Tripura High Court
Smt. Nitu Dey And Others vs The State Of Tripura And Others on 1 April, 2021
Page 1 of 5
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
RSA No.37 of 2016
Smt. Nitu Dey and others
......Appellant(s)
VERSUS
The State of Tripura and others
......Respondent(s)
For Appellant(s) : Mr. T.D. Majumder, Sr. Advocate,
Mr. Raju Datta, Advocate.
For Respondent(s) : Mr. B.N. Majumder, Sr. Advocate,
Mr. S.C. Sen, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
ORDER
01.04.2021
This appeal is filed by the original plaintiff. His suit was
dismissed by the learned Magistrate. His appeal was also dismissed by the
District Court upon which this second appeal has been filed. At the time of
admission of appeal following substantial question of law was framed:
"Whether the judgment and decree passed by the Court
below and affirmed by the appellate Court suffer from
perversity for non-consideration of the pleadings and
documentary evidence adduced by the plaintiff-appellant?
[2] In the suit the plaintiff had claimed that he was in
uninterrupted adverse possession of the suit land since the year 1977 which
admittedly belongs to the Government. The plaintiff therefore claimed a
decree of declaration that the plaintiff had acquired a title over the suit land
by adverse possession and he may therefore be described as the owner in
possession of the suit land. According to the plaintiff, the land was earlier
occupied and encroached by some other people who left the country and
probably went away to East Pakistan at the time of partition. In the year
1977 wife of the plaintiff acquired possession of the land in question under
a registered deed executed by the occupier and since then she and thereafter
after her death the plaintiff as a legal heir continued to enjoy the possession
which was hostile to and adverse to the Government-owner.
[3] The defendants filed the detailed written statement denying the
longstanding possession of the plaintiff or that such possession was
adverse. In short, the suit was opposed on all grounds. It was also pointed
out that proceedings under Tripura Public Premises (Eviction of
Unauthorized Occupants Act, 1982) (the Act, for short) were initiated by
issuance of notice dated 30th September, 2005. However, due to technical
reasons the proceedings were not pursued. Second notice was issued under
the said Act which culminated into the order of eviction being passed on
08.03.2010. Second notice was issued on 08.12.2009 and order of eviction
was passed on 08.03.2010. It was pointed out that the land is recorded in
the revenue record as Government Khas land and the ownership of the
Government over the land is never in dispute.
[4] The plaintiff examined himself and two other witnesses in
support of his claim. In examination-in-chief he basically stated what he
had already declared in the suit. He was cross-examined at length by the
Government. The other two witnesses examined by the plaintiff were his
neighbours. They also supported his case.
[5] The trial Court dismissed the suit principally on two grounds.
Firstly, that any length of possession unless such possession is adverse to
the owner would not ripen into any right in favour of the occupant and
secondly that the ground of adverse possession cannot be raised for
ascertaining title but can only be a defence in a suit for eviction.
[6] The plaintiff challenged the said judgment and decree dated
15.07.2015 before the District Court. The District Court by a detailed
judgment dismissed the appeal by the judgment dated 17.06.2016. The
learned Judge was of the opinion that the plaintiff had failed to establish
continues uninterrupted adverse possession of the land for over 30 years.
The learned Judge was of the opinion that unless and until it is shown
through reliable evidence that the occupation and possession of the land by
the plaintiff was adverse and hostile to the owner, by mere passage of time
the plaintiff would acquire no rights.
[7] Having heard learned counsel for the parties and having
perused the documents on record I do not find that the courts below have
committed any error which would permit me to reverse the judgments and
allow the appeal of the original plaintiff. Firstly, two courts have come to
concurrent findings of fact that even if the plaintiff was in possession since
long such possession was not hostile and adverse to the owner. More
importantly, as pointed out by the defendants in the written statement the
proceedings under the Public Premises Act were instituted which
culminated into an order of eviction being passed by the competent
authority in the year 2010. It is not the case of the plaintiff that this order
was challenged and set aside. The plaintiff had a right to file appeal against
the said order under the Act itself and subject to such right, as per Section
12 of the Public Premises Act every order made by the competent authority
or the appellate authority would be final and shall not be called in question
in any original suit, application for execution and no injunction shall be
granted by any court or other authority in respect of any action taken
pursuant to such an order. If any relief is granted to the plaintiff in these
proceedings, the same would run directly contrary to the order of eviction
passed by the Estate Officer under the Public Premises Act. Section 12 of
the said Act therefore prohibits entertainment of any suit or proceedings in
relation to the order passed by the Estate officer or the appellate authority
under the said Act.
[8] Inter alia on such grounds the second appeal is dismissed.
Pending application(s), if any, also stands disposed of. Interim order(s), if
any, stands vacated.
(AKIL KURESHI), CJ
Dipesh
