Research › Search › Judgment

Tripura High Court · body

2021 DIGILAW 138 (TRI)

Kshitindra Chandra Biswas v. State of Tripura

2021-08-26

S.TALAPATRA

body2021
JUDGMENT This is a petition under Article 227 of the Constitution of India challenging the order 04.12.2019 delivered in Revision Case No. 461/17 in the proceeding under Section 95 of the TLR & LR Act, 1960 by the District Collector. The petitioner has urged this court for directing the District Collector to incorporate the name of the petitioner and the respondents No. 7 to 16 and the proforma respondents no. 17 to 35 as possessor of the land by virtue of the unregistered deed in the computerized Khatians No. 1216/6 and 1216/7 (Annexure-5 and Annexure-6 to the petition) [2] A short resume of relevant facts may be introduced at the outset. The predecessor of the petitioner namely Digendra Chandra Biswas had by an unregistered deed of exchange dated 13.05.1964 exchanged the property left by him in the erstwhile East Pakistan (Now Bangladesh) with the property of one Abdul Aziz and others situated at Agartala, India. Accordingly, some of the lands pertaining to CS Plots no. 3440, 3442 and 3435/7065 recorded in the old Khatian No. 2376 of Mouja Ramnagar were mutated in the name of Digendra Chandra Biswas. But in the Khatian, Abdul Aziz and others were shown rayat (holder of the title) and Dignedra Chandra Biswas was shown as the possessor by virtue of the unregistered deed. On 07.08.1973, Digendra Chandra Biswas passed away leaving behind his four sons and three daughters. The names of legal heirs of Digendra Chandra Biswas (as reflected survival certificate dated 31.01.1989) are as follows: Sl No. Name of the Survivors Relationship with deceased Age 1 Sri Sacindra Biswas Son 54 yrs. 2 Sri Birendra Biswas Do 51 yrs 3 Kshitendra Biswas Do 43 yrs 4 Sri Sitendra Biswas Do 38 yrs 5 Smti Kamala Rani Bhowmik w/o Srish Bhowmik Daughter (married) 59 yrs 6 Smti Chapala Rani Roy w/o Dinabandhu Roy. Do 57 yrs 7 Smti. Usha Rani Choudhury w/o Promode Choudhury Do 45 yrs [3] The petitioner has produced the copy of the survival certificate dated 31.01.1989 (Annexure 1 to the petition). Copies of the unregistered deed of exchange dated 13.05.1964 and Khatian No.2276 have been produced with this petition respectively as Annexure 2 and Annexure 3. It is the allegation of the petitioner that he stayed away from the land in question in connection with his service under the Department of Food. Copies of the unregistered deed of exchange dated 13.05.1964 and Khatian No.2276 have been produced with this petition respectively as Annexure 2 and Annexure 3. It is the allegation of the petitioner that he stayed away from the land in question in connection with his service under the Department of Food. Taking the advantage of his temporary absence, the name of his father, Digendra Chandra Biswas, has been deleted without bringing his legal heirs in his place. The old Khatian No. 2376 had been renumbered as khatians No. 1263/6 and 1263/7. At the time of publishing the computerized Khatian, the respondents No. 7 to 14 and 15 have been shown as the possessor by virtue of ‘the unregistered deed’. Those respondents, according to the petitioner, practised fraud in connivance with officials of the revenue department. The respondent No. 15, according to the petitioner, has used his official position for that purpose. He was working as the Deputy Collector and Magistrate at the relevant point of time being Tripura Civil Service (TCS) officer those Khatians have been produced for inspection of this court. [4] Having gathered the knowledge of such occurrence, the petitioner along with Proforma-respondents No. 17 to 20 filed the revision petition under Section 95 of the TLR & LR Act, 1960. It has been asserted by the petitioner that when in the year 1980 some part and parcel of the land pertaining old plot no. 3440 (part) and 3442 (part) of khatian no 2376 were acquired vide the declaration under Section 6 of the Land Acquisition Act, 1894, the name of Abdul Aziz and others were shown as jotdar (rayat) and the father of the petitioner Digendra Chandra Biswas, was shown as occupier on the basis of the unregistered deed. Then, the petitioner and his brother approached the LA Collector and got the entire award equally distributed amongst all sons and daughters of Digendra Chandra Biswas since deceased. Thereafter, they filed a petition under Section 18 of the LA Act, 1894 for reference toward determining the proper market value of the acquired land in order to assess the just compensation for the said acquisition. By the judgment and award dated 11.08.2004, the LA Judge enhanced the compensation while answering the said reference being Misc. LA 82 of 1994. All those documents relating to the said acquisition were placed before the respondent No. 2, the District Collector. By the judgment and award dated 11.08.2004, the LA Judge enhanced the compensation while answering the said reference being Misc. LA 82 of 1994. All those documents relating to the said acquisition were placed before the respondent No. 2, the District Collector. In the said proceeding under Section 95 of the TLR & LR Act, the respondents no. 7, 8, 14, and 15 filed their written objection against the prayer made by the petitioner and others. Those respondents have contended that they are using the said land for the last 40 years and as such, in their favour a vested right has accrued and the petitioner and others do not have any locus standi to seek correction of the record of right by invoking provision of Section 95 of the TLR & LR Act 1960 as they are not in possession. [5] The petitioner has quite emphatically submitted that there is no dispute that the entire land was under possession of Digendra Chandra Biswas as the possession was handed over to him by virtue of the unregistered deed of exchange. Hence, after the death of Digendra Chandra Biswas, names of the parties herein being the legal heirs of Digendra Chandra Biswas were to be recorded occupier of the said land. The respondent no. 2 has failed to appreciate the said relevant fact and made the entry showing that the respondents No. 7 to 13, 14 and 1 5 are the occupier by virtue of ‘the unregistered deed’. It has been further asserted that in Khatian no. 3276 (Annexure 4 to this petition) which was finally published on 12.06.1967, Digendra Chandra Biswas was shown in possession of the land under reference by virtue of the unregistered deed, but subsequently the names of Digendra Chandra Biswas was deleted and the names of the respondents no. 7 to 13, 14 and 15 have been incorporated as possessor by virtue of ‘the unregistered deed’ of exchange. The petitioner has succinctly stated that in 1967, the respondent No. 14 and 15 even were not born or was a baby. Hence, the claim that the respondents No. 14 and 15 had been possessing the land is not trustworthy and is indicative of manipulation. Even, the records of Misc.LA 82 of 1984 was not considered by the District Collector while disposing the said revision petition. Hence, the claim that the respondents No. 14 and 15 had been possessing the land is not trustworthy and is indicative of manipulation. Even, the records of Misc.LA 82 of 1984 was not considered by the District Collector while disposing the said revision petition. As a result, by the order dated 04.12.2019 Annexure 13 to this petition, the respondent No. 2 has rejected the revision petition filed by the petitioner along with others. As stated, the said petition was filed for correction of the record of right in respect of Khatian No.1263/6 and 1263/7 under Mouja and Tehsil Ramnagar. [6] The said petition was seriously contested by the respondents No.14 and 15 and they had categorically stated that the petitioner and others do not have any right to seek the correction of record of right by incorporation of their names as the occupiers of the land pertaining RS plots no. 4322. 5368 5267, 5328, 4243 and 4244 which are recorded in favour of the respondents No. 7 to 13, 14, and 15 as possessor by virtue of ‘the unregistered deed’. Those respondents, however, have admitted that long back, one Abdul Aziz left for Banglahesh with bag and baggage and permanatly stayed there with his family. At the time of leaving for Bangladesh, Abdul Aziz and Digendra Chandra Biswas had made exchange of their respective lands. But later on, those respondents have stated that after death of Digandra Chandra Biswas, his two sons Sachindra Biswas and Birendra Biswas possessed the land and resided there with their family members. They are continuing their possession in the said land in question by constructing dwelling huts etc. Birendra Biswas died in 1966 whereas Sachindra Chandra Biswas died in 2006. During the life of Sachindra Biswas and Birenda Chand Biswas, the daughters of Sachindra and Birendra had been married and after their marriage they started living at their matrimonial home. After death of Sachindra and Birendra theirs sons namely, Parimal Biswas, Nirmal Biswas, Anjan Kr. Biswas and Ashis Biswas have been occupying and possessing land by renovating the house constructed by their predecessor. They have relied on a field inquiry report dated 06.03.2012 as carried out the Sub Divisional Magistrate, Agartala. In the said field inquiry report, it has been observed that the land is under the physical possession of Parimal Biswas, Nirmal Biswas, Anjan Biswas, and Ashis Biswas. They have relied on a field inquiry report dated 06.03.2012 as carried out the Sub Divisional Magistrate, Agartala. In the said field inquiry report, it has been observed that the land is under the physical possession of Parimal Biswas, Nirmal Biswas, Anjan Biswas, and Ashis Biswas. The relevant part of the field inquiry report as extracted in the order dated 04.12.2019 is reproduced for better reference: Khatian No. RS Plot Name of the possessor (land status) Name of Rayat 1263/1-7 4322 1. Parimal Biswas, 2. Nirmal Biswas S/o Sachindra Ch. Biswas, 3. Anjan Kr. Biswas, 4. Ashs Biswas, S/o Birendra Ch. Biswas Md. Abudl Aziz Do 5336 1. Parimal Biswas, 2. Nirmal Biswas S/o Sachindra Ch. Biswas Do Do 5337/p 1. Parimal Biswas, 2. Nirmal Biswas, S/o Sachindra Ch. Biswas 3. Anjan Kr. Biswas 4. Ashis Biswas, S/o Birendra Ch. Biswas Do Do 5338 1. Anjan Kr. Biswas, 2. Ashis Biswas S/o Birendra Ch. Biswas Do Do 4243 4244 1. Parimal Biswas, 2. Nirmal Biswas S/o- Sachindra Ch. Biswas, 3. Anjan Kr. Biswas, 4. Ashis Biswas S/o Birendra Ch. Biswas Do [7] The official respondents No. 1 to 5 have also filed their reply supporting the order dated 04.12.2019. They have stated that on the basis of the field survey report, the said order has been passed. Even the official respondents have raised objection as regards the maintainability of this petition, as according to them, again an order passed in the proceeding under section 95 of the TLR & LR Act,1960, the appeal lies. This issue is no more res integra as this court has settled that no appeal lies against an order passed in the proceeding under Section 95 of the TLR LR Act, 1960. They have further stated that the unregistered deed was not valid in the eye of law for the deducing title in favour of Digendra Chandra Biswas or Birendra Chandra Biswas. Further, it is submitted that as per memorandum dated 20.10.2019, no revenue officer under the TLR & LR act 1960 is permitted to incorporate any entry like ‘illegal possessor’, ‘adverse possessor’, ‘permissive possessor’ purchased by un-registered deed under the remarks column in the record of right. Therefore, the claim of the petitioner cannot be entertained. [8] Mr. Further, it is submitted that as per memorandum dated 20.10.2019, no revenue officer under the TLR & LR act 1960 is permitted to incorporate any entry like ‘illegal possessor’, ‘adverse possessor’, ‘permissive possessor’ purchased by un-registered deed under the remarks column in the record of right. Therefore, the claim of the petitioner cannot be entertained. [8] Mr. S. Lodh, learned counsel appearing for the petitioner has submitted that if no entry can be entered in terms of the memorandum dated 20.10.2019 then the names of the respondents no.7 to 13, 14 and 15 ought not have been incorporated. The District Collector has made a serious mistake by comparing the entries as existed in the records of right with the new entries. Mr. Lodh, learned counsel has further submitted that the District Collector has not deliberately considered the records relating to the land acquisition proceeding to find out the legal heirs of Digendra Chandra Biswas. Those records clearly bear testimony of the rights of all legal heirs of Digendra Chandra Biswas. In this regard, he has referred to the judgment of the LA Judge in the reference proceeding being Misc.LA 82 of 1994. Form the award dated 11.08.2004, it can be gathered that all the legal heirs of Digendra Chandra Biswas have been declared to be entitled to have the share of the award. The legal heirs whose names appeared in the award dated 11.08.2004 are as follows: 1. Sachindra Biswas 2. Biredna bisws, 3, Khitendra Biswas. 4. Sitendra Biswas, 5, Kamala Rani Bhowmik, 6. Chapal Rani Ray, 7.Usha Rani Roy Choudhury [9] The District Collector has not taken cognizance of the said judicial order which cannot be put to further interpretation or analysis. Mr. Lodh, learned counsel has submitted that the said award was passed after due inquiry by the LA Judge. His finding carries a binding force so far the petitioner and others in respect of their right over the said land is concerned. The District Collector ought not have discarded the said judicial records. Mr. Lodh, learned counsel has further submitted that when one legal heir enters in possession by virtue of any right of the predecessor, even if one of the legal heirs leaves the possession temporarily, his right over possession is not jeopardised. In support of that contention, Mr. The District Collector ought not have discarded the said judicial records. Mr. Lodh, learned counsel has further submitted that when one legal heir enters in possession by virtue of any right of the predecessor, even if one of the legal heirs leaves the possession temporarily, his right over possession is not jeopardised. In support of that contention, Mr. Lodh, learned counsel has clearly submitted that Abdul Aziz and others delivered the possession to Digendra Chandra Biswas by the said unregistered deed. That fact has not been disputed by partly including the District Collector. Possession can be maintained by the other legal heirs. That possession has to be deemed to be possession by all legal heirs. In this respect, he has referred to a decision of the apex court in Kailash Rai vs. Jai Jai Ram and Ors. reported in 1973 (1) SCC 527 where the apex court has held that the normal principle is that possession by one co-sharer is possession for all. Further, even when one co-sharer is in possession of the land, the other co-sharer must be considered to be in the constructive possession of the land. Kerala High Court had occasion to observe and lay down the law in respect of the possessory title in the following words: “21. Possessory title is good title against all though not against the true owner. Therefore, possessory title is heritable, divisible and transferable. Possessory title is distinct and different from proprietary title. Hence, the finding entered by the courts below that since the plaintiff could not prove title to the property, she is not entitled to get partition of the property is bereft of any merit. The partition was sought in respect of the possessory right exercised by Aaleema Umma. That will hold good against all, though it may not hold against the true owner. So long as the defendants are concerned, their possession was found to be only a joint possession along with the plaintiff. S.A. No.642 of 2000 Gong by the findings entered earlier, it was clear that the property was in the joint possession of Aleema Umma and Muhammed, the defendant. So long as the defendants are concerned, their possession was found to be only a joint possession along with the plaintiff. S.A. No.642 of 2000 Gong by the findings entered earlier, it was clear that the property was in the joint possession of Aleema Umma and Muhammed, the defendant. The decisions cited supra were followed by another Bench of this Court in Philip and Others v. State of Kerala & Others – (1984 (1) KLT 213 and in Krishnankutty Nari v. Subramanian (1998(1)KLT 886).” [10] Having appreciated the submission of the learned counsel what surfaces before this court is that the legal heirs of Digendra Chandra Biswas were in joint possession of the land under reference. The LA Judge had recognized that right while he had passed the award dated 11.08.2014 (Part of Annexure 10 to the petition). The delivery of possession was made to Digendra Chandra Biswas on executing the undisputed document i.e. ‘the unregistered deed’ of exchange. None has questioned that document. But correctly, it has been observed that no title can be declared or derived by virtue of that deed. So far the possession is concerned, it is manifest from the records. Possessory right is heritable, divisible and transferable. Possessory right is distinct from the proprietary title. The District Collector by overlooking the records of the land acquisition reference being Misc. LA 82 of 1994 has committed a serious error in law. It has been established by the petitioner that on 11.08.2004, all the legal heirs of Digendra Chandra Biswas, since deceased, were in joint possession of the said property pertaining to CS plots No 440/p 3442/p measuring to 3.30 acre recorded in the Khatian 2376 under mouja Ramnagar sheet No. 2. The apex court has umpteen times observed that a co-sharer can maintain the dominion and control over the land, but possession remains for all the co-sharers. [11] In Kailash Rai (supra), the apex court had occasion to observe that even when one co sharer is in possession of the land, other co-sharers must be considered to be in constructive possession of the said land. ‘Possession’ wields ordinarily the meaning not only of actual physical possession but also of the constructive possession. Therefore, no plea of ouster of the petitioner and others would sustain in law. ‘Possession’ wields ordinarily the meaning not only of actual physical possession but also of the constructive possession. Therefore, no plea of ouster of the petitioner and others would sustain in law. It has to be deemed and held that the petitioner and others were also in possession over the land under reference. Hence, the impugned order dated 04.12.2014 is interfered with and set aside. The District Collector is directed to correct the record by entering the names of the petitioner and other legal heirs of Digendra Chandra Biswas whose names have not been incorporated in the records of right being Khatians No. 1263/ 1-7, in respect of RS Plots No. 4322, 5336, 5337, 5338, 4243 and 4244. It is made absolutely clear that the memorandum dated 20.02.2019 cannot have any relevance in correcting any entry which was borne in the record of right. In view of the above observation and direction, this petitions stands allowed. The correction as directed shall be completed within a period of 3 (three) months from the date of receiving a copy of this order from the petitioner. There shall be no order as to costs.