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2022 DIGILAW 35 (TRI)

Archana Rani Deb v. Kamaljit Singh

2022-01-24

T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. K. Datta, learned counsel appearing for the appellant as well as Mr. D. R. Chowdhury, learned senior counsel assisted by Mr. S. Sarkar, learned counsel for the respondents. 2. This is an appeal under Section 100 of the Civil Procedure code against the judgment dated 06-06-2016 and decree passed by Additional District Judge, Court No.5, West Tripura, Agartala in Title Appeal 04 of 2014 arising out of Judgment and decree dated 26.09.2013 passed by Civil Judge, Sr. Division, Court No1, West Tripura, Agartala in case no. TS 125 of 2011. 3. At the outset, the controversy that led to filing of the suit may briefly be introduced. The plaintiff Appellant as Plaintiff instituted the Title Suit No. TS.125 of 2011 in the Court of Ld. Civil Judge, Sr. Division, Court No.1, West Tripura, Agartala against the Defendant - Respondents for confirmation of right title and recovery of possession by evicting the defendants therefrom. 4. In a nutshell the plaintiff's case is that, she purchased two gandas of land from one Shyamal Sengupta on 05.07.2005 by a registered sale deed. Her said purchased land was also mutated in her name. In the month of November 2006 the defendants encroached some portion of purchased land of the Plaintiff. The Plaintiff raised protest, but the defendants forcibly took into their possession of land measuring 0.015 acres which is a part and parcel of the land measuring two gandas. The total land of the plaintiff is described in Schedule A while encroached land measuring 0.15 acres is shown in B, C and D schedule of the plaint by the plaintiff. On the request of plaintiff the local people intervened into the matter, but the defendants asserted that the said land belong to them. Thereafter, the plaintiff as per advise of the neighbouring people approached the Appropriate Authority fordemarcating her purchased land within the knowledge of Shyamal Sengupta from whom the plaintiff purchased the land. In pursuance of the prayer for demarcation, the land of the plaintiff was surveyed on 11.08.2006 in pursuance of the instruction the DCM, Sadar in presence of the owners of the adjacent R.S. Plot Nos. 2295, 2296, 2297 and 2298 and during spot survey it was revealed that the plaintiff was physically possessing land measuring 0.025 acres instead of 0.040 acres. 2295, 2296, 2297 and 2298 and during spot survey it was revealed that the plaintiff was physically possessing land measuring 0.025 acres instead of 0.040 acres. Thereafter, the Survey team measured the adjacent plots and found the owners of R.S. Plot No.2295 and 2296 are possessing the land measuring 0.015 acres of the plaintiff. The aforesaid plots belong to the defendants. The defendant No. 1 and 2 are possessing 0.005 acres of access land. Similarly the defendants No3 and 4 who are owners of Plot No. 297 are possessing 0.059 acres of land instead of the recorded land in excess of 0.05 acres, so the defendants are also possessing 0.015 acres of access land. 5. The appellant filed the suit in the trial court for recovering of possession of the following schedules. Schedule-A Within District- West Tripura, Sub-Division, Sadar, Pargana, Agartala, Sub-Registry- Sadar P.S. - East Agartala, Tehsil - Indranagar, Mouja - Kunjaban, land measuring 0.04 acres, recorded under Khatian No. 2274, C.S. Plot No. 1340 - 3850 and C.s. Plot No. 2317. Being butted and bounded by:- North- At present Chameli Singh and Kamaljit Singh; South - At present Quarter; East - At present Kaizar Debbarma; West - At present Kamljit Singha, Smt. Chameli Singha, Sri Jyotirmoy Paul, Champa Paul & Samir Kanti Datta; Within this boundary land measuring 0.04 acres i.e. 2 (two) gandas, Viti Class of land. Schedule -B Land measuring .005 acres and recorded under Plot No. 2295 and 2296, butted and bounded by:- North- Presently Kamaljit Singha & Chameli Singha; South - Jyotirmoy Paul; East - Plaintiff; West - Kamaljit Singha & Chameli Singha. Schedule -C Land measuring 0.009 acres and recorded under Plot no. 2297, butted and bounded by North - Kamljit sngha & Chalmeli Singha South - Samir Kanti Datta, East - Plaintiff West- Jyotirmoy Paul and Champa Paul. Schedule -D Land measuring 0.001 acres, recorded under Plot No.2298, butted and bounded by- North - Jyotirmoy Paul and Champa Paul; South - Quarter; East - Plaintiff; West - Samir Kanti Datta. The above mentioned 3 (three) Plots are possessing a total quantum of land measuring 0.015 acres in excess of their recorded land. 6. The defendants filed the written statement. The above mentioned 3 (three) Plots are possessing a total quantum of land measuring 0.015 acres in excess of their recorded land. 6. The defendants filed the written statement. In the written statement filed by the defendants No.1 and 2, it has been categorically stated that the defendant No.2 purchased land measuring 2 1/2 gandas from one Swarup Dasgupta by a registered sale deed No. 1-9510 dated 6-11-2001 and said land was sold by her to the defendant No. 1 by a registered sale deed No. 1-8972 dated 9.10.2002 within the R.S. Plot No. 2296 as shown in the sketch map and the aforesaid land was mutated in the name of the defendant No. 1 and 2 jointly purchased land measuring 0.06 acre from one Shri Manindra Chandra Saha by a registered sale deed No, 1-1037 dated 3.12.2003 and got delivery of possession thereof from their vendor immediately after purchase and the said land was mutated in the name of the defendants No. 1 and 2 in Khatian NO. 1581 of Mouja Kunjaaban within the R.S. Plot No. 2295 with an area of 0.06 acre and the said purchased land is shown in plot No. 2295 in the sketch map. 7. The defendants No. 1 and 2 also narrated in their written statement that the land of the defendants NO. 1 and 2 in R.S. Plot NO. 3422 is situated adjacent north of the land of the plaintiff and other lands of the defendants No. 1 and 2 in RS Plot No. 2295 and 2296 have no connection with the land of the plaintiff and the land under RS Plot No. 3422 is the entrance of the dwelling house of the defendants No. 1 and 2 from the nearby road and as such the plaintiff claims a portion of the land of R.S. Plot No. 3422 belonging to the defendants No. 1 and 2 as part of her purchased land. 8. On the basis of the rival pleadings, the Civil Judge (Sr. 8. On the basis of the rival pleadings, the Civil Judge (Sr. Div), Court No.1, West Tripura Agartala hereinafter referred to as the trial judge, framed the following issues: A. Whether the suit is maintainable in its present form and nature; B. Whether the plaintiff is entitled to get a decree of confirmation of her share over the suit land; C. Whether the Plaintiff is entitled to get recovery of possession of the suit land by way of evicting the defendants therefrom; D. Whether the parties are entitled to get any relief/reliefs. 9. The trial judge while deciding the issue No. B & C has observed that on the face of the above documents specially documents of the plaintiff are indicating that she purchased two gandas of land duly from Shymal Sengupta with her specific boundary. The demarcation report also indicating that land measuring 0.015 acres are under the possession of the defendants. As I discussed above, the evidence of defendants as well their documents, in no way are supporting their claim and thereby I arrived at decision that the plaintiff is entitled to get a decree of her confirmation of right, title and interest over the suit land and she is also entitled to get recovery of possession of the suit land by way of evicting the defendants therefrom. These two issues are answered accordingly. 10. While deciding the issue No. A the trial judge has observed that it is clear to the court that the matter of possession of land is not clear, so the question is related with the title of the land. In this regard the party concern may approach the Appropriate Court for determination of the title over the suit land. Hence the proceeding is hereby dropped. 11. The trial judge after having examined all the records so placed in the plaint and also after examining the written statement filed by the defendants No. 1 and 2 and the PWs in support of the claim, has observed that the plaintiff is entitled to get a decree of her right title and interest over the suit land. The plaintiff is also entitled to get recovery of possession of the suit land as per schedule of the plaint by evicting the defendants from the suit land. The plaintiff is also entitled to get recovery of possession of the suit land as per schedule of the plaint by evicting the defendants from the suit land. The defendants are accordingly directed to vacate the handover the possession of the suit land to the plaintiff by removing their construction thereon, if any, within a period of two months. The plaintiff is also entitled to get the cost of the suit. 12. Being aggrieved and dissatisfied with the judgment and decree passed in the original suit, the defendants No.3 and 4 as appellants preferred an appeal being case No. Title Appeal No.4 of 2014 in the court of the Additional District Judge, (Court No.5), West Tripura, Agartala. The said court while deciding the matter has observed by the judgment dated 06.06.2016 that the plaintiff therein failed to prove that the suit land under Schedule B, C, and D are the part and parcel of A schedule land of the plaintiff. The plaintiff has also failed to prove that the defendants encroached a part of the A schedule land in the western side in the month of November, 2006 or any subsequent date or previously on any date before purchasing of the said land. So, the findings of the learned trial court declaring the right, title and interest of the plaintiff over the suit land under Schedule B, C and D and recovery of possession of the same cannot stand. Accordingly, the impugned judgment and decree passed by the learned trial court are liable to be set aside. 13. It has been found by the first appellate court that the plaintiff was not put in physical possession of the entire purchased land of 0.04 acre by her vendor Shyamal Sengupta after selling of the said land and the said fact is also evident from the pleadings of the plaintiff at Paragrapah-6 of the plaint which is as follows:- '........Plaintiff also brought Shyamal Sengupta into picture, from whom, the plaintiff purchased the land, measuring 0.04 acre and Shyamal Sengupta, after visiting the said land and after having talks with the plaintiffs and others, asserted that, he had clear title of the land measuring 0.04 acre and having his title, he transferred the land to the Plaintiff and the Defendants cannot make any claim on the said land. Thereafter, it had been decided that, Shyamal Sengupta would make an application before the appropriate authority for demarcation of the land measuring 0.040 acre, described in the Schedule A. Accordingly, Shyamal Sengupta, vide an application dated 01.12.2006, made prayer for demarcation of land measuring 0.04 acre described in Schedule A.' 14. The first appellate court while appreciating the above pleadings of the plaintiff clearly indicate that Shyamal Sengupta did not handover the possession of 0.04 acre of land within the boundary given in the sale deed otherwise he did not apply for demarcation of land long after the execution of sale deed by him in favour of the plaintiff. The plaintiff did not examine Sri Shyamal Sengupta as witness to prove that he delivered the physical possession of 0.04 acre of land as per recital in the sale deed. 15. Being aggrieved by the said judgment and decree of the first appellate court dated 06.06.2016, the appellant has preferred this instant appeal under Section 100 of the CPC. At the time of admitting this appeal, the following substantial questions of law were framed by this court by the order dated 05.03.2019. 'Whether the findings of the first appellate court are perverse?' The appellant was given further liberty to raise any other substantial question of law at the time of hearing. It is to be noted that no such endeavour was made rather Mr. K. Datta, learned counsel appearing for the appellant has stated that the main ground in this appeal is whether principle of res judicata would operate and alternatively whether the suit is barred by limitation or not. 16. The lower appellate court has travelled beyond the scope of its appeal and set aside the decree in its entirety and allowed the appeal under law and the same is not permissible. The appellant before the lower appellate court is the defendant No. 3 and 4 i.e. Jyotirmoy Paul and Champa Paul respectively and at the stage of execution proceedings, the matter has been compromised between the appellant as well as the plaintiff in respect of 'C' Schedule Property (as per the plaint). 17. In view of the said compromise, the appellant herein seeks to get the appeal allowed since the matter has been settled between the appellant before the lower appellate court and the present appellant of this plaint. In view of the same, the appeal is accordingly allowed. 17. In view of the said compromise, the appellant herein seeks to get the appeal allowed since the matter has been settled between the appellant before the lower appellate court and the present appellant of this plaint. In view of the same, the appeal is accordingly allowed. 18. Mr. D. C. Saha, learned counsel who appears for the defendant No 1 and 2 in the suit and respondent No. 1 and 2 in the present appeal Kamaljit Singh and Chameli Singh submitting on the strength of Order 41 of Rule 4 and 33 of the CPC submits before this court that once it is a common judgment, even if all parties of the suit have not challenged, the benefit has to be extended to all the parties and in order to support his contention he relied on a judgment passed by Punjab-Haryana High Court in Brij Mohan Lal Murli Dhar v. Raj Kishore and Anr (judgment dated 06.03.1959). With due respect, this court has no hesitation to say that the said judgment has no relevance to the facts of the instant case. The subject matter in the judgment is a dispute between the land lord and the tenants in respect of subject property where the father passed away and his legal heirs sons contested the matter in respect of rented property. But in the present case, there are Schedule A, B, C and D properties and the suit has been decreed in favour of all schedules. Schedule B property is confined to defendant No.1 and 2 and Schedule C is confined to the appellants before the lower appellate courts i.e. defendants No 3 and 4. 19. It is pertinent to note the defendant No. 1 and 2 Kamaljit Singh and Chameli Singh respectively have accepted the decree and the same has not been challenged and accordingly in so far as Schedule B is concerned, it has become final. Appeal suit has been preferred by defendant No. 3 and 4 and the same has been allowed by setting aside the entire decree. When the appellant has right, title and interest only in respect of the Schedule C property, the lower appellate court cannot travel beyond the scope of the appeal and set aside the decree in so far as Schedule A, B, and D is concerned. When the appellant has right, title and interest only in respect of the Schedule C property, the lower appellate court cannot travel beyond the scope of the appeal and set aside the decree in so far as Schedule A, B, and D is concerned. In view of the above observation, the order passed by the lower appellate court is set aside and the appeal is accordingly allowed as per the observation indicated above.