Sri Rangalal Sutradhar vs Smti. Rina Sukla Das
2021 Latest Caselaw 331 Tri

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                   HIGH COURT OF TRIPURA
                         AGARTALA
                      RSA NO.45 OF 2019
Sri Rangalal Sutradhar,
S/O Sri Girindra Ch. Sutradhar,
Resident of Uttar Chandrapur,
P.O. & P.S. R.K. Pur, Udaipur,
Gomati Tripura.
                                                      -----Appellant(s)
                    Versus
Smti. Rina Sukla Das,
W/O Sri Benu Sukla Das,
Resident of Uttar Chandrapur,
P.S. & P.O. R.K. Pur, Udaipur,
Gomati Tripura.
                                                   -----Respondent(s)

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH

For the Appellant(s) : Mr. Bibek Banerjee, Advocate For the Respondent(s) : None Date of hearing & delivery of judgment & order : 15.03.2021 Whether fit for reporting : No

J U D G M E N T & O R D E R (O R A L)

Heard Mr. Bibek Banerjee, learned counsel

appearing for the appellant, who was the original plaintiff.

None appears for the respondent.

2. Fact of the case, in brief, is that the plaintiff

instituted a suit for declaration of right, title and interest

and also prayed for recovery of the khas possession of a

portion of the suit land described in schedule 'B' of the

plaint.

3. At the time of admission of the present second

appeal, this Court has recorded some observations of the

learned first appellate Court in the manner as follows:

"Moreover, there is no evidence of any survey knowing commissioner to support the story of encroachment of the suit land by the defendant. Had it been so, the matter would have found more clarity and conviction. But the same not being there, the story of forcible occupation of the suit land by the defendant fails to satisfy the conscience of the court so as to reach a positive finding in favour of the plaintiff- respondent."

4. Based on the aforesaid finding, while admitting

the appeal, the following substantial question of law has

been formulated by this Court:

"Whether the finding based on which the reversal has been caused is sustainable, inasmuch as, the dispossession has been proved by the evidence, not of the nature as indicated by the first appellate court?"

5. In course of hearing, Mr. Banerjee appearing for

the appellant submits that the finding recorded by the

learned first appellate Court that in absence of Survey

Commissioner's report it was not possible to identify the

exact occupation of the parties over the suit land is totally

perverse.

6. Mr. Banerjee, learned counsel further submits

that the evidence is galore in respect of the fact that the

defendant, the respondent herein has been occupying some

portion of the 'B' schedule land by constructing kachha

latrine. PWs 2 and 3 have corroborated the evidence of

PW1, i.e. the plaintiff in support of his claim that the

defendant has been occupying the 'B' schedule land. The

defendant also erected bamboo fencing occupying the

entire 'B' schedule land as a mark of possession over the 'B'

schedule land. So, it is the clear case of the plaintiff that

the defendant has illegally encroached the 'B' schedule

land, the title of which lies upon the plaintiff.

7. The cause of action of the suit arose on

20.07.2017 when the defendant had encroached the 'B'

schedule land, dispossessing the plaintiff from the said suit

property.

8. The learned trial Court after considering the

pleadings & evidence and materials on record decreed the

suit in favour of the plaintiff.

9. Being aggrieved, the defendant, respondent

herein has preferred the first appeal before the Court of

learned District Judge. The learned District Judge set aside

the judgment and decree passed by the trial court holding

that there is no evidence of any Survey Commissioner to

support the story of encroachment of the suit land by the

defendant. Further, it was observed that "Had it been so,

the matter would have found more clarity and conviction.

But the same not being there, the story of forcible

occupation of the suit land by the defendant fails to satisfy

the conscience of the court so as to reach a positive finding

in favour of the plaintiff-respondent."

10. This is settled proposition of law that a civil suit

can be decided on the basis of the pleadings exchanged by

the parties and the material documents as well as the oral

testimony in support of the respective pleadings and

further, by applying the principle of preponderance of

probability.

11. After perusal of the record, it transpires that the

defendant had never submitted any petition for

appointment of Survey Commissioner nor there is any plea

taken by the defendant for any defects in the decree for

non-appointment of Survey Commissioner.

12. The learned trial Court came to a definite finding

that on the basis of the title deed and the oral testimony of

the witnesses it becomes apparent that the plaintiff is the

owner of the entire land of schedule 'A'; and schedule 'B'

land attracts 'A' schedule land. The reasons as assigned by

the learned trial Judge is not at all sustainable because

non-appointment of Survey Commissioner in absence of

any such plea raised by any party of the suit, cannot nullify

a decree declaring right, title and interest and recovery of

possession of the suit land, which is based on the evidence

and materials brought on record. Further, if such evidence

is enough to identify the suit land that appointment of

survey commissioner is not called for.

13. Having held so, in my opinion, the reversal

finding on the basis of the fact that the land could not be

identified due to absence of Survey Commissioner's report

is not sustainable, and thus, the judgment and decree

dated 17.07.2019 passed by the learned District Judge in

Title Appeal No.09 of 2018 stand set aside. Consequently,

the judgment and decree dated 31.07.2018 and

10.08.2018 respectively, passed by the learned Chief

Judicial Magistrate-cum-Civil Judge(Sr. Division), Court

No.2, Gomati, Udaipur in case No. T.S. 29 of 2017, stands

restored.

14. The appeal stands allowed and disposed off in

the above terms.

15. Draw the decree accordingly.

Send down the LCRs after drawing the decree.

JUDGE