Shri Tapan Majumder vs Sri Nepal Bhawal
2021 Latest Caselaw 599 Tri

                 HIGH COURT OF TRIPURA
                       AGARTALA

                    RSA No. 36/2019


1. Shri Tapan Majumder
S/o - Late Sushil Majumder, Near Shib Bari, P.O. and P.S. -
R.K. Pur, Udaipur, District - Gomati Tripura.

                        -----Defendant No-5      Appellant(s)

           VERSUS

1. Sri Nepal Bhawal
S/o. Sri Nibaran Bhawal, Village - Tepania, P.S. - R.K.
Pur, Udaipur.


2. Sri Jayanta Debnath
S/o. Sri Suman Debnath, Village - Tepania, P.S. - R.K.
Pur, Udaipur.

3. Sri Ranjit Debnath
S/o. Late Surendra Debnath, Village - Tepania, P.S. -
R.K. Pur, Udaipur.

4. Smt. Shikha Rani Saha (Sarkar)
W/o. Sri Dashu Sarkar, VIllage - Dhajanagar, P.S. -
R.K. Pur, Udaipur. District - Gomati Tripura.

5. Smt. Anamika Chakraborty (Bhowmik)
W/o. Sri Biswajit Bhowmik, Village - Gokulpur, P.S. -
R.K. Pur, Udaipur, District - Gomati Tripura.

6. Sri Dilip Debnath
S/o. Late Haricharan Debnath, Village - Tepania, P.S.
- R.K. Pur, Udaipur, District - Gomati Tripura.

7. Sri Sabyasachi Chakraborty
S/o. Sri Samarendra Chakraborty, Village - Tepania,
P.S. - R.K. Pur, Udaipur, District - Gomati Tripura.
                           Page 2 of 13




8. Sri Ajoy Chakraborty
S/o. Late Tushar Kanti Chakraborty, Village -
Dhajanagar, P.S. - R.K. Pur, Udaipur, District - Gomati
Tripura.

9. Smt. Rinku Sarkar (Saha)
W/ o. Sri Lokesh Saha, of Durlab Narayan, P.S. -
Sonamura, District - Shipahijala.

10. LRs of Sushila Sundari Devi @ Sushila
Sundari Debnath, W/o. Late Chandra Kr. Debnath

 10(a).Sri Swapan Debnath
son of Late Chandra Kr. Debnath, Village - Tepania
(Madhyapara, P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(b)(i) Smt. Lata Debnath
W/o of Late Dulal Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(b)(ii) Smt. Mita Debnath
D/o of Late Dulal Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(b)(iii) Smt. Tita Debnath
D/o of Late Dulal Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(b)(iv) Smt. Dipti Acharjee
W/o of Late Jhutan Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(b)(v) Ms Dristi Debnath
D/o of Late Jhutan Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
                           Page 3 of 13



Gomati Tripura.

10(c). Sri Hiran Debnath
son of Late Chandra Kr. Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

 LRs of Lalit Mohan Debnath,
S/o Late Chandra Kr. Debnath

10(d)(i).Smt. Renubala Debnath
W/o. Late Lalit Mohan Debnath, Village - Tepania
(Madhyapara),P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(d)(ii). Sri Pintu Debnath
son of Late Lalit Mohan Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.


10(d)(iii). Sri Jhantu Debnath
son of Late Lalit Mohan Debnath, Village - Tepania
(Madhyapara), P.S. - R.K. Pur, Udaipur, District -
Gomati Tripura.

10(e). Smt. Marani Debnath
D/o.- Late Chandra Kr. Debnath, W/o. Sri Manu
Debnath, Village - Tepania (Pal Para), P.S. - R.K. Pur,
Udaipur, District - Gomati Tripura.

10(f). Smt. Priyabala Debnath
D/o. - Late Chandra Kr. Debnath, W/o. - Late
Nagendra Debnath, Village - Tepania (Madhyapara),
P.S. - R.K. Pur, Udaipur, District - Gomati Tripura.

                         -----Plaintiff -Respondents

1(a). Sri Prangopal Paul of Jatrapur, Sonamura, District - Sepahijala.

1(b). Nanigopal Paul (Now deceased)

Represented by Legal Representatives

1(b)(i). Smt. Usha Rani Paul W/o. - Late Nanigopal Paul, C/o. - Sri Sankar Paul, of Jatrapur, Sonamura, District - Sepahijala.

1(b)(ii). Sri Sankar Paul S/o. Late Nanigopal Paul, of Jatrapur, Sonamura, District - Sepahijala.

1(b)(iii). Smt. Kanchan Paul W/o. Khudiram Paul, Resident of Kalyani (Dhaleswar), P.S. - East Agartala, District - West Tripura.

1(b)(iv). Smt. Chandana Paul (Rudrapaul) W/o.- Sri Dinesh Rudra Paul, Resident of Khayerpur (Near Chodda Devta Bari), P.S. -Ranirbazar, Jirania, District - West Tripura.

1(c).Sri Ratneswar Paul (Now deceased)

Represented by Legal Representatives

1(c)(i). Sri Bimal Paul S/o. Late Ratneswar Paul, Village and P.O. - Tepania Colony, Nearby Tepania Gram Panchayet, P.O. - Tepania, P.S. - R.K. Pur, Udaipur, District - Gomati, Tripura.

1(c)(ii). Smt. Sukla Paul (Das) D/o. Late Ratneswar Paul, W/o. Sri Babul Ch. Das, Village and P.O. - Tepania Colony, Nearby Tepania Gram Panchayet, P.O. - Tepania, P.S. - R.K. Pur, Udaipur, District - Gomati, Tripura.

1(c)(iii). Smt. Soma Paul (Dey) D/o. - Late Ratneswar Paul, W/o. - Sri Dilip Kr. Dey, Resident of Village - Thakchar, P.S. - Birganj, P.O. - Mohamilan, Amarpur, District - Gomati Tripura.

1(d). Sri Dilip Paul son of Late Hemanta Kr. Paul, Madhyapara (Dokan Chowmani), Tepania (Botha Tilla), P.S. - R.K. Pur, Udaipur, District - Gomati Tripura.

1(e). Smt. Bachulywa Paul W/o. Sri Rohidas Paul, Village - Tepania (Botha Tilla), P.S. - R.K. Pur, Udaipur, District - Gomati Tripura.

LRs of Khetra Mohan Debnath, S/o. Late Dwarika Charan Debnath

2(a). Smt. Radharani Debnath W/o. - Late Khetra Mohan Debnath, of Amarpur Town, P.S. - Birganj, Amarpur, District - Gomati Tripura.

2(b). Sri Suresh Debnath S/o. - Late Khetra Mohan Debnath, of Amarpur Town, P.S. - Birganj, Amarpur, District - Gomati, Tripura.

LRs of Surendra Kumar Debnath, S/o. Late Krishna Dayal Debnath

3(a). Smt. Basana Bala Debnath W/o. Late Surendra Kumar Debnath, of Gokulur, P.S. - R.K. Pur, Udaipur, District - Gomati, Tripura.

3(b). Sri Gouranga Ch. Debnath S/o. Late Surendra Kumar Debnath, of Gokulpur, P.S.- R.K. Pur, Udaipur, District - Gomati, Tripura.

3(c). Smt. Shefali Debnath D/o. Late Surendra Kumar Debnath, W/o. - Sri Swapan Debnath, Resident of village - Khupilong, P.S.

- R.K. Pur, Udaipur, District - Gomati, Tripura.

3(d). Smt. Milan Debnath (Banik) D/o. - Late Surendra Kr. Debnath, W/o. Sri Narayan Banik, of Village - Dhajanagar, P.S. - R.K. Pur,

Udaipur.

3(e). Smt. Dipali Debnath D/o. - Late Surendra Kumar Debnath, W/o. - Sri Jagabandhu Debnath, Village - Gakulpur (School Tilla), P.S.- R.K. Pur, Udaipur, District - Gomati Tripura.

3(f). Smt. Jhulan Debnath D/o. Late Surendra Kr. Debnath, W/o. Sri Gouranga Debnath, Village - Tepania (Behind District Hospital), P.S. - R.K. Pur, Udaipur, District - Gomati, Tripura.

LRs of Manoranjan Debnath, S/o. Late Umacharan Debnath

4. Smt. Jiban Debnath D/o. Late Monoranjan Debnath, W/o. Sri Naresh Debnath, Uttar Anandanagar, Shyam Prasad Colony, P.S. - Amtali, Agartala, District - West Tripura.

----Defendant-Respondents

5. Sri Gopal Debnath S/o. Late Swarup Chandra Debnath, Village - Tepania, P.S. - R.K. Pur, District - Gomati, Tripura.

                                    -----Proforma-Respondent



For Appellant (s)            : Mr. SM Chakraborty, Sr. Advocate
                               Mr. S Bhattacharjee, Advocate

For Respondent(s)            : None

Whether fit for reporting    : NO

HON'BLE THE JUSTICE MR. S. TALAPATRA

Judgment & Order (Oral)

22.06.2021

Heard Mr. SM Chakraborty, learned senior counsel

assisted by Mr. S Bhattacharjee, learned counsel appearing

for the appellant.

2. This is an appeal under Section 100 of the CPC

from the judgment dated 03.01.2019 delivered in Title Appeal

No. 17/2017 by reversing the judgment dated 20.06.2017 as

delivered in Title Suit(Partition) No.09/2015 by the Civil

Judge, Sr. Div., Gomati, Tripura.

3. The appellant herein is the defendant No.5 who

has admittedly not inherited the land but whatever right that

has devolved to him is by way of sale from one of the co-

sharers of the suit land. The other co-sharers of the land

including the plaintiffs did not challenge the impugned

judgment. Only the defendant No.5 has challenged the said

judgment.

4. The defendant No.5, by filing the written

statement, has contended that by dint of the sale deed No.1-

1356 dated 10.04.1985 he purchased .90 acres out of the

suit land. That apart, he has stated that he has been

possessing some extra amount of land from 10.04.1985, part

and parcel of the suit land when he came into possession of

the purchased land, adversely by denying the right, title and

interest of the plaintiffs and the other co-sharers.

5. For purpose of reference what the defendant No.5,

the appellant herein, has stated in para 19(c) which is

relevant in the context and for that reason, the same is

reproduced below:

"C. Similarly the answering defendants started possessing the entire land of plot No.1571 measuring 1.32 acres which is Lunga Class of land on the same date i.e. 10.04.1985 and surrounded the same by bamboo fencing. Thereafter he constructed 2(two) buildings for factory shed on the said land and planted large number of Segun Trees (Teak) and other fruit bearing trees like jackfruit, Betel nut etc. and continuously utilizing the said land in assertion of his right, title, interest and possession over the same denying the right, title, interest and possession of the plaintiffs and other defendants openly to the knowledge of all concerned and adverse to the interest of all and others acquired adverse title over the same by prescription of law on 10.04.1997 and the plaintiffs and other defendants have lost all right, title, interest and possession over the said land as per law and the said land also can not be a subject matter of partition in the present suit. The another lunga class of land bearing plot No.1569/4509 measuring 1.11 acres of land was also brought under the possession of the answering defendant on the same date i.e. on 10.04.1985 before the eyes of all concerned including the plaintiffs and other defendants and started continuing the possession over the said plot of land by exercising all acts of possession denying the right, title, interest and possession of the plaintiffs and the other defendants."

6. The court of the Civil Judge, Senior Division,

Gomati, Tripura by its judgment dismissed the suit for

partition holding that from recital of the said sale deed, it

appears clearly that the co-sharers had partitioned the suit

land by mutual agreement and they have mutually

segregated their respective shares in the said land and have

been possessing those lands. Thus, according to the Civil

Judge, the transfer which has taken place with specific

boundaries in favour of the defendant No.5 cannot be

questioned. On the basis of the said finding, the partition suit

was dismissed.

7. Being dissatisfied with the said judgment dated

20.06.2017, the plaintiff carried out the appeal under Section

96 of the CPC in the court of the District Judge, Gomati,

judicial district, Udaipur being Title Appeal No. 17 of 2017.

8. The said appeal was allowed by the judgment

dated 03.01.2019 reversing the said judgment of the Civil

Judge. The first appellate court having re-visited the entire

evidence both the oral and documentary, has observed, inter

alia, as under:

"Here I find that the learned trial court has rightly held that so far as the question of adverse possession is concerned, it is required to be proved strictly to defeat the tile of the true owner. But the defendant No.5 failed to produced any documentary evidence to prove his adverse possession over plot No. 1970, 1571, 1569/4509 are revenue paying land but defendant No.5 failed to adduce any revenue receipt showing payment of revenue as owner of the land by adverse possession. Exbt.5 Khatian No.503 further clearly records the plaintiffs and other defendants as the owners of plot No.1970, 1571, 1569/4509 and there is no trace of defendant No.5 as an adverse

possessor. Rather one Gopal Debnath is shown as permissive possessor against plot no. 1571 measuring 1.32 acre.

In the above view of the matter I find that the learned trial court has rightly held that the defendant No.5 has failed to prove his tile by adverse possession over the plot of 1970, 1571, 1569/4509 of Khatian No.503."

9. It may be noted at this juncture that the

defendant No.5 did not prefer any appeal against the said

finding under Section 96 of the CPC. As such, this court

specifically holds that he had acceded to the said finding and

now, he cannot be allowed to the raise any ground against

the judgment of the Civil Judge in the second appeal.

10. That apart, the First Appellate Court has observed

that Sri Manilal Sarkar, the vendor of the defendant No.5

purchased .90 acre of land, within the suit land in the year

1979 from one Sushila Sundari Devi being the owner of

119/558th share by the sale deeds No.305 and 307 of 1979.

That signifies that there had been no partition among Sushila

and her co-sharers. The share purchased by Manilal Sarkar

from her, eventually, was purchased by the defendant No.5.

In absence of lawful partition, the suit land remained the joint

property. The defendant No. 5 had stepped into the shoes of

the original co-sharer.

11. Having referred to a decision in Jai Singh and

Ors. Vs. Gurmej Singh reported in (2009) 15 SCC 747

where the apex court has held that when a co-sharer sells his

share in the joint holding or any portion thereof and puts the

vendee in the possession of the land, what he transfers is his

right as a co-sharer in the said land and the right to remain in

its exclusive possession till the joint holding is partitioned

amongst all co-sharers. Sale of portion of the land, out of the

joint holding by one of the co-sharers, is nothing but sale of

share, out of the joint holding. Having observed thus, the

judgment of the Civil Judge has been reversed. This

observation is in tune with the provision of Section 44 of the

Transfer of Properties Act, 1882.

12. Thereafter, the First Appellate Court has passed

the preliminary decree of partition in respect of the suit land

by mentioning the specific shares of each of the co-sharers:

"Plaintiff Nos. 1 to 5 jointly to the extent of 62/558th share And Plaintiff Nos. 6, 7, 8, 9 jointly to the extent of 62/558th share And Plaintiff Nos. 10 groups jointly to the extent of 29/558th share And Defendant No.1 groups jointly to the extent of 214/558th share And Defendant No.2 groups jointly to the extent of 13/558th share And

Defendant No.3 groups jointly to the extent of 13/558th share And Defendant No.4 alone to the extent of 75/558th share And Defendant No.5 alone to the extent of 90/558th share"

13. The said judgment is under challenge by the

defendant No.5 in this appeal. Mr. SM Chakraborty, learned

senior counsel has strenuously argued before this court that

apart from the purchased land, a huge amount of land within

the suit land as described before was under adverse

possession of the defendant No.5.

14. As already observed by this court that the

defendant No.5 did not challenge the finding of the Civil

Judge that the defendant No.5 has failed to prove his adverse

possession, this court will not allow him to raise the question

in the second appeal against the concurrent finding of fact

relating to adverse possession.

15. That apart, after scrutiny, this court finds that

there is no evidence of hostile possession. The day that has

been shown as the day of hostile assertion is the day of the

purchase of the share measuring .90 acre from one of the co-

sharers, as named before. No prudent person would believe

that the defendant No.5 demonstrated hostility in respect of

his possession.

16. The pleading to that effect is entirely unbelievable.

So far as the nature of the possession, as has been claimed

by the defendant No.5, is concerned, it cannot take place on

the day of entering in the possession on the purchased land.

That apart, the finding of the First Appellate Court that mere

recital in the sale deed by one of the co-sharer unilaterally for

transferring the land cannot be taken as the evidence of

partition, cannot be faulted with.

17. Thus, this court does not find any merit or

substance at all in this appeal, and hence, it stands

dismissed. Draw the decree accordingly.

18. Mr. B Banerjee, learned counsel has appeared for

the defendant without any notice from the court. As such, this

court has not allowed him to participate in the hearing on

admission of the appeal.

JUDGE

satabdi