100 of Code of Civil Procedure, 1908 as well as under Section 103 of the Code of Civil Procedure, 1908 and the present appeal does not deserve to be admitted for hearing. 12. Mr. 12. Mr. S. Bhattacharjee, learned counsel appearing for the appellants has emphasized on Section 27 of the Limitation Act to justify the substantial questions of law that the continuous possession of 40 years after illegal dispossession of the true owner, the defendant-appellants have become the owner of this suit property and the right, title and interest of the real owner i.e., the plaintiff-respondents have been extinguished. 13. It was urged on behalf of the appellants that in view of the principle underlying Section 27 of the Indian Limitation Act, 1908, which principle is not confined to suits and applications for which limitation is prescribed under that Act but is of general application, the plaintiffs’ right to the suit properties must be held to have been extinguished. In other words, the contention was that in view of the aforementioned provisions, the plaintiffs had not merely lost their right to sue for possession of the suit properties, their right in the properties itself had been extinguished. It is well settled that the principle underlying Section 27 of the Indian Limitation Act, 1963 is of general application. It is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act. 14. Having regard to the said submission, I have perused the evidence adduced by the parties, particularly, the evidence of plaintiffs to find out whether the plaintiffs have been able to prove their title over the suit land as well as their dispossession by the defendant-appellants. Furthermore, whether they have filed a suit within the statutory period prescribed for recovery of possession. 15. On the other hand, it also should be taken into account as to whether in view of Section 27 of Limitation Act, which principle is not confined to suits and applications for which limitation is not prescribed under the Act but is of general application, the plaintiffs’ right, title and interest to the suit property must be held to be extinguished. 16. In the light of above projected questions, it is necessary to extract Section 27 of the Limitation Act. It reads as under:- “Extinguishment of right to property.- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” 17. 16. In the light of above projected questions, it is necessary to extract Section 27 of the Limitation Act. It reads as under:- “Extinguishment of right to property.- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” 17. The broad facet of this provision, as I read, is that the person having the right to possession suffers his right or title to the property barred by law of limitation. A plain reading crystalises that Section 27 of the Limitation Act does not in any manner speak about the conferment of title to wrongdoer, but extinguishment of title of the real owner. It is only an exception to the general effect that the Law of Limitation bars the remedy but does not extinguish the right itself. In other words, Section 27 speaks of general application and it is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act. This provision even does not contemplate for seeking of declaration of true owner, but for the person claiming adverse possession against the true owner to claim title by prescription. 18. True it is, a person in possession of a land in assumed character of owner and exercising peacefully the ordinary right of the ownership has a perfectly good title against all but the rightful owner. But if the rightful owner does not come forward and assert his title by way of claiming recovery of possession within the period prescribed by the provisions of the statute of limitation applicable to the case his right is forever extinguished and the owner in possession acquires an absolute title. 19. Here, in my opinion, it is important to note that Section 27 and Article 65 of Limitation Act are inter-related and corollary to each other and the principles underlying these provisions have to be read conjointly in a suit for recovery of possession based on title. 19. Here, in my opinion, it is important to note that Section 27 and Article 65 of Limitation Act are inter-related and corollary to each other and the principles underlying these provisions have to be read conjointly in a suit for recovery of possession based on title. For convenience, Article 65 of the Limitation Act, 1963 may be reproduced herein below:- “Description of suit Period of limitation Time from which period begins to run 65.(a) Where the suit is by a remainder-man, a reversionary (other than a landlord); or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of the remainder man, reversionary or devisee, as the case may be falls into possession; (b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female the possession of the defendant shall be deemed to become adverse only when the female dies. (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. Twelve years When the possession of the defendant becomes adverse to the plaintiff. 20. The above definition has concretized that as per Article 65 of the Act, 1963 for possession of immovable property or any interest therein based on title, the limitation period is 12 years, when the possession of the defendant becomes adverse to the plaintiff. That is the reason as to why within the framework of the provisions of law, in suits relating to possession based on title, where defendant raises the plea of adverse possession, it shifts the burden on the defendant pleading adverse possession where plaintiff proves his right, as plaintiffs? proof of right or title is enough to succeed for recovery of possession and it is for the defendant to prove his plea of adverse possession and failure of which, once the plaintiff has proved his title he is entitled to the relief of possession with any further relief of declaration or consequential reliefs as the case may be. 21. This is now well settled that mere long and continuous possession on the property by itself is not enough for claiming right by adverse possession. 21. This is now well settled that mere long and continuous possession on the property by itself is not enough for claiming right by adverse possession. In a catena of decision the Apex Court held that adverse possession is a hostile possession by way of clearly asserting hostile title in total denial of the title of the real owner. Party claiming adverse possession must plead and prove that his possession is peaceful, open and continuous and it must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion of the actual owner are the most important factors that are to be accounted in cases of this nature since adverse possession plea is blended question of fact and law and the person pleading adverse possession has no equities in his favour since he is trying to defeat the right, title and interest of true owner and it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 22. The Apex Court in Amrendra Pratap Singh V. Tej Bahadur Prajapati & ors., reported in AIR 2004 SC 3782 defining adverse possession has observed thus:- “22. What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. 23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one's own rights over property is also capable of being called a manner of 'dealing' with one's property which results in extinguishing one's title in property and vesting the same in the wrong doer in possession of property and thus amounts to 'transfer of immovable property' in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.” 23. In the case at hand, both the Courts below after assessing the evidence, have arrived at a finding that the plaintiff-respondents have been able to prove that they were illegally dispossessed by the defendants-appellants and further, they filed the suit for recovery of possession based on title at the strength of the allotment order within the statutory period of 12(twelve) years prescribed for instituting such suit under Article 65 of the Limitation Act. I also do not find any wrong in the findings of the Courts below in regard to possession and dispossession of the suit land as claimed by the respective parties. 24. After perusal of the plaint as well as the findings of both the Courts below, it is established that the present suit is for recovery of possession based on title. The plaintiffs have claimed right, title and interest over the property on the basis on this allotment order which is a document of title conferred by the Government in favour of a person who is found to be landless. In furtherance thereof, indisputably, the plaintiff, were also given statutory sale permission to transfer some portion of land. This further proves that plaintiffs were having the right, title and interest over the suit land. Further, on the basis of the allotment order, the Record of Right was also created in favour of the plaintiff-respondents after observing all formalities in consonance with the relevant provisions of the TLR & LR Act, 1960. This further proves that plaintiffs were having the right, title and interest over the suit land. Further, on the basis of the allotment order, the Record of Right was also created in favour of the plaintiff-respondents after observing all formalities in consonance with the relevant provisions of the TLR & LR Act, 1960. Khatian (Record of Rights) is a good piece of evidence of possession under Section 35 of the Evidence Act having a presumptive value under Section 114 of the Evidence Act unless the contrary is proved by adducing sufficient evidence in rebuttal. 25. Section 43 of the Tripura Land Revenue and Land Reforms Act, 1960 (in short “TLR & LR Act”) deals with the procedure of publication and creation of khatian (Record of Rights). The Section reads as under:- “43. (1)When a record of rights has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publication, to any entry therein or to any omission there from. (2) When all objections have been considered and disposed of in accordance with the rules made in this behalf, the survey officer shall cause the record to be finally published in the prescribed manner. (3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct.” 26. On a plain reading of the aforesaid provision of the TLR & LR Act, 1960, it is crystal clear that before creating a finally published khatian, the competent authorities have to follow certain procedures. At the first instance, after consultation with the map pertaining to an area, process of preparation of preliminary Record-of-Right is commenced (this stage is commonly known as “Khanapuri”), then, objections, if any, are disposed of (this stage is commonly known as “Bujharat”). Thereafter stage of “attestation” comes when assessment of revenue is made. At the first instance, after consultation with the map pertaining to an area, process of preparation of preliminary Record-of-Right is commenced (this stage is commonly known as “Khanapuri”), then, objections, if any, are disposed of (this stage is commonly known as “Bujharat”). Thereafter stage of “attestation” comes when assessment of revenue is made. Then, the survey officer shall publish a draft of the record, the stage is being commonly known as “Draft Publication” and “Objection” are invited under Section 43(1) of TLR & LR Act and after disposal of such objection, it is finally published which is commonly known as “Finally Published Khatian”, i.e., the Record of Right is created in favour of a person symbolizing his possession over a particular plot of land. 27. In the case at hand, also, after the allotment order the natural presumption is that the plaintiff–respondents were to be in possession of the allotted land and subsequently, the record of right was created in favour of the predecessor of the plaintiffs after following all the formalities as are envisaged in Section 43 of the TLR & LR Act as narrated here-in-above. In my view, had the defendants been ever in possession of the suit land, then, they must have raised objection against creation of Record of Rights in favour of the predecessor of the plaintiffs or in the name of the plaintiffs. 28. In the backdrop of the above discussion and principles delineated therein, in my considered view, the question of extinguishing the title of the real owner by operation of Section 27 of the Act, 1963 will only arise when the defendant party claiming the benefit of the said provision has successfully established his adverse possession for a period of 12 years. In the case at hand, while the plaintiffs have been able to prove their title, the defendants-appellants have miserably failed to establish their acquisition of right or title by way of adverse possession to claim that by prescription of law, the plaintiffs’ right, title and interest over the suit property is extinguished by way of attracting Section 27 of the Limitation Act, 1963. 29. 29. Keeping in mind, the provisions of law as afore-stated, this Court is not inclined to interfere with the findings of both the Courts below to the effect that while the plaintiffs were in possession of the suit land by dint of the allotment order, they were dispossessed by the defendants, which led them to institute the present suit for recovery possession. 30. I reiterate that the plaintiffs have been able to prove their title over the suit land and their dispossession from the suit land and within 12 years of such dispossession they instituted the suit for declaration and recovery of possession of the suit land. Whereas, the defendants have failed to prove their title over the suit land by dint of purchase as discussed hereinabove and also has failed to discharge their burden that they have acquired title over the suit land by way of adverse possession. 31. Now, dealing with the second substantial question of law as formulated whether a document (Exbt.C) can be introduced for the first time in course of evidence without filing the same along with the plaint in view of Order 7 Rule 14. Exbt-C is a document constituting inquiry report prepared by an “Amin” of the Settlement Department, Govt. of Tripura. I have perused the evidence and materials on record. It is true that the document, which was filed at the time of adducing evidence, was allowed to be taken into evidence without any objection by the plaintiffs. Objection, if not raised before the document was brought into evidence, and was admitted with exhibit mark without objection, it cannot be raised at a later stage. When the document was introduced in course of trial, the plaintiff-respondents were well aware of the contents of the document. Despite the opportunity to raise objection, the plaintiff-respondents allowed the document to take into evidence by the learned Trial Court. 32. The Hon’ble Supreme Court in the case R.V.E.V Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple reported in AIR 2003 SC 4548 has held as under:- “……. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. 32. The Hon’ble Supreme Court in the case R.V.E.V Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple reported in AIR 2003 SC 4548 has held as under:- “……. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The Objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directorate towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit.’ An objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the documents has been admitted in evidence and marked as a exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play.” 33. Keeping in mind the above ratio of law, the learned District Judge has dealt with the situation in the context of the present case, and held that mere admission of the inquiry report (Exbt-C) does not automatically prove the case of the defendant-appellants. Here, I find the appellant-defendants did not examine the “Amin” who surveyed the suit land and submitted the report. Even, the plaintiffs were not noticed about the survey of land. However, even if the document, Exbt-C has been admitted to evidence, but, it does not carry any credence to the determination of the substantial question of law as considered by this Court. 34. Moreso, it is now well settled that the report of Survey Commissioner cannot have a superior value than that of the other evidence gathered during the course of trial. Above all, the plaintiff-respondents have been able to prove their title over the suit land in view of the allotment order consequent to which khatian has also been created in the name of the plaintiff-respondents 35. Above all, the plaintiff-respondents have been able to prove their title over the suit land in view of the allotment order consequent to which khatian has also been created in the name of the plaintiff-respondents 35. It would be apposite to take note of Section 103 of the Code of Civil Procedure, 1908 which postulates the extent of power of the High Court in a second appeal. It reads as under:- “103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal.- (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.” 36. After careful analysis of the oral as well as documentary evidence and the findings of both the Courts below being revisited by this Court, I find no wrong in determining the relevant facts in issue involved in the present suit to exercise the power of this Court in second appeal in view of Section 103 of CPC as afore stated. 37. In the result, in my considered view, this is not a fit case to interfere with the concurrent findings of both the Courts below and, hence, the second appeal preferred by the appellants deserves no merit, and hence, dismissed. 38. Accordingly, the judgment and decree passed by the Courts below are affirmed and thus, upheld. However, there shall be no order as to costs.