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2022 DIGILAW 69 (TRI)

Prankrishna Debnath v. Puja Das

2022-02-11

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. A. Pal, learned counsel appearing for the appellants. Also heard Mr. D.C. Roy, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the CPC against the judgment dated 20.02.2018 passed by the learned District Judge, North Tripura, Dharmanagar in Title Appeal No. 43 of 2016, partly allowing the appeal, setting aside the order of dismissal passed by the learned Civil Judge (Jr. Division), Dharmanagar, North Tripura, dated 14.07.2016 in the Title Suit No. 31 of 2010. At the time of admitting the appeal, the following substantial question of law was formulated by this Court: 'Whether the finding that the appellant has failed to prove the date when she was actually disposed and denial of the decree of recovery is grossly perverse inasmuch as the first appellate court itself has returned the finding that the defendants have failed to prove their plea of adverse possession and the defendants were found in possession?' 3. The facts that would essentially be required for appreciating the substantial questions of law may be introduced at the beginning. The plaintiff, the appellants herein filed a suit for declaration of right, title and interest and for recovery of possession of the suit land described in the plaint of Title Suit No. 31 of 2010 before the Court of learned Civil Judge (Jr. Division), Dharmanagar, North Tripura. In the said suit, the present defendant-respondents herein, were made principal defendants and 81 others were made pro-defendants but, in the trial Court, only the defendant No. 1 appeared and contested the suit by filing written statement and the pro-defendants did not appear to contest the suit. As such, it proceeded ex-parte against them. 4. The learned trial Court dismissed the suit by its judgment dated 14.07.2016, against which a Title Appeal was filed in the Court of the learned District Judge North Tripura, Dharmanagar, which was registered as T.A. No. 43 of 2016 and in that appeal also, only the respondent Nos. 1, 2 and 4 appeared through a lawyer by submitting vakalatnama and the pro-defendants, who were pro-defendants in the trial court, did not appear and thus, expressed their disinclination in contesting the suit as well as the appeal preferred with reference to that suit and apparently admitted the claim of the plaintiff-appellants involved in the suit. 1, 2 and 4 appeared through a lawyer by submitting vakalatnama and the pro-defendants, who were pro-defendants in the trial court, did not appear and thus, expressed their disinclination in contesting the suit as well as the appeal preferred with reference to that suit and apparently admitted the claim of the plaintiff-appellants involved in the suit. 5. After hearing both the parties, the learned District Judge, North Tripura, Dharmanagar, on 20.02.2018 in Title Appeal No. 43 of 2016 observed as under: 'In the result, the appeal is partly allowed on contest. The judgment and decree dated 14.07.2016 and 21.07.2016 respectively passed by the learned Civil Judge (Junior Division), Dharmanagar, North Tripura in Title Suit No. 31 of 2010 whereby and whereunder, the learned trial court has dismissed the suit on contest is hereby set aside. The right, title and interest of the plaintiff-appellant over the suit land is hereby declared. The appeal is partly allowed on contest with cost. Prepare decree accordingly within time. Send back the L.C. Record along with a copy of this judgment.' 6. The suit land as described in the first schedule of the plaint is a land measuring 0.06 acre pertaining to Old Plot No. 579(P), Corresponding to RS Plot No. 761(P) of Khatian No. 159/1. Along with the suit land some other properties were originally owned and possessed by her father along with other co-sharers, which are recorded in the joint khatian Nos. 159/1, 159/2, 159/3, 159/4, 159/5 and 159/6. 7. Further, the father of the plaintiffs, the appellants herein made amicable arrangement with his other co-sharers and he became the exclusive possessor of the suit land along with some other lands. The appellants are having two sisters namely, Smt. Jharna Nath and Smti. Smriti Nath and they jointly purchased the suit land along with some other lands measuring 0.20 acre from their father, Brojendra Ch. Nath, now deceased, by registered sale deed and got possession therein. Subsequently, the two sisters of the appellants by executed registered sale deed dated 09.09.2009 and after such purchase, the appellants became the absolute owner of the said 0.20 acres of land, which was the suit land of the said suit. 8. Nath, now deceased, by registered sale deed and got possession therein. Subsequently, the two sisters of the appellants by executed registered sale deed dated 09.09.2009 and after such purchase, the appellants became the absolute owner of the said 0.20 acres of land, which was the suit land of the said suit. 8. It was the further case of the plaintiffs that the respondents by finding the suit land vacant illegally constructed temporary huts including kutcha borehole latrine and the kutcha well within the suit land and the said land was described in schedule-2 of the plaint. It was further stated that the respondent No. 1 was once interested to purchase the suit land from the plaintiff but, later on he was avoiding the same on some flimsy grounds and no agreement was made between them. Due to unlawful possession of the suit land by the respondent No. 1, the plaintiff was unable to mutate the suit land in her name. 9. Thereafter, she requested the respondent No. 1 to vacate the suit land on several occasions and lastly in October, 2010, but they did not pay any heed to that request. The cause of action of the suit arose w.e.f. 15.01.2006. The plaintiff prayed for granting a decree declaring her right, title and interest over the suit land and a decree for recovery of possession from the respondents by demolishing the structures thereon. 10. Thereafter, after receipt of summons from the learned court, the respondent No. 1 who was the principal defendant No. 1, only appeared and contested by the suit by filing written statement. He stated that he was the possessor of the suit land described in the schedule-1 of the plaint and the predecessor-in-interest of the plaintiff, namely, Brojendra Ch. Nath wanted to sell the suit land to him during his lifetime with other landed properties for a consideration of Rs. 22,500/- and the said amount was received by said Brojendra Ch. Nath with a condition that he would execute and register a sale deed in favour of the respondent No. 1 and inducted the respondent No. 1 to possess of the suit land. 11. Since then, the respondent No. 1 has been possessing the suit land along with the members of his family by constructing dwelling huts since January, 1995 but, said Brojendra Ch. 11. Since then, the respondent No. 1 has been possessing the suit land along with the members of his family by constructing dwelling huts since January, 1995 but, said Brojendra Ch. Nath never executed any sale deed in his favour though he continued his possession over the suit land. He, therefore, claimed adverse possession over the said land since 15.02.1997 within the knowledge of the true owner. 12. On the basis of the pleadings of the parties, the learned trial court framed five numbers of issues. The first one is regarding maintainability of the suit and the court decided the same in favour of the plaintiff. The second one was regarding the cause of action in filing the suit and the learned trial court found that there was no cause of action in filing the suit on the ground that in cross-examination of the plaintiff she deposed that the respondent No. 1 was possessing the suit land since 1996 in place of 2006, so pleaded in the plaint. 13. The issue No. 3 was pertaining to the right, title and interest of the appellant over the suit land and the learned trial Court came to a finding that the appellant failed to satisfy the court with any mutual partition of family settlement amongst her predecessor-in-interest and other co-sharers and that record of right was in joint names and that the plaintiff purchased the suit land keeping the respondent No. 1 in possession. So, the learned trial Court found that the plaintiff failed to establish her possession over the suit land and decided the remaining issues against her and dismissed the suit. 14. Against the said judgment of the learned trial Court, the plaintiff filed an appeal in the Court of the learned District Judge, North Tripura, Dharmanagar which was numbered as T.A. No. 43 of 2016. The learned Appellate Court by its judgment dated 20.02.2018 partly allowed the appeal, so far the right, title and interest of the plaintiff is concerned by setting aside the judgment passed by the learned trial Court below. However, it did not allow the prayer for recovery of possession of the suit land by evicting the respondents there from on the ground that the plaintiff in her plaint stated that the cause of action arose on 15.01.2006 but, during cross-examination, stated that from 1996 the respondent No. 1 has been in possession over the same. However, it did not allow the prayer for recovery of possession of the suit land by evicting the respondents there from on the ground that the plaintiff in her plaint stated that the cause of action arose on 15.01.2006 but, during cross-examination, stated that from 1996 the respondent No. 1 has been in possession over the same. 15. Being seriously aggrieved by and dissatisfied with the impugned judgment dated 20.02.2018 of the learned trial Court below, the plaintiff, the appellants herein has preferred this appeal. 16. Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. A. Pal, learned counsel appearing for the appellants has submitted that the court below committed serious error of law and fact at the time of rejecting the prayer for recovery of possession in favour of the appellants. 17. He has further submitted that the learned Appellate Court below while setting aside of the judgment of the learned trial Court being the last court of fact and law, ought to have appreciated and considered that the statement made by the appellants in cross-examination that the respondent No. 1 has been possessing the suit land since 1996 was simply a slip of tongue as her pleaded case was that the said respondent has been possessing the suit land since 2006 and in the written statement submitted by the respondent No. 1 also, nowhere claimed that he has been in possession of the suit land since 1996, rather his claim was that he has been possessing the same since 1995 and adversely from 1997 and also that the defence of the respondent was hit by the provision of Section-53A of the T.P. Act as on written agreement was ever made to protect the possession of the respondent. 18. Mr. Chakraborty, learned senior counsel has averred that the learned Appellate Court below ought to have evaluated the evidence of the appellant with referred to the entire pleadings and evidence on record and not on the basis of a stray statement came out in the cross-examination. He has further stated that the Court below failed to appreciate that the statement of the appellants in cross-examination as to the possession of the respondent No. 1 from 1996 had a close proximity with the year 2006 and the said statement nowhere supported the pleaded case of the respondent. He has further stated that the Court below failed to appreciate that the statement of the appellants in cross-examination as to the possession of the respondent No. 1 from 1996 had a close proximity with the year 2006 and the said statement nowhere supported the pleaded case of the respondent. As such, the learned Appellate Court so far the refusal of recovery of possession is concerned, is unsustainable in the eye of law and liable to be interfered with. 19. On the other hand, Mr. Roy, learned counsel appearing for the respondents has submitted that the principal defendant, contested the suit by filing written statement denying the averments of the plaint. The main defence of the principal defendant is based on his adverse possession over the suit land. He has stated that he is the possessor of the suit land described in the first schedule of the plaint and the predecessor in interest of the plaintiff-appellants namely, Brojendra Ch. Nath during his life time wanted to sell the suit land along with other landed properties to him for a consideration amount of Rs. 22,500/- only and accordingly the said Brojendra Ch. Nath received the amount on the condition that he would execute and registered and sale deed in favour of the principal defendant and he also inducted the principal defendant into the possession of the suit land. 20. He has further submitted that principal defendant is possessing the suit land along with his family by constructing dwelling hut since, 1995. But said Brojendra Ch. Nath (since deceased) never executed any sale deed in favour of the principal defendant and accordingly his possession continued in the suit land. The principal defendant has claimed that he is adversely possessing the suit land since last 14 years on and from 15.02.1997 within the knowledge of real owner i.e. Brojendra Ch. Nath and the people at large. The principal defendant has also challenged the validity of the registered sale deed No. 1-1025 dated 18.04.2005 and registered sale deed No. 1-1863 dated 09.09.2009 and thus, the principal defendant prayed for dismissal of the suit with cost. 21. Nath and the people at large. The principal defendant has also challenged the validity of the registered sale deed No. 1-1025 dated 18.04.2005 and registered sale deed No. 1-1863 dated 09.09.2009 and thus, the principal defendant prayed for dismissal of the suit with cost. 21. It reveals from the records that the plaintiff-appellants in the plaint specifically stated that principal defendant finding the suit land vacant illegally setting up temporary huts including a kutcha borehole latrine and a kutcha well within the suit land of first schedule and those huts are described in the second schedule of the plaint. But, the plaintiff failed to mention the specific date on which the principal defendant took the possession over the suit land. Though, the plaintiff in her plaint has stated that the cause of action of this suit has arisen out on 15.01.2006, but during her cross-examination in the Court she has very categorically deposed that the suit land is under the possession of the principal defendant since 1996. 22. It is pertinent to mention herein that the principal defendant in his cross-examination deposed that he could not say the dag number and khatian number of the land on which he is residing. He further deposed that he had a sale transaction with Brajendra Ch. Nath C/W purchase of one landed property which is the suit land and the sale deed was also executed in c/w that sale but, he has not submitted the copy of the said agreement as it had been stolen. 23. Moreover, no document is proved by the principal defendant regarding his possession. He has deposed in his cross-examination that he has not submitted any written application before the Tehsildar that he is possessing the suit land. He has also stated that he did not know whether Brajendra Ch. Nath sold out his property to his daughter. 24. In totality of the evidence on record, this Court finds that the case of the plaintiff-appellants is that the cause of action arose on 15.01.2006 when the defendant set up suit features in the suit land finding the suit land as a vacant land. But during cross-examination plaintiff-appellant admitted the fact that from the year 1996 the suit land has been possessing by Sri Ratan Das, the principal defendant (since deceased). 25. But during cross-examination plaintiff-appellant admitted the fact that from the year 1996 the suit land has been possessing by Sri Ratan Das, the principal defendant (since deceased). 25. On the contrary, the principal defendant took the plea that they are possessing the land denying the right, title and interest of Brajendra Ch. Nath, the predecessor-in-interest of the plaintiff-appellants and he did not know whether Brajendra Ch. Nath had transferred the suit property to his daughters. Mere continuous possession of the suit land does not establish the defendant plea of title of adverse possession. 26. To establish the adverse possession, defendant must prove that he is in possession of the suit land denying the right, title and interest of the truefull owner and in this regard no documentary evidence is led by the defendant. As such, it is clear that the defendant has failed to establish his plea of adverse possessory right by adducing any convincing evidence. In that view of the matter, possession of the principal defendant appears to be illegal though not adverse. 27. In Karnataka Board of Wakf v. Govt. of India, reported in (2004) 10 SCC 779 , at para-11, the Apex Court observed as under: 'Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The Court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed'. 28. The defendants on one hand contested this case on the strength of adverse possession and on the other hand they contested on the strength of sale transaction. 28. The defendants on one hand contested this case on the strength of adverse possession and on the other hand they contested on the strength of sale transaction. The defendants neither placed any documentary proof either in support of adverse possession, nor sale. Moreover, if it is a case of adverse possession, the defendants are supposed to fit into the requirements contemplated by Apex Court. If they bank on the arguments of sale, it has to be established beyond reasonable doubt. Further the case of the defendants if tested under legal scrutiny is stopped in advancing both arguments as adverse possession and sale the same is not open for them, as it is not permissible in law. Possession over a property cannot be two fold. 29. In this case, it is already proved by cogent documentary evidence that rightful owner Brajendra Ch. Nath had transferred 0.20 acre land of khatian No. 159/1 of RS Plot No. 761 in favour of Smt. Jharna Nath, Smt., Smriti Nath and Smt. Arati Nath by registered sale deed No. 1-1025 dated 18.04.2005 and said Smt. Jharna Nath and Smt. Smriti Nath had transferred 0.014 acre of land of khatian No. 159/1 of RS Plot No. 761 in favour of Smt. Arati Nath by registered sale deed No. 1-1863 dated 09.09.2009, which are proved as Exbt. 9 and Exbt. 10. So, the right, title and interest of the plaintiff-appellants over the suit land is proved. 30. In the appeal, the learned Appellate Court below has given the finding with regard to the ownership and possession of the appellants rejecting the case of the defendants with regard to their right of possession over the property, holding that the defendants are illegally occupying the property. In the absence of any finding with regard to the adverse possession, once the defendant is found illegally possessing the suit property, the plaintiff, the appellants are entitled for consequential reliefs i.e. the defendant, the respondents have to be directed to vacate the premises. 31. 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 in TA No. 43 of 2016 dated 20.02.2018, passed by the learned District Judge, North Tripura, Dharmanagar, stands modified to the extent as indicated above. 32. 31. 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 in TA No. 43 of 2016 dated 20.02.2018, passed by the learned District Judge, North Tripura, Dharmanagar, stands modified to the extent as indicated above. 32. In the result, the appeal stands allowed declaring the right, title and possession in favour of the appellants. The respondents are directed to vacate and handover the possession of suit schedule property to the appellants within a period of two month from today. 33. Draw the decree accordingly and send down the LCRs thereafter.