Sri Parimal Ghosh vs Sri. Nandalal Ghosh
2021 Latest Caselaw 436 Tri

                  HIGH COURT OF TRIPURA
                         AGARTALA

                           RFA 18/2015


1.Sri Parimal Ghosh
son of Late Prafulla Ghosh.

2.Sri Bimal Ghosh.
son of Late Prafulla Ghosh.

3.Sri Shyamal Ghosh.
son of Late Prafulla Ghosh.

4.Smti Swapna Rani Ghosh,
W/O. Sri Parimal Ghosh. All are resident of Village- Karayiamura,
P.S. R.K. Pur, P.O. R.K. Pur, District- Gomati, Tripura.

                                                 -----Appellant(s)

                              Versus

1.Sri. Nandalal Ghosh,
S/O. Late Sashi Kr. Ghosh.

2.Sri Sanjit Ghosh,
S/o. Sri Nandalal Ghosh. Both are resident of Village-
Karayiamura, P.S. R.K. Pur, P.O. R.K. Pur, District- Gomati,
Tripura.

3.Sri Himangshu Ghosh,
S/o. Late Krishna Ghosh.

4.Sri Nirmal Kanti Ghosh,
S/o. Late Jamini Ghosh. Both are resident of Village-
Karayiamura, P.S. R.K. Pur, P.O. R.K. Pur, District- Gomati,
Tripura.

                                               -----Respondent(s)
                                   Page 2 of 24




For Petitioner(s)             :     Mr. P Chakraborty, Advocate

For Respondent(s)             :     Mr. D Bhattacharya, Advocate

Whether fit for reporting     :     NO
Date of hearing               :     06.01.2021
Date of pronouncement         :     31.03.2021


             HON'BLE MR. JUSTICE S. TALAPATRA
          HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY


                        JUDGMENT & ORDER
Talapatra,J.

This appeal under Section 96 of the CPC arises from

the judgment dated 29.09.2015 delivered in T.S. No.39 of 2013

by the Civil Judge, Sr. Div., Gomati District, Udaipur. The said

suit was instituted for declaration of right, title, interest and

cancellation of sale deed, recovery of possession, perpetual

injunction and mesne profit.

2. The respondent No.1, hereinafter referred to as the

plaintiff No.1, became the owner of the suit land mentioned in

the Schedule "A" of the plaint measuring 1.60 acre by way of

allotment made by the Collector under Section 14 of the TLR &

LR Act. The Plaintiff No.1 had executed a General Power of

Attorney in favour of his son, the plaintiff No.2, vesting authority

upon him to do all acts on his behalf over his properties

[including the suit land]. The plaintiff No.1 started possessing the

suit land in the year 1967 though the allotee Khatian was opened

in his name in the year 1975. Taking advantage of his absence

from the suit land, his brother Prafulla Kumar Ghosh (now

deceased) recorded his possession over 0.72 acres of land in the

allottee Khatian.

3. The defendant No.6 did the same act over the land

measuring 0.0161 acre. In the year 1993, the plaintiff left the

suit land for Kolkata authorising Sri Priyalal Ghosh to look after

the land. From the year 2006, being advised by Sri Priyalal

Ghosh, the plaintiff No.1 raised Rubber plantation within 0.40

acre of the "A" Schedule land. In that year, Sri Priyalal Ghosh

informed the plaintiff No.1 to appoint any other person to assist

him in looking after the property of the plaintiff No.1. The

plaintiff No.1, having regard to that request, requested his

nephews, the defendants No. 1 to 3 to assist Sri Priyalal Ghosh

and the said defendants suggested the plaintiff No.1 to appoint

the defendant No.5 as his Attorney for looking after the property

and to do all the acts on his behalf and accordingly, the Plaintiff

No.1 appointed the defendant No.5 as his Attorney in respect of

the land measuring 0.80acres within the "A" schedule land after

executing a Registered Deed of Power of Attorney bearing No.IV-

2 dated 05.01.2007.

4. In the year 2012, the plaintiff No.1 returned to the

suit land and appointed his son as his attorney and demanded

the Deed of Power of Attorney from the defendant No.5 but the

defendant No.5 did not return the said Power of Attorney. In the

first week of January 2013, the defendant No.5 disclosed to the

plaintiff No.2 that under tremendous pressure from the husband

and her husband‟s brothers, i.e. the defendants No. 1 to 3 she

was compelled to execute three sale deeds in their favour

without payment of consideration amount.

5. As stated by the plaintiff, for executing such sale

deeds no prior sanction of the plaintiff No.1 was taken. The

plaintiff also pleaded that though it was mentioned in the sale

deed that a total sum of Rs.10,00,000/- was given for purchasing

0.80 acre of land, but such consideration amount was actually

not paid and the defendants No.1 to 3 had no source of income

for earning such huge amount and so, the plaintiff No.1 prayed

to declare those Sale Deeds vide No. 1-1932, 1-1933 and 1-1934

dated 26.09.2012 as void. The plaintiff No.1 cancelled the Deed

of Power of Attorney dated 05.01.2007 and on 01.08.2013, the

fact of cancellation was informed to the defendant No.5.

6. The plaintiff No.1 has also contended that the

defendants No. 1 to 3 dispossessed the plaintiff No.1 from the

land described in Schedule "B(i) to "B(iii)" respectively on

13.06.2013 which are the part and parcel of the "A" Schedule

land and on the same date, the defendant No.6 also dispossessed

the plaintiff No.1 from the schedule "B(iv)" land of the plaint.

However, the plaintiffs are in exclusive possession of "C"

schedule land, but there is threat from the defendants No. 1 to 3

and the defendant No.6 that they shall occupy the land forcibly.

Thus, a prayer for granting injunction has been made against the

defendants. The plaintiff No.1 used to derive income of

Rs.4,000/- from each piece of land mentioned in the schedule

B(i), B(ii), B(iii) and B(iv) and so the plaintiff No.1 is entitled to

get mesne profit from the defendants till the date of

dispossession till the date of recovery. Hence, the suit was

instituted.

7. The defendants, having received the summon, filed

the written statement and denied the facts relating to the

transfer of property as alleged to have been made in connivance.

Even the record of rights was opened on the basis of those sale

deeds, but no notice was received by the plaintiff No.1 as the

owner. Thus, it appeared to the plaintiff No.1 that the

„Settlement staffs‟ were hand in gloves.

8. It has been contended in the written statement that

the plaintiff No.1 with a view to sell out his share within the suit

land measuring 0.80 acres took consideration amount of

Rs.10,00,000/- from the defendants No. 1 to 3 and executed a

deed of power of attorney in favour of the wife of the defendant

No.1, i.e. the defendant No.5, to execute deeds of sale in his

absence whenever it is required by the defendants. Accordingly,

deeds of sale on behalf of the plaintiff No.1 were registered in

favour of the defendants No. 1 to 3.

9. It has been also contended that the defendants were

always in possession of the suit land and to get the entry in the

ROR corrected, which entry till then stood in the name of the

plaintiff No.1, the defendants requested the plaintiff No.1 to

execute the deed of sale in favour of the defendants No. 1 to 3.

But the plaintiff had demanded Rs.1,50,000/- from the

defendants for transferring the share in their name. However, the

defendants handed over Rs.50,000/- on the day of execution of

the unregistered agreement for sale with a condition that the rest

amount of Rs.1,00,000/- would be handed over to the Plaintiff

No.1 after execution of the deed of sale. But in spite of repeated

requests by the defendants, the plaintiff No.1 denied to execute

any deed of sale in favour of the defendants No. 1 to 3.

10. Having examined the rival pleadings the following

issues were framed:

(i) Whether the suit is maintainable in its present from and nature?

(ii) Is the plaintiff No.1 eneitlted to get his right, title and interest over the "A" Schedule land?

(iii) Are the plaintiffs entitled to get a declaration over the Sale Deeds bearing No. 1-1932, 101933, 1-934 dated 26.09.2012 executed by the defendant No.5 on behalf of the plaintiff No.1 in favour of the defendant No. 1 to 3 are invalid, void and inoperative?

(iv) Are the plaintiffs entitled to get a decree to recover possession of the "B(i)", "B(ii)", "B(iii)" and "B(iv)" schedules of the plaint by evicting the defendants No. 1 to 4 there from?

(v) Are the plaintiffs entitled to get a decree of perpetual injunction restraining the defendants No. 1 to 4 from entering into the "C" schedule land?

(vi) Are the plaintiffs entitled to get mesne profit from the date of their dispossession till recovery of possession of the land described in the Schedule "B" and the same is to be paid by the

defendants No. 1 to 4 proportionately to the plaintiff No.1?

(vii) Whether the plaintiffs are entitled to get any other relief/reliefs?

11. The plaintiff in order to prove his case admitted

documentary evidence and adduced and examined other

witnesses. The defendants adduced four witnesses and also

admitted some documents.

12. After the evidence was recorded, the civil Judge,

having appreciated the evidence, as recorded at the instance of

the parties, has observed that unlawful possession of the land

mentioned in schedule "B(iv)" of the plaint and in some portions

of the plaint it is mentioned that the defendant No.6 namely, Sri.

Nirmal Kanti Ghosh is in the unlawful possession of the said

property. The defendants have also in the written statement

stated that the defendant No.4 is in occupation of the said

scheduled property but in the last part of the written statement,

it has been admitted by the defendants that the defendant No.6

is in possession of the said property and the defendant No.4 has

been unnecessarily added as the defendant in the suit. Thus, the

issue No.1 was decided in favour of the plaintiff.

13. While deciding issue No.iii, the civil judge has returned

the finding having regard to the sale deeds bearing No. 1-1931,

1-1933 and 1-1934 dated 06.09.2012 as executed by the

defendant No.5 for and behalf of the plaintiff No.1. The civil

judge has observed that (1) the defendant No.5 sold out the land

without prior sanction of the plaintiff No.1; and (2) the defendant

No.5 sold out the said land without any consideration money to

the defendants No.1 to 3.

14. Learned counsel for the defendants has submitted that

the power of attorney was executed by the plaintiff No. 1, so that

the defendant No.5 can execute the sale deeds in favour of the

defendants No.1 to 3 in absence of the plaintiff No.1 as per the

prior oral agreement which was entered into, prior to execution

of the power of attorney dated 05.01.2007. The sum of Rs.

10,00,000/- was paid as consideration money to the plaintiff

No.1 by the defendants No. 1 to 3.

15. It appeared to the civil judge, on perusal of the power

of attorney dated 05.01.2007 (Exbt.2) that plaintiff No.1 had

authorised the defendant No.5 to sell out his property to anyone

or any institution after bargaining the price and she was

authorized to transfer the land to anyone by completing the

required process.

16. Nowhere in the power of attorney it has been

mentioned that for transferring the property of the plaintiff No.1,

prior consent was to be taken by the defendant No.5. So the

argument of prior consent as made by the learned counsel for

the plaintiff has not been considered tenable by the civil judge.

17. From perusal of the records, it surfaces that the

plaintiff No.1 executed the power of attorney in favour of the

defendant No.5. Simultaneously, it can be located that said

power of attorney was executed at the suggestion of the

nephews of the plaintiff No.1. But the plaintiff No.1 has flatly

denied the payment of consideration amounting to

Rs.10,00,000/- to him by the defendants No. 1 to 3.

18. The defendants did not submit any money receipt in

respect of payment of such consideration amount of

Rs.10,00,000/-. The defendants No. 1 to 3 have submitted that

since there existed a cordial relation between the defendants No.

1 to 3 and the plaintiff No.1, no money receipt was taken. But

during cross-examination of DW1, it has been admitted that on

the date of execution of the power of attorney, one unregistered

sale of agreement was executed relating to the 'shares of the

defendants No. 1 to 3' by operation of which the plaintiff No.1

was to execute sale deeds in favour of those defendants.

19. The civil judge had recorded the following finding on

further appreciation of the evidence:

"Generally, when an amount, like, Rs.10,00,000/- is handed over being a consideration amount of an Agreement a person having common prudence shall take a money receipt of the same. But surprisingly though the defendants No. 1 to 3 took money receipt for payment of Rs. 50,000/- from the plaintiff No.1 did not take money receipt for payment of Rs.10,00,000/-. So, it is very difficult to believe that prior to execution of Sale Deeds consideration amount was paid."

[Emphasis added]

20. The civil judge has taken note of the admission made

by DW1 (Shri Shyamal ghosh), DW2(Smt. Swapna Rani Ghosh)

and DW4 (Shri Samir Ranjan Saha) that on the day of execution

and registration of the sale deeds, no consideration amount was

paid. Even the attorney namely, Smt. Swapna Rani Ghosh

admitted that she took no consideration amount from Sri

Shyamal Ghosh, Shri Bimal Ghosh or Shri Parimal Ghosh, i.e.

defendants No. 1, 2 and 3 in the suit. Thus, the civil judge has

observed that it is highly improbable that the sale deeds were

executed on payment of consideration amount and so the

contention of the defendants that they paid the consideration

amount to the plaintiff No. 1 cannot be relied on.

21. Having regard to Section 25 of the Indian Contract Act

the civil judge has observed that since no consideration was paid,

transfer of the land, as stated above, is void. The defendants No.

1, 2 and 3 even though have claimed that they have paid

consideration amount of Rs.10,00,000/- to the plaintiff No.1, but

they have failed to prove such payment in the transaction. As a

result, the sale deeds are void and inoperative for all purposes.

22. Even though the defendant No.5, Smt. Swapna Rani

Ghosh (DW2) had authority to sell out those immovable

properties, but such sale without consideration money has not

only affected the interest of the plaintiff No. 1 adversely but also

made the transaction void, even though the transaction was

carried out by the registered sale deeds, as noted before.

23. One of the important observations made by the civil

judge reads as follows:

"Moreover, no date, time and place of such payment of consideration amount is mentioned by the defendants. There is no explanation from the side of the defendants why the deeds of sale were not executed on the date of

payment of alleged consideration amount and why those were executed after five years of execution of the power of attorney deed. Thus, again appreciation goes in favour of the plaintiffs in this respect."

24. Finally, the civil judge has held that it has been

proved by the plaintiffs that no consideration amount was paid in

refund to the alleged transfer of property made by the attorney

of the plaintiff No.1. Under these circumstances, the transfers of

lands being made without consideration by the deeds of sale

being 1-1932, 1-1933 and 1-1934 dated 26.09.2015 are liable to

the cancelled and if those instruments are left outstanding, those

may cause serious injuries to the plaintiffs in future. Hence,

those are directed to be shown as cancelled in the book by the

District Sub-Registrar.

25. On the aspect of mutation of record of rights by virtue

of those sale deeds, the civil judge while deciding the issue No.2,

having referred to the schedule of the plaint has observed that

schedule A land appertains to RS Khatian No. 363 comprised RS

Plot No.1517, RS Plot No. 1519, RS Plot No.1520 and RS Plot

No.1521 and within the plots there situate land measuring 1.60

acres. Khatian No. 363 (Exbt.-1) shows that the said khatian is

the record of right of the A scheduled land. As per the khatian,

the suit land was admitted in the name of Shri Nandalal Ghosh,

i.e. the plaintiff No. 1 and still he is the owner of the land being

the allottee. The contention of the defendants that actually the

land mentioned in the schedule A land was under the occupation

of the plaintiff No.1 and his brother Prafulla Kumar Ghosh (now

deceased) who is the predecessors in interest of the defendants

No. 1, 2 and 3 is not borne in any record. But the plaintiff No. 1

being an influential person, had in connivance with the

settlement staff got one allotment khatian created in his favour.

26. The record of rights has a presumptive value. Thus

there cannot be any difficulty to hold that the entire A schedule

land was allotted in favour of the plaintiff No. 1. It has been

observed by the civil judge that the plaintiff No. 1 is the title

holder of the land.

27. The issue No. iv framed on the aspect of unlawful

possession as stated by the plaintiff. Schedules B(i) to schedule

B(iv), according to the plaintiffs, were under wrongful possession

of the defendants No. 1, 2, 3 and 6. According to the defendants

No. 1, 2 and 3, their father namely, Prafulla Kumar Ghosh (now

deceased) was in possession of the suit property appertaining to

RS plot No. 1517 measuring 0.72 acres. After his death, the

defendants No. 1 to 3 and defendant No. 5 being his wife, are in

occupation of the land.

28. Records related to schedule B(i), Schedule B(ii) and

Schedule B(iii) land have demonstrated that the defendants No.

1 to 3 were in possession of the total land measuring 0.74 acre.

A small piece of land measuring 0.02 acre is in access of the land

mentioned in the Khatian. There is no doubt or dispute that the

entire suit land described in the Schedule A was allotted to the

plaintiff No. 1 in the year 1975 and hence, the plaintiff No. 1 had

no right to transfer the said land without prior permission of the

Collector. Hence, the defendants No. 1 to 3 and defendant No. 6

are liable to be evicted for their respective occupations over the

suit land.

29. The civil judge has also granted perpetual injunction

against the defendants in respect of the C schedule land which is

part and parcel of A schedule land as that C schedule land is still

under occupation of the plaintiffs. Thus, the defendants have

been refrained from disturbing the possession of the plaintiffs.

30. The civil judge has referred a decision of this Court in

Haradhan Choudhury and Ors. Vs. Barada Kumar Sen and

Ors reported in (2015) 1 TLR 525 as regards the mesne profit.

Such relief can only be granted on the basis of the cogent

evidence laid before the court. Mere bald statement of the

plaintiff cannot entitle ipse dixit the plaintiff mesne profit, unless

such claim is supported by reliable evidence.

31. Finally, the civil judge has declared that:

(a) The plaintiff No. 1 has right, title and interest over the suit land mentioned in the Schedule A of the plaint appertaining to R.S. Khatian No. 363 having R.S. Plot No. 1517, land measuring 0.72 acres, R.S. Plot No. 1519 land measuring 0.20 acres, R.S.Plot No. 1520 land measuring 0.52 acres and R.S. Plot No. 1521 land measuring 0.16 acres, in total, the land measuring 1.60 acres under Tehsil Bagma, Mouja Kariayamura being an allottee;

(b) The registered deeds of sale bearing Nos. 1-1932, 1- 1933 and 1-1934 all dated 26.09.2012 executed by the defendant No. 5 on behalf of the plakitniff No. 1in favour of the defendants No. 1 to 3 and registered at Sub-Registry Office, Udaipur, Gomati District is void and in-operative and liable to be cancelled. The defendants No. 1 to 3 shall deliver and cancel the same with the Sub-Registry Office, Udaipur Sub Division, Gomati District.

(c) It has been directed that a copy of the judgment and decree be sent to the office of the sub-registrar, Udaipur,

Gomati District who shall attest note on the copies of the said instruments contained in his book, the fact of their cancellation.

(d) The defendants No. 1 to 3 and the defendant No. 6 shall vacate the suit land mentioned in the Schedule B(i), Schedule B(ii), Schedule B(iii) and Schedule B(iv) respectively, within a period of thirty days from the date of drawing up of decree and shall hand over the vacant possession of the same to the plaintiff No. 1. The said defendants are also perpetually retrained from entering in to the above mentioned scheduled land after vacation of the same.

(e) The defendants No. 1 to 3 and the defendant No.6 are perpetually restrained from entering into the C Schedule land and disturbing the peaceful possession of the plaintiffs therein.

32. Mr. P Chakraborty, learned counsel having appeared

for the defendants No. 1 to 3 and 5, the appellants herein, has

submitted that even the plaintiff No. 1 has not disputed that the

defendant No. 5 was lawfully constituted attorney of the plaintiff

No.1 and the said attorney was authorised to sell the property to

any person or any organisation.

33. The defendant No. 5 sold the property to the

defendants No. 1 to 3, three sons of Prafulla Ghosh when a sum

of Rs.10,00,000/- was paid to the plaintiff No. 1 as the

consideration. In support thereof, Mr. Chakraborty, learned

counsel has referred to the evidence of DW1 where he had

volunteered that transaction of consideration amount was made

prior to the execution of those deeds of sale between Shri

Nandalal Ghosh [the plaintiff No.1] and the defendants No. 1 to

3. He has also referred to the statement of DW2 (Smt. Swapna

Rani Ghosh) that defendants No. 1 to 3 were in possession of the

suit land prior to the execution of the sale deeds and they

continued in the said possession. The reference has been made

by Mr. Chakraborty, learned counsel appearing for the appellants

that in the year 2000 while the plaintiff No.1 came to Kariyamura

to visit his niece and other relatives then the defendants No. 1 to

3 requested their uncle [the plaintiff No.1]for amicable

settlement of their possessed land so that their possessed land

be recorded in their name and in reply their uncle, the plaintiff

No. 1 told them not to be worried in the matter stating further

that he would arrange settlement while he would come to Tripura

next time. In the year 2007, while the plaintiff No.1 again visited

Kariyamura, a family settlement in respect of land of defendants

No. 1 to 3 was struck in presence of the local people. It was

settled that plaintiff will get 0.80 acre out of their entire

possessed land under Khatian No. 363, plots No. 1517 and 1520.

It was also agreed by the plaintiff that the land of the plaintiff

No.1 measuring 0.80 acre under khatian No. 363 comprised of

the plot No. 1517 and 1520 will be sold to the defendants No. 1

to 3 for a consideration money of Rs.10,00,000/- and the plaintiff

will execute a registered sale deed in favour of the defendants

No. 1 to 3.

34. According to the said family settlement, as Mr.

Chakraborty learned counsel for the appellant has pointed out

that the entire amount of Rs.10,00,000/- was paid to the plaintiff

No.1. According to DW2, she was appointed as the attorney by

the plaintiff No.1. There had been further family settlement

between the defendants No. 1 to 3 that they will get 0.94 acre of

the land from Khatian 363 comprised of plots No. 159 and 1510

within land measuring 0.20 acre, 0.44 acre and 0.44 from the

Khatian 119, comprised of CS plot No. 677 and from the Khatian

577 comprised of plot No. 1510, measuring 0.05 acre and 0.25

acre respectively. Therefore, it has been contended by Mr.

Chakraborty that the possession cannot also be stated to be

illegal possession. For obvious reason, Mr. Chakraborty has not

stated that there was claim of title by prescription.

35. Mr. Charkaborty, learned counsel appearing for the

appellant has further submitted that inference as drawn by the

civil judge in respect of payment of consideration money is

grossly unsustainable in view of the fact that those defendants

No. 1 and 2 have really proved that such payment was made.

Thus, Section 25 of the Indian Contract Act will have no

application in the facts as emerged. It has been dis-proved that

the claim of payment of consideration money is a hoax.

36. Mr. Chakraborty, learned counsel has relied on a

decision of the Gauhati High Court in Rakhi Debbarma Vs.

Sanghamitra Roy & Ors. reported in (2018) 1 TLR 213 where

this court had occasion to observe that it is settled principle of

law that ownership and the title in a property pass on to the

transferee under the terms and conditions of the deed of

conveyance Section 8 of the Transfer of Property Act declares

that on a transfer of property all the interests which the

transferor has or he was having at that time, capable of passing

to, pass on such transfer unless a different intention is expressed

or necessarily implied. A combined reading of section 8 and

section 54 of the Transfer of Property Act suggests that through

execution and registration of a sale deed, the ownership and all

interest in property shall pass to the transferee and that would

be on terms and conditions embodied in the deed indicating the

intention of the parties.

37. It has been further observed in Rakhi Debbarma

(supra) as under:

"31. Chapter-II of Indian Contract Act, 1872, deals with contracts which are voidable contracts and void agreements and all such agreements and contracts that fulfil the requirement of section 10 and entered with free consent of the parties or competent to contract for a lawful consideration with lawful object under any law relating to the registration is required to be complied with and considered to be a legally executable contract under the Act."

38. From the other side, Mr. D Bhattcharjee, learned

counsel, in order to repel the submission advanced by Mr.

Chakraborty, learned counsel, has stated that the incidence of

payment of consideration money to the extent of Rs.10,00,000/-

to the defendants No. 1 to 3 has not at all been proved. No

prudent person shall believe such hoax. According to Mr.

Bhattacharjee, learned counsel there is no legal evidence to

prove the claim of payment of consideration money for

transferring the land in the schedules B(i), B(ii), B(iii) and B(iv).

39. The ultimate question that arises in this appeal is

whether or not the transaction as reflected in sale deeds bearing

No. 1-1932, 1-1933 and 1-1934 dated 06.09.2012 are all void

and inoperative. Mr. Bhattacharjee, learned counsel has further

submitted that the civil judge has correctly observed that when

for granting advance (the purported earnest money) of

Rs.50,000/- for entering into an unregistered agreement, the

defendants No. 1, 2 and 3 had realised or obtained a receipt from

the plaintiff No. 1, their claim for not obtaining the receipt of

payment of consideration amount for cordial relation cannot be

believed. It is therefore correctly held that it is not probable that

payment of Rs.10,00,000/- was made to the plaintiff No.1 as

consideration amount.

40. It is also not believable that even after payment of

Rs.10,00,000/- for purpose of transaction, the defendants No. 1,

2 and 3 had not taken a receipt. There was no payment at all.

That is the reason why the witnesses adduced by the defendants

No. 1, 2, 3 and 5 did not state the date, time and place and in

whose presence such consideration amount was paid. Hence, the

civil judge has disbelieved the statements of those defendants as

regards the payment of consideration money.

41. Having appreciated the submission made by the

learned counsel for the parties, this court finds that the land as

described in Schedule A could not have been transferred without

prior permission of the District Collector as every allotment is

made by keeping the control over the land. When the Tripura

Land Revenue and Land Reforms Rules, 1980 replaced the

former Tripura Land Revenue and Land Reforms (Allotment of

Land) Rules it became mandatory to obtain the prior permission

from the District Collector for transfer of any part of the allotted

land. But that aspect of the matter has not been asserted by

anyone and that being a statutory requirement, not obliged is the

other reason to believe that the plaintiff No. 1 had any serious

intention to sell the suit land.

42. That apart, the inference drawn by the civil judge

from the analysis of the evidence as recorded in the trial, cannot

be faulted with inasmuch as there is no proof how the defendants

No. 1 to 3 gathered that huge sum of Rs. 10,00,000/- and in

whose presence, the said amount was paid and/or on which date

and time such payment was made. It has been also observed

that when the defendants No. 1 to 3 paid the earnest money to

the extent of Rs.50,000/- to the plaintiff No.1 they had obtained

the receipt. Hence, their plea that for cordial relation, no receipt

was obtained from the plaintiff No. 1 when they paid the

consideration money cannot be acctepted.

43. Hence, there is no merit in this appeal and accordingly

the same stands dismissed.

Draw the decree accordingly. Thereafter, send down

the LCRs.

                   JUDGE                                  JUDGE




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