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2022 DIGILAW 77 (TRI)

Rakesh Rn. Sharma v. Mahitosh Sharma

2022-02-15

T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. A. Nandi, learned counsel appearing for the appellant. Also heard Mr. A. Bhowmik, learned counsel and Mr. A. Tilak Paul, learned counsel, appearing for the respondents. 2. This appeal has been filed under Section-100 of the CPC against the judgment and appellate decree dated 26.09.2018 and 03.10.2018 respectively passed by the learned District Judge, North Tripura District Judiciary, Dharmanagar in Title Appeal No.02 of 2018 allowing the appeal preferred by the respondent-defendants setting aside the original judgment dated 12.07.2017 and decree dated 21.07.2017 passed by the learned Civil Judge (Jr. Division), Dharmanagar, North Tripura in Title Suit No.06 of 2015. At the time of admitting the appeal, the following substantial questions of law were formulated by this Court: (i) Whether the appellate decree in violation of provision of Order-VII Rule-3 of CPC is sustainable in law? (ii) Whether the decree as to title confirmed by the sale deed and finally published mutation record can be interfered by appellant forum? 3. The facts and circumstances leading to this appeal may be stated in a nut shell as follows: The appellant as plaintiff has instituted original suit bearing number Title Suit 06 of 2015 in the court of the learned Civil Judge (Jr. Division), Dharmanagar, North Tripura for declaration of right, title and interest and recovery of possession as consequential relief and have also claimed for perpetual injunction wherein, he impleaded the respondents as defendants. 4. The plaint case in short compass is that the original plaintiff had purchased the landed property measuring 20 satak i.e. 0.20 acre by a registered sale deed No.1-3586 dated 05.10.1983 for valuable consideration money from one Sri B irendra Singha and Shri Dhrendra Singha son of late Radha Mohan Singha and thereafter he had been owing and possessing the purchased landed property by constructing residential hut and residing therein with his family. 5. After purchase of the landed property measuring 0.20 acre, the plaintiff, the appellant herein, has sold a land measuring 0.06 acre. For widening of road further, land measuring 0.04 acre was also taken by the competent authority. The remaining 0.10 acres of land was mutated in his name and a separate khatian No.1584 of Mouja and Teheshil Kameswar, North Tripura was also created. The description of the suit property is clearly mentioned in the plaint by showing separate schedule. For widening of road further, land measuring 0.04 acre was also taken by the competent authority. The remaining 0.10 acres of land was mutated in his name and a separate khatian No.1584 of Mouja and Teheshil Kameswar, North Tripura was also created. The description of the suit property is clearly mentioned in the plaint by showing separate schedule. 6 Further, the case of the appellant is that on last 20th January, 2008, the father of the defendants got possession of land measuring 0.06 acres with the consen4t of plaintiff for temporary erection of party office, otherwise would be handed over in favour of the plaintiff as soon as the State Election is over. The said portion in the occupation of defendants have shown more particularly in schedule-B otherwise the part and parcel of schedule-A as inserted in the plaint. The defendants, the respondents herein, did not fulfill their assurance and on the expiry of term so stipulated they have declined to surrender/vacate/handover the possession of land measurin0.06 acre otherwise asked for recovery by the plaintiff in the suit instituted by him before the Court of Civul Judge, Jr. Division, Dharmanagar, registered as T.S. No.06 of 2015. Thereafter, the plaintiff relied the necessary documents like sale deed No.1-3586 dated 05.10.1983, finally published khatian No.-1584 of Mouja Kameswar, trace map etc. exhibited at the time of recording of his deposition. 7. It is also the further case of the appellant that at one point of time he had made a prayer for demarcation of his land before the SDM, Dharmanagar and in response to his prayer, the land holdings of the appellant was properly demarcated by the competent authority followed by posting of pillars covering the entire holding. 8. As per the plaint, the appellant is the owner having right, title and interest over the land. The respondents are illegal occupier of the suit land more particularly described in the schedule-B of the plaint. The appellant has sought relief in the nature of declaration of right, title and interest and have also sought for recovery of khas possession as consequential relief as per provision of the relevant Act. 9. The respondents are illegal occupier of the suit land more particularly described in the schedule-B of the plaint. The appellant has sought relief in the nature of declaration of right, title and interest and have also sought for recovery of khas possession as consequential relief as per provision of the relevant Act. 9. The respondents have contested the suit by filing written statement stating inter alia that they have denied the claim of purchase of landed property for valuable consideration by the plaintiff on the strength of a registered sale deed No.1-3586 dated 05.10.1983 and have also denied the claim of enjoying peaceful possession of the purchased land. The respondents have further stated in their written statement that the suit land as described in schedule-B of the plaint (T.S. 06 of 2015) was all along in their possession since 1952 A.D. they have also disputed the boundary shown b y the appellant. 10. The respondents have also stated that the plot numbers like plot No.1950 and 2183 of Khatian No.1584 of Mouja Kameswar, Sub-Division and revenue circle Dharmanagar District, North Tripura was wrongly inserted in the khatian created in the name of the appellant. The respondents did not made any attempt for correction before any competent authority at any point of time. The respondents have also took the plea that they are entitled to title perfected by provisions of adverse possession. The respondents have also relied the documents like Electric Pass Book, Enquiry report of Teheshildar dated 26.04.2014, registered Deed No.1-1331 of 1952. 11. After hearing both sides, the learned trial court decreed the original suit by judgment dated 12.07.2017 observing thus: 'In the result the suit of the plaintiff is decreed on contest with cost with a declaration that the plaintiff has right, title and interest over the suit land. The plaintiff is entitled to recover the possession of the B-Schedule land by removing the belongings of the defendants at their own cost. Prepare decree accordingly and put up for signature before me within fourteen days from today, latest on 24.07.2017.' 12. The plaintiff is entitled to recover the possession of the B-Schedule land by removing the belongings of the defendants at their own cost. Prepare decree accordingly and put up for signature before me within fourteen days from today, latest on 24.07.2017.' 12. Having taking into consideration of the rival contentions of the parties and in view of the observation made by the learned court below, learned District Judge, North Tripura District Judiciary, Dharmanagar in Title Appeal No.02 of 2018, setting aside the original judgment dated 12.07.2017 and decree dated 21.07.2017, has observed thus: 'In view of my findings under aforementioned points, this appeal is partly allowed. The judgment dated 12.07.2017 and decree dated 21.07.2017 passed by the learned Court below in suit bearing T.S.06 of 2015 is hereby set aside. Parties are to bear their own costs of the suit Prepare appellate decree accordingly.' 13. Being highly aggrieved by and dissatisfied against the appellate judgment and decree dated 26.09.2018 and 03.10.2018 passed b y the learned District Judge, Dharmanagar, North Tripura in Title Appeal No.02 of 2018, the present appeal has been preferred by the appellant. 14. Having appreciated the facts and circumstances of the case in brief, the observations made by both the courts below also the submissions advanced by the learned counsel for the parties and on consent of the learned counsel appearing for the parties, this Court is of the considered opinion that, justice would be met if the matter is remand back to the appropriate authority setting aside the orders passed by the Appellate Court as well as the trial Court for afresh adjudication. Accordingly, the matter is remand back to the appropriate authority with the following observations and directions: 15. The plaintiff shall file an application seeking appointment of a Survey Commissioner for identifying, fixing up the boundaries and demarcating the suit schedule properties and also file a sketch plan of the suit schedule properties belonged to the plaintiff as well as the property of the defendant-respondents herein to show whether there is any encroachment by any party upon other parties land. The plaintiff shall file the appropriate application after receipt of the LCRs from the High Court and the Court shall fix a date without any delay and list the matter issuing notices to the parties from the date of receipt of the LCRs. 16. The plaintiff shall file the appropriate application after receipt of the LCRs from the High Court and the Court shall fix a date without any delay and list the matter issuing notices to the parties from the date of receipt of the LCRs. 16. After appointment of the Survey Commissioner following due procedure, shall file a report. The said Survey Commissioner's report shall be received at the earliest after filing the application and the order would be passed. After receipt of the report, the parties may file their objections, if any, and the evidence the Survey Commissioner may also be recorded. Thereafter, the court below shall reconsider the exhibits and the evidence on record and shall pass orders after hearing both sides. 17. It is needless to say that this exercise shall be completed on priority basis preferably within a period of six months. In view of the balance of convenience, there shall be an order of status quo be maintained by both the parties. The parties shall not create any third party interest over the suit schedule properties. The expenses payable to the Survey Commissioner shall be borne equally by both the parties. 18. In view of the above observations and directions, the present appeal filed by the appellant stands disposed of. Consequently, the orders passed by both the courts below, stand set aside and accordingly, the matter is remitted back to the appropriate authority for fresh adjudication..