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2022 DIGILAW 50 (TRI)

Swapna Marak v. Apu Chandra Dey

2022-02-03

ARINDAM LODH

body2022
JUDGMENT 1. It appears that at the time of admission of the instant appeal, substantial question of law has not been formulated. As such, as proposed by the learned counsel appearing for the parties, the following substantial question of law has been formulated: 'Whether non-appreciation of the evidences surfaced on record that the plaintiff based on entry in the Khatian no. 15007 as permissive possessor of the defendant filed a proceeding under Section 95 vide 141/2008 of the TLR & LR Act for correction of the wrong entry, admitting that there is no permissive possessor, and he is possessing the suit land without any difficulty, and instantly filed the suit being T.S. 65 of 2011 for recovery of possession on the basis of wrong entry as the defendant is permissive possessor so evictable, attracts estoppels for the plaintiffs, thus, judgment of the appellate court is perverse?' 2. Heard Mr. GS Bhattacharjee, learned counsel appearing for the appellant as well as Mr. A. De, learned counsel appearing for the respondents. 3. This is a second appeal preferred by the defendant-appellant against the judgment and decree dated 19.03.2019 passed by the learned Additional District Judge, Court no. 2, West Tripura, Agartala in case No. Title Appeal 11 of 2013 whereby and whereunder the judgment and decree dated 05.01.2013 passed by the learned Civil Judge, Junior Division, Court no.1, Agartala, West Tripura in case no. Title Suit 65 of 2011 had been affirmed. 4. Briefly stated, the plaintiffs, the respondents herein, had instituted a suit for declaration of right, title, interest and recovery of possession of the suit land against the defendant, the appellant herein, alleging that though they are the owners of the suit land, but, the defendant had been possessing the suit land and in the Record of Right (khatian) the name of defendant has been shown as permissive possessor over 'B' schedule land, which is the part of schedule 'A' land mentioned in the plaint. The order passed by the learned trial court may be reproduced here-in-below:- 'In the result, the suit of the plaintiffs is decreed on contest with cost with a declaration that the plaintiffs have right, title and interest over the suit land described in schedule-A of the plaint except the land of Hal Dag no. The order passed by the learned trial court may be reproduced here-in-below:- 'In the result, the suit of the plaintiffs is decreed on contest with cost with a declaration that the plaintiffs have right, title and interest over the suit land described in schedule-A of the plaint except the land of Hal Dag no. 1287, 1289 and 1293 and the plaintiffs are also entitled to get recovery of possession of the suit land described in schedule-B of the plaint by evicting the defendant and by removing all obstruction therefrom on condition that the plaintiffs have to pay the deficient court fees of Rs. 750/- before the executing court to make the judgment and decree enforceable in law. Accordingly, irrespective of payment of court fees by the plaintiffs, the defendant is directed to handover the vacant possession of the suit land described in schedule-B of the plaint to the plaintiffs within 60 (sixty) days from today. The suit is disposed of on contest with cost. Make necessary entry in the relevant Trial Register.' 5. Against the said decree, the defendant has preferred first appeal before the learned District Judge, West Tripura, Agartala. The matter was transferred to the court of learned Additional District Judge, Court no.2, West Tripura, Agartala. Having heard the learned counsel appearing for the parties and after perusal of the evidences and materials on record, the learned Additional District Judge dismissed the appeal with certain observations. Being aggrieved, the defendant has preferred the instant second appeal. 6. Mr. GS Bhattacharjee, learned counsel for the defendant-appellant has confined his submission within the substantial question of law as formulated here-in-above. One very significant submission has been made by the learned counsel for the defendant-appellant is that the defendant-appellant has not been possessing the suit land. This court has put a question to him, if that be so, how the appellant will be affected by the decree. However, without making any comment over this issue, I have perused the records. It is surfaced that the plaintiffs in favour of their claim over their ownership over the suit land produced Record of Right (khatian) which was initially recorded in the name of their father, late Anil chandra Dey. From this khatian, it is found that the name of Anil chandra Dey has been shown as 'Rayot'. It is surfaced that the plaintiffs in favour of their claim over their ownership over the suit land produced Record of Right (khatian) which was initially recorded in the name of their father, late Anil chandra Dey. From this khatian, it is found that the name of Anil chandra Dey has been shown as 'Rayot'. After the death of Anil chandra Dey, the plaintiffs have become owner of the suit land by way of inheritance. They found that in the khatian the name of the defendant has been recorded as permissive possession (at column no. 24). 7. The plaintiffs filed an application for correction of Record of Right to the District Magistrate & Collector, West Tripura, Agartala, under Section 95 of the TLR & LR Act, alleging that the defendant was not in possession of the land (Exbt. 2, the petition which was filed before the DM & Collector). The petition was entered in the register of DM & Collector, as Revenue case No. 141 of 2008. As submitted by the learned counsel appearing on behalf of the appellant, the Revenue court did not pass any order and the proceeding was dropped for the reason that the plaintiffs had instituted the present suit before the learned court of Civil Judge, Junior Division, West Tripura, Agartala. 8. After receipt of summon, the defendant appeared and contested the suit by way of filing written statement. On the basis of pleadings, issues were framed. On the basis of issues, both the parties had adduced their respective evidences and introduced some documents in favour of them. Thereafter, arguments were heard as advanced by learned counsel appearing for the parties to the lis. Having heard, learned trial court decreed the suit in favour of the plaintiffs, as stated here-in-above. The appellate court after hearing the learned counsel for the parties, had affirmed and upheld the judgment and decree passed by the learned trial court. 9. Before this court, Mr. Bhattacharjee, learned counsel has submitted that when the plaintiffs have stated in the petition they filed before the revenue court that the defendant was not in possession of the suit land, then, how the present suit for recovery of possession is maintainable. 10. I have found that the revenue court did not pass any order. 9. Before this court, Mr. Bhattacharjee, learned counsel has submitted that when the plaintiffs have stated in the petition they filed before the revenue court that the defendant was not in possession of the suit land, then, how the present suit for recovery of possession is maintainable. 10. I have found that the revenue court did not pass any order. The proceeding was ended with the order that since the plaintiffs had instituted a suit before the learned trial court, it would not be appropriate for the revenue court to pass any order in the said proceeding. Hence, my simple answer is, this statement has no force in the eye of law when the plaintiffs had filed a separate suit before the civil court for final adjudication of the matter. It is settled proposition of law that the findings of learned civil court is binding upon the revenue court. 11. Now, coming back to the present appeal, and the substantial question of law, as formulated by this court, I find that both the courts below held that khatian has a presumptive value which can be rebutted by way of adducing evidence. From the khatian it transpires that the name of the father of the plaintiffs was recorded as 'Rayot' and the name of the defendant has been shown as permissive possessor in column no. 24 of the said khatian. 'Rayot' means a person who owns the land, but, it is made clear that this is only a presumption of ownership, which can be rebutted by way of adducing better evidence. In the instant case, it is found that the defendant could not dispute this presumption of ownership which lies in favour of the plaintiffs by way of adducing evidences. Hence, the Record of Right i.e. the khatian prepared by the revenue department after thorough survey cannot be denied in absence of any rebuttal evidence. Moreso, I have kept in mind the submission of learned counsel appearing for the appellant that she is not in possession of the suit land. In view of this, in my opinion, if the defendant is not in possession of the suit land, then, how he has been affected by the decree. 12. In view of the above discussion, in my considered view, the decree can be executed. In view of this, in my opinion, if the defendant is not in possession of the suit land, then, how he has been affected by the decree. 12. In view of the above discussion, in my considered view, the decree can be executed. Accordingly, the substantial question of law, as formulated, that appreciation of evidence as surfaced during the proceeding and the findings of the learned courts below regarding evidentiary value of the khatian is correct is accordingly answered. 13. In the light of above discussion, the present second appeal is devoid of any merit, and thus, dismissed. Pending application(s), if any, also stands disposed. Send down the LCRs.