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2022 DIGILAW 118 (TRI)

Sumesh Das v. Chanchal Kumar Das

2022-03-11

ARINDAM LODH, S.G.CHATTOPADHYAY

body2022
JUDGMENT Arindam Lodh, J. - Heard Mr. SM Chakraborty, learned senior counsel assisted by Ms. A. Pal, learned counsel appearing for the defendant-appellant No. 1 here-in-after referred to as the defendant as well as Mr. S. Lodh, learned counsel for the respondents. 2. This is an appeal filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 31.05.2019 passed by the learned Civil Judge, Senior Division, Court no. 1, Unakoti District, Kailasahar in case No. Title Suit 31 of 2018 decreeing the suit of the plaintiff-respondent no. 3 against the defendant no. 1-appellant. 3. The suit out of which the present appeal arises was instituted by the respondents of the present appeal being the plaintiffs impleading the present appellant as defendant no. 1 for declaration of right, title and interest of the plaintiff no. 3 over the suit land described in the plaint schedule and for recovery of khas possession thereof and for compensation and mesne profit. 4. The facts of the case, as projected by the learned trial court, may be reproduced here-in-below:- "2. The brief fact of the plaintiffs' suit, inter alia, is that the suit land described in first schedule of the plaint originally owned and possessed by plaintiff No. 1 & 2 and plaintiff No. 1 & 2 filed TS 08 of 2011 against the plaintiff No. 3 and defendant No. 2 of this suit for declaration title and recovery of possession of the suit land and by judgment and decree dated 02.12.2011 and 07.12.2011 passed by Civil Judge, Sr. Divn., Kailashahar it was declared that the plaintiff No. 1 & 2 has right, title and interest over the suit land and decree of recovery of possession was granted from the plaintiff No. 3. Divn., Kailashahar it was declared that the plaintiff No. 1 & 2 has right, title and interest over the suit land and decree of recovery of possession was granted from the plaintiff No. 3. Thereafter, plaintiff No. 1, 2 & 3 filed TS 08 of 2012 against the defendant No. 2 to 5 for declaration that the plaintiffs have every right to maintain their possession and for perpetual injunction against the defendant No. 2 to 5 and by judgment and decree dated 06.01.2017 and 13.01.2017 the said suit was decreed declaring that plaintiffs have right to maintain their possession over the suit land and defendant No. 2 to 5 and their men and agents were perpetually injuncted and restrained from entering into the suit land and or in any way disturbing the peaceful enjoyment and possession of the plaintiffs over the suit land. It is also the plead of the plaintiffs that the plaintiff No. 3, purchased the suit land from the plaintiff No. 1 & 2 by registered sale deed No. 1-00100 dated 07.02.2013 and became absolute owner of the suit land. It is also pleaded that the present defendant No. 1 being close associates of defendant No. 2 to 5 was aware of earlier proceeding recently with the assistance and at the instance of defendant No. 2 to 5 and group of persons and agents unlawfully entered into the suit land w.e.f. 15.06.2018 and gradually broke down four numbers of construction of plaintiff No. 3 and took away valuable belongings and goods of plaintiff No. 3 as specifically described in schedule 3 of the plaint and caused loss of Rs. 11,30,500/- and also made construction over the suit land as described in the second schedule of the plaint. The plaintiff also pleaded about the filing of violation cases and their consequence against the defendant No. 2 to 5 but details of the same is not necessary for this suit. The plaintiff also pleaded that a notice dated 05.07.2018 was issued by plaintiff upon the defendant No. 1 informing about the earlier proceedings for leaving the suit land and for removing construction by defendant No. 1 and also for payment of compensation of Rs. 11,30,500/- but defendant No. 1 failed to comply and rather sent one reply dated 17.07.2018 with false assertion. Hence, this suit. 11,30,500/- but defendant No. 1 failed to comply and rather sent one reply dated 17.07.2018 with false assertion. Hence, this suit. The plaintiffs also prayed for leave to file a separate execution case against the defendant No. 2 to 5 for violation of perpetual injunction and for filing of this suit by joinder of different cause of action. 3. The suit of the plaintiffs' is contested by defendant No. 1 by filing written statement denying all the plea and allegation of plaintiffs against him and inter alia pleaded that the suit is not maintainable and it was not known to him about any earlier suit and decree and only came to know about the same after receiving the Advocate Notice dated 05.07.2018. It is pleaded by the defendant No. 1 that he has been possessing the suit land adversely since 2006 and the execution of the sale deed by plaintiff No. 1 & 2 in favour of plaintiff No. 3 is merely a paper transaction as neither the vendor nor the purchaser have any kind of possession over the suit land since 2006 and the defendant No. 1 has been using and possessing the suit land by constructing dwelling hut over the suit land and has been living thereon with his family members peacefully and without any disturbance openly and continuously with the knowledge of locality including the owner, the plaintiffs and defendant No. 2 to 5 adversely along with right and title of the true owner and his right has been ripened over the suit land by adverse possession. It is also pleaded that the family members of defendant No. 1 i.e., the wife and children of defendant No. 1 were not made party in this suit even though they are also in possession of the suit land with him. Thus, the defendant No. 1 prayed for dismissal of the suit of the plaintiffs." 5. At the commencement of trial, following issues were framed: "(i) Whether the suit is maintainable? (ii) Whether plaintiff No. 3 has right, title and interest over the 1st schedule land of plaint? (iii) Whether the defendant No. 1 perfected title over the 1st schedule land of plaint by way of adverse possession? (iv) Whether the defendants illegally possessing the 1st schedule land since 15.06.2018 and damaged and taken away the subject mentioned in 3rd schedule of plaint? (iii) Whether the defendant No. 1 perfected title over the 1st schedule land of plaint by way of adverse possession? (iv) Whether the defendants illegally possessing the 1st schedule land since 15.06.2018 and damaged and taken away the subject mentioned in 3rd schedule of plaint? (v) Whether the plaintiffs are entitled to the decree as prayed for and/or any other relief or reliefs in this suit?" 6. The parties to the lis had adduced their respective evidences and introduced documents in respect of their evidences. After hearing arguments of learned counsel, the learned trial court had passed the following order: "In the result, the suit of the plaintiffs against the defendant No. 2 to 5 is dismissed being not maintainable and the suit of the plaintiff against the defendant No. 1 is decreed on contest with cost with a declaration that the plaintiff No. 3 has right, title and interest over the suit land as described in 1st schedule of the plaint by way of purchase and he is also entitled to recover possession of the suit land by evicting the defendant No. 1 and his men and agents by demolishing and removing all the obstruction and construction made by defendant No. 1 over the suit land including the 2nd schedule construction of the plaint. Accordingly, the defendant No. 1 is directed to vacate the suit land and hand over possession of the suit land to the plaintiff No. 3 by removing all obstruction and construction including second schedule construction of plaint within 30 days from today. The suit is disposed of on contest". 7. Main contention of Mr. Chakraborty, learned counsel for the defendant centers around that the plaintiff-respondent no. 3, Smt. Krishna Dey (here-in-after referred to as the "plaintiff") is the owner and possessor of the suit land measuring 0.10 acres, and her title and possession was confirmed in a former suit bearing no. T.S. 08 of 2012 [titled as Sri. Chanchal kr. Das & ors. vs. Sri. Ajoy kumar Das & ors.]. Per contra, learned counsel for the defendant has further argued that the defendant has been able to establish his title over the suit land by way of adverse possession extinguishing the right, title and interest of the plaintiff no. 3 over the suit land. 8. Chanchal kr. Das & ors. vs. Sri. Ajoy kumar Das & ors.]. Per contra, learned counsel for the defendant has further argued that the defendant has been able to establish his title over the suit land by way of adverse possession extinguishing the right, title and interest of the plaintiff no. 3 over the suit land. 8. On the basis of the aforesaid submissions, we have scrutinized the documents pertaining to various sale transactions which were made relating to the parties of the present suit as well as the judgment passed by the courts in the former suit. 9. We find that the defendant has alleged that he has been in possession of the suit land adversely against the plaintiffs w.e.f. the 1st part of 2006 with his family members by constructing huts thereon. 10. On the other hand, the plaintiffs have claimed that the cause of action of the suit had arisen w.e.f. 15.06.2018, and thereafter, from the dates of different demands raised by the plaintiffs including the demand notice dated 05.07.2018 issued upon the defendant whereupon he was asked to vacate the suit land within a period of 15 days and from the date of his reply dated 17.07.2018 when he denied the title of the plaintiffs. 11. From the evidences of PW-1 and PW-2, it is clearly established that the sale deed of the suit land vide I-100 dated 07.02.2013 was executed by the plaintiffs no. 1 and 2 in favour of the plaintiff no. 3. The said evidences of PW-1 and PW-2 are corroborated by PW-3, Sri. Mridul Kanti Das, the Deed writer, the scribe of the plaintiff who deposed that the plaintiffs no. 1 and 2 had executed the sale deed in favour of plaintiff no. 3 on 07.02.2013 on receipt of consideration money. On consideration of the evidence, in its entirety, according to us, the plaintiffs had been able to prove the Sale Deed dated 07.02.2013 whereby the plaintiffs no. 1 and 2 had transferred the suit land in favour of plaintiff no. 3. 12. 3 on 07.02.2013 on receipt of consideration money. On consideration of the evidence, in its entirety, according to us, the plaintiffs had been able to prove the Sale Deed dated 07.02.2013 whereby the plaintiffs no. 1 and 2 had transferred the suit land in favour of plaintiff no. 3. 12. The learned trial court has rightly interpreted the law laid down under Rule 15 of the Tripura Land Revenue and Land Reforms (Allotment) Rules, 1962 that if any transfer of allotted land by way of sale is made within 10 years of allotment, then, it would not be void ab initio, and merely liable to be cancelled and the Collector may re-enter into the land. A third person cannot substantiate his plea of possession on the ground that the transfer of land by such allottee was void ab initio. Moreso, on perusal of the judgment passed in Title Suit 08 of 2012 instituted by the plaintiffs of the present suit against Sri. Ajoy kumar Das and 3 others i.e. the defendant-respondent no. 4, 5, 6 and 7 of the present appeal, the learned trial court had observed thus:- "On scrutiny of all the documents exhibited by the plaintiffs it is crystal clear that the oral evidence adduced on behalf of the plaintiffs' side is supported and corroborated by the documentary evidence on record. On perusal of certified copy of computerized copy of khatian no. 992 (Esbt. 2) I find that the suit land measuring 0.10 acres corresponding to hal dag no. 3507 is recorded in the name of the plaintiff Chanchal kr. Das and his brother Chandan kr. Das as allottee. Moreover on perusal of Exbt. 5 I find that the plaintiff No. 1 Chanchal Kr. Das had sworn an affidavit before the Notary Public, North Tripura, Kailasahar attesting to the fact that his brother Chandan Kr. Das had died on 03.08.2001 and he and his mother Sukriti Das are his legal heirs. Moreover, on perusal of Exbt. 9 series which is the certified copy of judgment passed by Learned Civil Judge (Sr. Division) Kailasahar in TS 08/11 it is clear that the plaintiffs Chanchal Kr. Das and Smt. Sukriti Das through their attorney Alok Dey had filed a suit for declaration and recovery of possession against defendant no. 1 Ajoy Kr. Moreover, on perusal of Exbt. 9 series which is the certified copy of judgment passed by Learned Civil Judge (Sr. Division) Kailasahar in TS 08/11 it is clear that the plaintiffs Chanchal Kr. Das and Smt. Sukriti Das through their attorney Alok Dey had filed a suit for declaration and recovery of possession against defendant no. 1 Ajoy Kr. Das and present plaintiff No. 3 Smt. Krishna Dey relating to the present suit land and that suit was decreed in favour of the plaintiffs vide judgment dated 02.12.2011 in the following words: "In view of the above detail discussion and findings of this court under the above issues, the present suit of the plaintiffs is hereby decreed on contest without costs. The right, title and interest of the plaintiffs over the suit property are hereby declared. The plaintiffs do recover the suit land from the defendants by evicting them therefrom. The plaintiffs are also entitled to get or realize and recover a compensation or mesne profit of the suit property at Rs. 1,000/- (Rupees one thousand) per month from the month of January, 2005 and till the recovery of the suit property from the defendant no. 1. Parties are to bear their own costs of the suit. Decree sheet be prepared accordingly in time. File be consigned to records" Moreover, on perusal of Exbt. 13 series which is the certified copy of judgment dated 30.03.2015 passed by the learned Civil Judge (Sr. Division), Kailasahar in Title Suit 09 of 2014 it is crystal clear that the present defendant No. 1 Ajoy Kr. Das had filed the suit against the present plaintiffs with a view to set aside the judgment and decree passed by the court of Learned Civil Judge (Sr. Division), Kailasahar in TS 08/2011 but the said suit was dismissed by the learned court vide judgment dated 30.03.2015. What emerges from the above discussion is that from both the judgments of the Court of Learned Civil Judge (Sr. Divn.) Kailasahar discussed above it is clear that the plaintiffs Chanchal Kr. Das and Sukriti Das are entitled to maintain their possession over the suit land as such possession has been judicially recognized and endorsed by the said judgments which have by now attained finality with the efflux of time. Moreover on perusal of Exgt. Divn.) Kailasahar discussed above it is clear that the plaintiffs Chanchal Kr. Das and Sukriti Das are entitled to maintain their possession over the suit land as such possession has been judicially recognized and endorsed by the said judgments which have by now attained finality with the efflux of time. Moreover on perusal of Exgt. 12 i.e. original registered kabala No. 1-100 dated 07.02.2013 it is clear that the plaintiff No. 1 Chanchal Kr. Das had inducted the plaintiff No. 3 Krishna Dey into the suit property as tenant as per the terms and conditions set out in the registered kabala. The sub & substance of the above discussion is that the oral evidence of PW-3 to the effect that she is in possession of the suit property as tenant of the plaintiff Nos. 1 & 2 is supported by the documentary evidence on record discussed above. A conjoint reading of the oral and documentary evidence on record discussed above leads this Court to the unhesitating conclusion that the plaintiffs are entitled to declaration that they have right to maintain their possession over the suit property described in schedule to the plaint. Moreover it is significant to note that the defendants have failed to contest the suit and rebut the claims of the plaintiffs in spite of proper service of summons which creates a negative inference against them to the effect that the case set up by the plaintiffs is true". 13. From the aforesaid judgment passed in Title Suit 08 of 2012, what has been transpired that had the defendant of the present suit been in possession of the suit since 2006, then, there was no reason for the plaintiffs not to implead him as one of the defendants alongwith others in the said suit. The dispute espoused in Title Suit 08 of 2012 clearly demonstrates that the litigations were going on between the parties relating to the suit land and the defendant, Ajoy kumar Das (the defendant-respondent no. 4 of the present appeal) of T.S. 08 of 2011 never stated that the defendant was in possession of the suit land. The said fact leads us to believe the facts, as stated by the plaintiffs in the present suit that the defendant is a mere trespasser and he had entered into the suit land only in the year 2018. 4 of the present appeal) of T.S. 08 of 2011 never stated that the defendant was in possession of the suit land. The said fact leads us to believe the facts, as stated by the plaintiffs in the present suit that the defendant is a mere trespasser and he had entered into the suit land only in the year 2018. According to us, the defendant had entered into the suit land in the year 2018 only to frustrate the decree passed in Title Suit 8 of 2012 passed by the learned Civil Judge, Junior Division, Kailasahar, Unakoti District, and he is a mere trespasser. 14. More importantly, after perusal of the evidences on record, we are convinced that the defendant has failed to prove his hostile possession against the plaintiffs. Thus, the plaintiff no. 3 is entitled to a decree declaring his right, title and interest over the suit land and recovery of possession, as ordered by the learned trial court. As a corollary, the judgment and decree passed by the learned trial court granting reliefs to the plaintiff no. 3 is hereby affirmed and upheld. Moreover, there is a well known maxim that "possession follows title". A person claiming adverse possession has to first prove that by efflux of time, the title of the owner has been extinguished entitling him to claim acquisition of title by way of adverse possession and in that case, all the elements of adverse possession have to be proved by cogent evidence, which is absent in the present suit. 15. In view of the aforesaid discussion, we do not find any merit in the present appeal. Accordingly, the instant first appeal stands dismissed. Send down the LCRs. for enforcement of the decree.