Tripura High Court
For vs Mr. S. Bhattacharjee on 6 July, 2021
HIGH COURT OF TRIPURA
AGARTALA
RSA 08 of 2021
For Appellant(s) : Mr. S.M. Chakraborty, Sr. Adv.
Mr. S. Bhattacharjee, Adv.
For Respondent(s) : None.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
06/07/2021
Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. S.
Bhattacharjee, learned counsel appearing for the plaintiff-appellant.
This is an appeal under Section 100 of the CPC from the judgment dated
09.02.2021 delivered in Title Appeal No.08 of 2019 by the District Judge, Sepahijala District,
Sonamura reversing the judgment and decree respectively dated 05.08.2019 and
14.08.2019 delivered in Title Suit 11 of 1987 by the Civil Judge (Senior Division), Sepahijala,
Tripura.
The suit as instituted by the appellant was for declaration of title and
consequential decree of ejectment of the defendant from the suit land and removing
structures etc. denoting his possession. The trial Judge had decreed the suit on appreciation
of the evidence. The defendant being aggrieved filed the appeal under Section 96 of the
CPC in the Court of the District Judge, Sepahijala, Sonamura being Title Appeal No.08 of
2019.
By the impugned judgment, the appeal was allowed on returning the following
finding that there had been no proof of service of notice under Section 106 of the Transfer
of Property Act and hence, the suit was inherently defective and was not maintainable.
Mr. S.M. Chakraborty, learned senior counsel has submitted that the defendant
[DW-1] has clearly admitted in his cross-examination that he had received the notice sent
by the plaintiff for vacating the suit land but he did not vacate the suit land. Even, he had
filed one suit in the same Court being Title Suit 25 of 1986 against the plaintiff and others
for declaring his title on adverse possession. According to him, the said suit has been stayed
subject to completion of the suit in hand.
On the basis of the said statement in the cross-examination, Mr. Chakraborty,
learned senior counsel has quite emphatically submitted that the said statement in the
cross-examination is an admission under Section 17 of the Indian Evidence Act and thus, the
proposition of law, as laid down in Section 58 of the Indian Evidence Act, would come into
play. However, on query of this Court, Mr. Chakraborty, learned senior counsel has fairly
submitted that in the written statement the defendant had denied that he had received any
notice for eviction. This appeal is admitted on the following substantial question of law :
"Whether the fact which has been disputed in the written statement
and where no documentary evidence in support of serving notice for
eviction has been filed and proved in the proceeding can be held to
have been admitted on the basis of a statement admitting that fact of
service of notice for eviction in the cross-examination by the
defendant ?"
Issue notice.
The appellant shall take steps for service of notice on the respondent by
registered post with AD within a week from today.
Notice is made returnable on 09.08.2021.
Registry shall call for the LCRs in the meanwhile.
It is made absolutely clear that if there is no impediment in respect of service of
notice, this appeal will be heard on the returnable date.
JUDGE
Sabyasachi B
