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2022 DIGILAW 56 (TRI)

Radha Ranjan Paul v. Champa Dar

2022-02-08

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. S. Lodh, learned counsel appearing for the plaintiff-appellants. Also heard Mr. S. Bhattacharjee, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the CPC against the reversal finding returned by the judgment dated 09.02.2018, delivered in Title Appeal No. 19 of 2012 by the learned District Judge, North Tripura, Dharmanagar. The judgment and decree dated 25.06.2012 & 02.07.2012 delivered in the Title Suit No. 04 of 2006 by the learned Civil Judge, Jr. Division, Dharmanagar, North Tripura, has been reversed and the suit has been decreed. On questioning the legality of the said judgment dated 09.02.2018, delivered in Title Appeal No. 19 of 2012, this appeal has been preferred by the appellants. At the time of admitting the appeal, the following substantial questions of law were formulated by this Court: '(i) Whether the finding of the First Appellate Court is perverse for misappropriation of evidence in regard to the title of the plaintiff? (ii) Any other substantial question of law shall be decided at the time of hearing. 3. The brief history of the case filed by the plaintiff, the appellants herein are in short, is that the plaintiffs are the lawful owners of land measuring 0.20 acres as mentioned in schedule 'A' of the plaint. The plaintiffs have purchased the aforesaid quantum of land by dint of a registered deed bearing registration No. 1-2429, dated 20.05.1985 from one Bipin Chandra Das of Ramnagar in lieu of consideration money and according to plaintiffs, since the date of purchase he inducted into possession of the said quantum of land. Later on, the said quantum of land was recorded in the name of the plaintiffs in khatian No. 704 under Mouja and T.K. Ramnagar vide M.R. Case No. 63/03 and plot No. 399/2222 was surveyed in the name of the plaintiffs in the aforesaid khatian. The respondent Nos. 1 to 8 without having any right, title and interest, on 19.06.2005 in the morning illegally entered into the suit land as mentioned in schedule 'B' of the plaint and forcefully raised one construction as mentioned in schedule 'C' of the plaint inspite of objection of plaintiffs. Thereafter, dispossessed the plaintiffs from the suit land as mentioned in schedule 'D' of the plaint by demolishing bamboo fencing and damaged valuable trees. Thereafter, dispossessed the plaintiffs from the suit land as mentioned in schedule 'D' of the plaint by demolishing bamboo fencing and damaged valuable trees. The matter was reported to O/C Panisagar P.D. but, no action was taken. Thereafter, the plaintiffs applied for demarcation of the suit land as mentioned in schedule 'A' and accordingly, as per order of Ld. S. D. M., Dharmanagar, the Tehsildar of Ramnagar Tehsil demarcated the land of the plaintiffs in presence of the parties wherein, it was found that the respondents have forcefully occupied land measuring 3 decimals (described in schedule 'B') and the respondent No. 9 has forcefully occupied land measuring 4 decimals (described in schedule 'B' of the plaint). Having no other alternative, the plaintiffs have filed the suit for granting a decree of declaration of right, title, interest and for recovery of khas possession in respect of the suit land as mentioned in schedule 'B' and 'D' of the plaint by way of demolishing of construction illegally raised by the respondents as mentioned in schedule 'C' of the plaint. After hearing the parties, vide judgment & decree dated 09.02.2018, the learned Appellate Court allowed the appeal and dismissed the suit observing as under: 'In view of the discussion made hereinabove, I find that the respondents-plaintiffs could not able to prove their right, title and interest over the suit land by adducing cogent evidence. Hence, I find Ld. Trial court has committed an error in decreeing the suit in favour of the respondent-plaintiffs which needs interference of this court and the same needs to be set aside. In the result, the appeal is allowed. The judgment and decree dated 25.06.2012 and 02.07.2012 respectively passed by Ld. Civil Judge (junior Division), Dharmanagar, North Tripura in Title Suit No. 04 of 2006 whereby and whereunder Ld. Trial court has decreed the suit on contest is hereby set aside' 4. Being aggrieved by the impugned judgment & decree dated 09.02.2018 passed by the learned District Judge, North Tripura, Dharmanagar, in Title Appeal No. 19 of 2012, the present second appeal has been preferred by the appellants. 5. Mr. S. Lodh, learned counsel appearing for the appellants has submitted that the impugned judgment & decree of the learned Appellate Court below is bad, on account of misreading and non-reading of the pleadings, evidences on record and the law. 5. Mr. S. Lodh, learned counsel appearing for the appellants has submitted that the impugned judgment & decree of the learned Appellate Court below is bad, on account of misreading and non-reading of the pleadings, evidences on record and the law. Hence, the impugned judgment and decree is liable to be set aside. He has further submitted that the learned Appellate Court has committed serious error in holding that the appellants failed to prove their title over the suit land. The learned First Appellate Court did not consider the pleadings of the respondents, where they admitted that the suit land is a purchased land of the appellant No. 1 & the predecessor-in-interest of the appellant Nos. 1(a) to 1(c). Thus, the impugned judgment and decree is liable to be interfered with. 6. Mr. Lodh, learned counsel has further argued on the point that the learned Appellate Court below committed serious error in arriving to a conclusion to the effect that the appellants failed to prove that their purchased land was actually owned and possessed by Bipin Chandra Das. It is most humbly submitted that the respondent in paragraph 12 of their written statement (Annexure-2), categorically admitted that the plaintiffs purchased the suit land and at no point of time the respondents challenged the title of erstwhile owner, Bipin Chandra Das and hence, this finding of the learned First Appellate Court is beyond pleadings and not tenable in law. Thus, the impugned judgment and decree is bad in law and liable to be set aside. 7. Mr. Lodh, learned counsel has further submitted that the learned First Appellate Court committed serious error in deciding the title appeal. It is most humbly submitted that in the written statement, the respondents admitted the title of the appellants over the suit land and they asserted that they are adversely possessing the suit land but, they did not plead from which date and how, they are possessing the same and also failed to prove their adverse possession over the suit land. The learned First Appellate Court also rejected the plea of adverse possession of the respondents. Hence, the learned First Appellate Court ought not to interfere with the findings of the learned Trial Court. Thus, the impugned judgment and decree is liable to be interfered with. 8. The learned First Appellate Court also rejected the plea of adverse possession of the respondents. Hence, the learned First Appellate Court ought not to interfere with the findings of the learned Trial Court. Thus, the impugned judgment and decree is liable to be interfered with. 8. Further, it has been stated that the learned Appellate Court did not consider the depositions of the parties to the suit and committed serious material irregularities in passing the impugned judgment and decree. As such, the impugned judgment and decree cannot be couched under any provisions of law and hence, it is liable to be set aside. 9. In view of the above submissions, let us examine the evidence on record which is very important for determining the case in hand. Here, the defendant Nos. 1 to 8 have contested the suit by filing one written statement denying the assertions of the plaintiffs in the plaint. Rather, the said answering defendants took the plea that the defendant No. 6 has been possessing the suit land as mentioned in schedule B since from the year 1992 by constructing his dwelling house adversely within the knowledge of the plaintiffs and the world at large and prior to that one Danka Singh was possessor of the said land measuring 3 decimals and on and from first January, 1992 the defendant No. 6 took possession of the case within the knowledge of the plaintiffs and said Danka Singh and according to answering defendants, the plaintiffs in collusion with settlement staff had managed to obtain record of rights in his favour after elapsing of long period for which the answering defendant No. 6 has prayed before the learned Collector, North Tripura for recording his name as adverse possessor in the respective column of the khatian and by the written statement thus, the defendants prayed for dismissal of the suit with costs. 10. The contesting defendant No. 9 has filed the W.S. by filing one written statement. 10. The contesting defendant No. 9 has filed the W.S. by filing one written statement. In the written statement the contesting defendant took the plea that she purchased the suit land as mentioned in schedule D by the strength of a registered deed bearing No. 1-1899, dated 19.07.2005 from Bipin Chandra Das and the plaintiffs never possessed the land and in the W.S. the answering defendant further took the plea that she has acquired the right of adverse possession against the plaintiffs and also against the world at large. So, the answering defendant by her W.S. prayed for dismissal of the suit with costs. 11. To prove the case of the appellants, the appellants have examined 5 witnesses and also have exhibited 8 documents. On the contrary, on behalf of defendant Nos. 1 to 8, the defendant has adduced 4 witnesses and on behalf of defendant Nos. 9 and 6, witnesses were examined and also have exhibited 4 documents. Findings & Reasonings: 12. According to the plaintiffs, the appellants herein, they purchased the suit land on the strength of a registered deed bearing No. 1-2429 dated 20.05.1985. The suit property situated within the jurisdiction of the Court and the plaintiffs also filed the requisite Court fees. The defendants also filed written statement and also adduced documentary evidences in their support but, failed to show any legal provision regarding the non-maintainability of the suit. There is no contrary evidence on record from the side of the contesting defendants regarding territorial and pecuniary jurisdiction of this suit. As such, considering the facts and circumstances and also on perusing the case record appears that the instant suit is filed by the plaintiff is maintainable in its present form. 13. Article-65 of the Limitation Act deals with suits based on title is limited to cases for receive of possession of immovable property or any interest therein based on Title. The Article applied to all suits for possession of immovable property based on the title with the result that even if the possession of the defendant was not permissible in origin, he will have to prove adverse possession for over 12 years to deny the plaintiffs' right to the property. 14. Adverse possession implies the possession by a person holding the land on his own behalf of some other person and setting up his claim as the true owner of the land. 14. Adverse possession implies the possession by a person holding the land on his own behalf of some other person and setting up his claim as the true owner of the land. If adverse possession is continues, peaceful, undisturbed and open for more than 12 years then the title of the true owner is extinguished and the person in possession becomes the true owner. Adverse possession must begin with the wrongful possession of the true owner at some point of time and continued for a period of 12 years or more. It must be actual, hostile, open, continuous, notorious, exclusive and must be maintained for the statutory period i.e. 12 years. The essential requirements for adverse possession are (a) the possession must be adequate in continuity, (b) in publicity and (c) possession must be to the extent to show that it is possession adverse to the competitor (nec vi nec clam nec precario). Both animus and corpus is necessary to constitute adverse possession. 15. In adverse possession, possession commencing in wrong and being continued as against right. It is actual hostile possession as against right owner by express or implied denial of title. Under Article-65 of Limitation Act burden is on the defendants to prove affirmatively that he is in adverse possession. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. A person who claims title to a property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. The mere fact that he was in uninterrupted possession for several years and in that way he acquired absolute right and title, is not enough to raise plea of adverse possession. 16. In the instant case, the respondent has pleaded that the respondent No. 6 has acquired right of adverse possession over the suit land as described in schedule B of the plaint and his family has been occupying the suit land on and from 01.01.1992 denying the right, title and interest of the plaintiffs; and prior to that one Danka Singh the owner of the suit land of schedule B of the plaint. The first and foremost condition for a plea of adverse possession is that the property must belong to someone else other than the person pleading his title on the basis of adverse possession. In this case the respondent No. 6 is claiming himself to be the true owner of the suit land measuring 03 satak and has been living there with his family since 01.01.1992. So, it creates a doubt before this Court that when a person claiming himself to be the owner of the suit land, then how can the same person asserts the plea of adverse possession. 17. In support of the case of the plaintiff-appellants they have exhibited some documents i.e. Exbt. 6, 7 and 8. The contesting defendant-respondents also filed documentary evidences in support of their case, these are marked as Exbt. C, D (subject to objection). Exbt. D indicates khatian No. 704 standing in the name of the plaintiffs, where in column No. 16 respondent Tapan Kumar Deb is shown as forceful possessor over the suit land measuring 0.03 acre and on careful perusal of the said khatian it appears that the same was issued by the authority as per order No. MR63/2003 No. 735-37 F.2 (10) SDM/DMN dated 17.03.2007 case No. REV/Revision/72/2007 under Section-95 of the TLR and LR Act, 1960. From the Exbt. 6 adduced by the plaintiffs it has appeared that the plaintiff on being disappointed by the order passed by the learned DM and Collector dated 15.02.2007 which is marked as Exbt. C has preferred a review under Section-96 of TLR & LR Act and on the basis of such review application preferred by the plaintiff which is marked Exbt. 6, the learned DM and Collector has stayed the Execution order dated 15.02.2007 passed in connection with this case under Section-95 of the TLR and LR Act by a Fax message which is marked as Exbt. 7. 18. Moreover, on perusal of the finally published khatian standing in the name of the plaintiff which is marked as Exbt. 2, it appears that nowhere in the said khatian the respondent No. 6 is shown as adverse or permissive possessor. So, considering the above fact and reasoning, it appears that the respondent have failed to satisfy the Court by producing any reliable evidence in respect of the plea of adverse possession in the suit land. 2, it appears that nowhere in the said khatian the respondent No. 6 is shown as adverse or permissive possessor. So, considering the above fact and reasoning, it appears that the respondent have failed to satisfy the Court by producing any reliable evidence in respect of the plea of adverse possession in the suit land. Rather, it is revealed that the answering respondent did not deny the right, title and interest of the plaintiff over the suit land. As such, when the respondent has no adverse possession over the suit land, Article-65 of the Limitation Act will not be attracted against the respondent and the question that the suit is barred by limitation or in the words the right, title and interest of the plaintiff on B schedule land is extinguished by way of adverse possession of the respondent beyond the period of prescription does not arise at all. 19. According to the appellants, they have purchased the suit land as mentioned in schedule A of the plaint on the strength of a registered deed bearing the number 1-2429 dated 20.05.2005 from one Bipin Chandra Das in lieu of consideration money (Exbt. 1) and accordingly, ROR was prepared in their name in khatian No. 704 under Mouja and T.K. Ramnagar and the suit plot surveyed in R.S. Plot No. 399/2222 in the name of the plaintiffs (Exbt. 2). 20. The respondents have challenged the validity of right, title and interest of the plaintiffs on the suit land mentioned in schedule B and schedule D of the plaint. According to the principal of Right of adverse possession, the alleged adverse possessor should first accept the title of true owner and then shall assert the plea of adverse possession against the true owner. But, surprisingly in the present appeal the respondents No. 1 to 8 particularly, the respondent No. 6 asserted that he was the owner-in-possession of the suit land measuring about 03 satak and have been living there with his family since 1992. It is not clear to the Court when a person claiming himself to the owner of the suit land as owner in that case how he can assert the plea of adverse possession. In the present case no document of ownership has been produced by the respondent No. 6. It is not clear to the Court when a person claiming himself to the owner of the suit land as owner in that case how he can assert the plea of adverse possession. In the present case no document of ownership has been produced by the respondent No. 6. Thus, a doubt creates in the mind of the Court as to how the said contesting respondents No. 1 to 8 have contested this suit, because, the respondents have failed to prove their adverse possession over the land in question. 21. Furthermore, on perusal of Exbt. A as relied upon by the respondents, it appears to this Court that in Exbt. A against plot No. 421 (part) to the northern side plot No. 399 has been shown under the possession of one Danka Singh. But, on perusal of the plaint it appears that the suit plot appertains to surveyed No. 399/2222 of Khatian No. 704 not appertains to plot No. 399 as averred by the respondents. Moreover, on perusal of Exbt. 2, it appears that plot No. 399 as relied upon by the respondents is situated to the contiguous north of said plot bearing number 399/2222. 22. On perusal of Exbt. 7 it transpires that DM and Collector, North Tripura ordered the concerned authority to stay the proceeding for correction of record in the name of the respondent in the ROR until further order. It is surprising how the contesting respondents have taken the plea of right of adverse possession over the suit land when disclaiming the suit land (land of schedule D) to be of own and purchased in the year 2005. The principle of adverse possession does not say like that because in a case of adverse possession the possessor should accept or admit the right of true owner and therefore shall assert the plea of adverse possession denying the right, title and interest against the true owner for a period of twelve years or more but on perusal of Exbt. 2 i.e. the khatian No. 704 as relied upon by the plaintiffs, nowhere I find the name of the respondents No. 6 to 9 in the respective column of possession of adverse possessor. 2 i.e. the khatian No. 704 as relied upon by the plaintiffs, nowhere I find the name of the respondents No. 6 to 9 in the respective column of possession of adverse possessor. On perusal of oral/exhibited documents of the plaintiffs, it appears to this Court that they have been clearly able to prove their right, title and interest over the suit land as mentioned in schedule A of the plaint. 23. On perusal of the foregoing discussions as well as the case record it appears that the respondents forcefully entered into the land of the plaintiffs and forcefully dispossessed them in land measuring 0.03 acres appertaining to R.S. Plot No. 399/2222 corresponding to C.S. Plot No. 415 (part) under khatian No. 704 of Mouja Tehsil Panisagar Revenue Circle-Dharmanagar, North Tripura. It appears from the case record respondent No. 6 forcefully taken into possession of the plaintiffs land measuring 0.03 acres of land which was possessed by the plaintiffs. Moreover, the respondent No. 6 in his cross-examination deposed that the plaintiffs have sought relief for land measuring decimals against them i.e. the respondents No. 1 to 8. He further deposed that they did not have any documentary evidence in respect of right, title and interest and possession for land measuring 3 decimals. So it revealed from the oral evidence of respondent No. 3 itself that he has no right, title and interest and possession over the suit land. 24. On perusal of the case record it appears that to substantiate the aforesaid issues both the parties have adduced oral evidence on record. Now, it is necessary to discuss the relevant portion of the evidence on record of both the parties. This Court already discussed and decided that the plaintiffs, the appellants herein have able to prove their right, title and interest over the suit land as mentioned in schedule A of the plaint. Now in respect of alleged plea of dispossession the plaintiffs and the respondents have adduced their witnesses. This Court already discussed and decided that the plaintiffs, the appellants herein have able to prove their right, title and interest over the suit land as mentioned in schedule A of the plaint. Now in respect of alleged plea of dispossession the plaintiffs and the respondents have adduced their witnesses. The plaintiff No. 1 in his examination-in-chief deposed that on 19.06.2005 the contesting respondents No. 1 to 8 have dispossessed them from the suit land as mentioned in schedule B and have raised pucca construction on the suit land as mentioned in schedule C and the plaintiffs further took the plea that the respondent No. 9 with the help of respondents No. 1 to 8 have dispossessed them from the suit land as mentioned in schedule D. 25. PW-2 Ranjit Kumar Paul in his examination-in-chief supported the version of the plaintiff No. 1. during cross by the respondents No. 1 to 8 deposed that Danka Singh use to stay on a land situated to the western side of the suit land and the plaintiff No. 1 is possessing 12 satak of land belong to said Bipin Chandra Das. During cross by the respondent No. 8, deposed that the respondents forcefully occupied the land measuring a decimals and the plaintiffs were disposed prior to demarcation and the said respondents arranged for dressing of earth on 26.06.2005. 26. PW-3, Raman Deb in his examination in chief tried to support the version of the plaintiffs in the plaint. But, during cross he deposed that the land of Danka Singh is now fall vacant. During cross by respondent No. 9 he deposed that the said respondent has occupied land on 11th Asadha proceeding last Asadha. 27. PW-4 Lal Mohan Das also deposed in the same line like other. PWs during cross by the respondents No. 1 to 8, nothing came out relevant during cross by the respondent No. 9. This witness deposed that the respondent No. 9 is possessing land measuring 4 decimals since last year and prior to that the land was vacant. 28. PW-5 in his chief also deposed in the same manner. In his cross nothing came out relevant. During cross by the respondent No. 9 he deposed that the said respondent is possessing some land to the contiguous north of schedule land. The respondent No. 9 as DW-1 in his chief tried to support the version of written statement. 28. PW-5 in his chief also deposed in the same manner. In his cross nothing came out relevant. During cross by the respondent No. 9 he deposed that the said respondent is possessing some land to the contiguous north of schedule land. The respondent No. 9 as DW-1 in his chief tried to support the version of written statement. During cross by the plaintiffs he deposed that at the time of demarcation he was present and he raised one pucca construction in the B schedule. 29. These are the synopsis of the evidence on record of the parties in respect of determination of the aforesaid issues. This Court heard the argument of the learned counsel appearing for the parties at length regarding alleged plea of dispossession of the plaintiffs by the respondents. On perusal of the evidence on record, it appears to me that the respondent No. 6 in his cross admitted that he does not have any documentary evidence in respect of the suit plot and he made pucca construction over the same. On perusal of oral evidence on record of the plaintiffs it appears to this Court that all the witnesses of the plaintiffs specifically whispered that the respondents No. 1 to 8 on 19.06.2005 dispossessed the plaintiffs, the appellants herein from the suit land as mentioned in schedule B and raised construction as mentioned in schedule C. the respondents by the art of cross examination could not raise any doubt on the plea of the plaintiffs regarding alleged plea of dispossession. More so, the evidence on record of the respondents could not satisfy the credence of Court to disbelieve the evidence on record of the plaintiffs regarding plea of dispossession. 30. At the same time, the respondent No. 9 although took the plea that she has purchased the suit land (land of schedule B) but, the said respondent could not produce any documentary evidence on record. Furthermore, by the art of cross examination the said respondents could not raise any doubt to disbelieve the evidence on record of the plaintiffs regarding alleged plea of dispossession on 26.06.2005, although, the said respondent adduced some witnesses. But, her evidence on record failed to satisfy the Court about the plea of adverse possession as this Court already stated and discussed. But, her evidence on record failed to satisfy the Court about the plea of adverse possession as this Court already stated and discussed. No evidence on record that the respondents were possessing the suit land prior to alleged plea of dispossession and the concerned record of right also does not satisfy their contention of possession since long back on the suit land and mentioned in schedule B and D of the plaint. The evidence on record of the plaintiffs seems to this Court more trustworthy and believable which I hereby do. This Court has already decided that the respondents have failed to prove their right, title and interest over the suit land. Also they have failed to prove that prior to the plea of dispossession they were in possession of the suit land. 31. Rather, from the evidence on record, it reveals that the respondents No. 1 to 8 on 19.05.2005 have forcefully occupied the suit land as mentioned in schedule B and raised construction as mentioned in schedule C of the plaint and the respondent No. 9 with the said of the other respondents forcefully dispossessed the plaintiffs from the suit land as mentioned in schedule D of the plaint. Thus, in view of the discussion made above it appears to this Court that the plaintiffs of the present appeal were dispossessed by the respondents from the suit land as mentioned in schedule B and D of the plaint. 32. In view of above discussions and decisions with regard to the aforesaid issues, this Court is of the considered view that the plaintiffs have a right, title and interest over the suit land. The respondents also failed to satisfy this Court by adducing the satisfactory oral or documentary evidence. It also appears that the respondent No. 6 failed to prove his adversary right over the land measuring. 03 acres of land specifically mentioned in the schedule of the plaint. As such, the plaintiff-appellants are entitled to get the decree of declaration of right, title and interest and recovery of possession in the present appeal. 33. It is always the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment T.A. No. 19 of 2012 dated 09.02.2018, District Judge, North Tripura, Dharmanagar, is interfered with and set aside. The decree as drawn thereupon is also quashed. 33. It is always the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment T.A. No. 19 of 2012 dated 09.02.2018, District Judge, North Tripura, Dharmanagar, is interfered with and set aside. The decree as drawn thereupon is also quashed. As consequence thereof, the judgment and decree of the trial court in T.S. No. 04 of 2006 passed by the learned Civil Judge (Jr.) Division, Dharmanagar, North Tripura dated 25.06.2012 & 02.07.2012 is restored. 34. In the result the appeal stands allowed. Draw the decree accordingly and send down the LCRs thereafter.