Tripura High Court
For vs For on 5 October, 2021
Page 1 of 2
HIGH COURT OF TRIPURA
AGARTALA
RSA 22 of 2021
For Appellant(s) : Ms. S. Debgupta, Adv.
For Respondent(s) : None.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
05/10/2021
Heard Ms. S. Debgupta, learned counsel appearing for the appellant.
This is an appeal under Section 100 of the CPC from the judgment dated
31.08.2021 delivered in Title Appeal 25 of 2018 [Annexure-13 to the memorandum
of appeal]. This is a judgment of reversal inasmuch as by the judgment dated
07.07.2018 delivered in Title Suit 36 of 2006, the Civil Judge, Senior Division,
Court No.2, Agartala, West Tripura dismissed the suit on the ground that the claim
of the title is not supported by any title instrument. Even the deed of partition
[Exbt.3] does support such claim. Hence, the said suit has been dismissed by the
judgment dated 07.07.2018.
Being aggrieved thereof, the plaintiff-appellant filed the first appeal being
Title Appeal 25 of 2018. The said appeal has been allowed by the first appellate
Court [in the Court of the Additional District Judge, West Tripura, Agartala, Court
No.5]. The foundation of reversal can primafacie be located in para-16 of the
impugned judgment. For purpose of immediate reference, the said para-16 is
extracted herein below:
"16. That apart, the report of the survey commissioner dated
31.08.2017 was accepted by the Ld. Trial Court by order dated
12.01.2018 on the submission of Ld. Counsel of both sides
without any objection from any side. From the report of
survey commissioner, I find, the survey commissioner
reported that the whole plinth area of L-pattern building and
kitchen consists 3442.28 sq. ft. land and the kitchen is
covering 272.875 sq. ft. land. From the sketch map of Survey
commissioner, I find, land mentioned in plot No.5 of the
sketch map measuring 949 sq. ft. is covered by 3rd schedule of
partition deed. Land mentioned as Plot No.6 measuring 4278
sq. ft. is covered by 5th schedule of partition deed. Thus, from
the report of survey commissioner it appears to me that the
whole land plot No.1 to 5 is covered by plinth area of the L-
pattern building and 3rd schedule land of partition deed.
Moreover, from Ext.3, the partition deed specially from 3 rd
schedule land of partition deed, I find, in the south side
boundary of the land of plaintiffs there is mentioning that
there is land kept for road. Meaning thereby, in the south side
of the land of the plaintiffs there is no land of defendant.
Hence, it cannot be said that the land of plot No.4 and 5 as
mentioned in the report of survey commissioner laying in the
south side of L-pattern building is the land of defendant."
In the plaint, the plaintiffs have himself admitted that his source of title is
the said partition deed and on such premises, he has asserted in the plaint that
the possession of the entire share [vide Exbt.3] was taken over by the plaintiffs in
exclusion of other co-sharers and the defendant took possession of the adjacent
western portion, as stated above, without raising any objection and without
claiming any part of the land falling in the share of the plaintiffs or under their
possession. So the respondent [the appellant herein] is stopped.
This appeal is admitted on the following substantial questions of law :
"While determining the question of title whether the first
appellate Court was right in deciding the title on the basis of
the purported possession travelling beyond the partition deed?"
Issue notice.
Call for records.
Notice is made returnable on 22.11.2021.
The appellant shall take steps for service of notice on the respondents by
registered post with AD within a week from today.
JUDGE
Sabyasachi B
