Md. Siddique Miah And Others vs Md. Tajul Islam And Others
2021 Latest Caselaw 896 Tri

                     HIGH COURT OF TRIPURA
                           AGARTALA
                            RSA 16 of 2021

Md. Siddique Miah and Others

                                                  ..........Appellant(s)

                                Versus

Md. Tajul Islam and Others

                                               ..........Respondent(s)

For Appellant(s) : Mr. R.G. Chakraborty, Adv.

For Respondent(s)       :     None.


             HON'BLE MR. JUSTICE S. TALAPATRA

                                Order

13/09/2021

Heard Mr. R.G. Chakraborty, learned counsel appearing

for the appellant.

2. By means of this appeal, filed under Section 100 of the

CPC, the legality of the judgment dated 19.03.2021 delivered in Title

Appeal No.43 of 2017 has been questioned on the proposed

substantial questions of law as formulated below para-5 of the

memorandum of appeal. Having scrutinized the proposed substantial

questions of law what appears to this court, the following core

questions have been projected as the principal substantial questions

of law :

1) Whether the title can be declared on the basis of record of right [Khatian] when the title deed is the foundation of title according to the pleadings of the plaintiffs?

2) Whether absence of survivorship certificate is fatal for proving the plaintiffs as the decendants or the legal heirs of Abdul Barek Munshi @ Abdul Gani Munshi, the original owner?

The other questions, ancillary to those, noted above, cannot

form any substantial question of law, definition of which has been

developed by precedents independently.

3. The brief facts relevant for appreciating whether any

substantial questions of law is at all involved in this appeal or not

may be introduced at the outset.

4. The respondents herein instituted the title suit being

T.S.58 of 2013 in the Court of the Civil Judge, Senior Division, Court

No.2, West Tripura, Agartala for declaration of title and recovery of

possession of the suit land as described the schedule appended to

the plaint. The suit land appertains to Khatian No.135, plot No.1634

of Mouja-Charipara, West Tripura District measuring 0.12 acre. It has

been asserted by the plaintiffs that on death of Abdul Barek Munshi

@ Abdul Gani Munshi, the plaintiffs have become the absolute owner

and possessor of the suit land. According to the plaintiffs the

defendants [the appellants] were allowed to reside on the suit land

on condition that whenever the original owner would require the suit

land, the defendants would vacate the same. The defendants were

residing on the suit land by constructing dwelling huts. On

06.11.2011 the defendants were requested to vacate the suit land

but since they did not comply with the said demand, the notice dated

05.03.2012 were served on the defendants asking them to vacate

the suit land. The defendants did not vacate the suit land even

thereafter. According to the plaintiffs, when the defendants denied to

vacate the suit land on 06.11.2011, the cause of action arose for

institution of the suit land. The defendants have managed to record

their name in column No.24 of the said Khatian as illegal occupier.

The plaintiffs have categorically asserted that the defendants were

occupying the said land on the basis of the permission granted by the

original owner, their predecessor.

5. The defendants No.1 and 2 [the appellants herein] by

filing their written statement has stated that they did not see the

predecessor of the plaintiffs or the plaintiffs at any point of time and

they had been in possession over the suit land for 37 years

uninterruptedly. According to the defendants, the plaintiffs filed the

suit on conjecture in order to grab the land which has been

purchased by the answering defendants by registered sale deeds

from Rasik Chandra Das and others in the year 1976 and got

mutation over the said land classified as viti (tilla), Bastu (tilla) in

which the answering defendants residing as home-stead. They have

categorically stated in their joint written statement as follows :

"Originally predecessor of the plaintiffs Abdul Barek Munshi sold the land measuring 0.62 acres by registered sale deed no.1-11106 dated 29-12-1970 to the Rasik Chandra Das along with his two brother by specific boundary mentioned in the Sale Deed that in the North-Manindra Ch. Saha, in the South-Rustom Miah, in the East-Taru Miah & Abdul Khalek, in the

West-Sona Miah, and said Abdul Barek Munshi handover the physical possession of the total land measuring 0.62 acres i.e. 1 kani 11 gandas to the Vendees Rasik Chandra Das along with his two brother within the boundary but the sale deed was made for 0.50 acres of land and in the Sale Deed boundary mentioned for land measuring 0.62 acres. As such it is clear from the boundary that said Abdul Barek Munshi hand over the suit land within the boundary that said Abdul Barek Munshi hand over the suit land within the other land sold to the vendees Rasik Ch. Das & his brothers. Suit land was situated within the said above boundary. Said Abdul Barek Munshi sold his entire land in the year 1969 and 1970 to Manindra Ch. Saha and Rasik Ch. Das & his brothers and after delivery of physical possession of the entire land situated at mouja-Charipara, he left from his land permanently in the year 1970. From the year 1970 said Rasik Ch. Das and two brother were possessing some portion of land by purchase and 0.12 acres i.e. 6(six) gandas of land by occupying and possessing as handed over possession to them from their vendor of mouja- Charipara under Khatian No.441, sabek dag nos.789, 794, 795. In the year 1976 said Rasik Ch. Das and his brothers jointly sold the land measuring 0.50 acres along with their occupied land measuring 0.12 acres total land measuring 0.62 acres by three nos. sale deed bearing nos.1-4961, 1-4962, 1-4963 dated 12- 04-1976 within the same boundary and handed over the physical possession of the entire land measuring 0.62 acres to the answering defendants along with their another brother. On and from i.e. 12-04-1976 the answering defendants occupied the suit land and possessing the suit land adversely denying the right, title and interest of the original jotedar Abdul Barek Munshi or his legal heirs last 37 years and recorded the name of defendants as forceful possessor in the record of rights from 1384 B.S. So the case of the plaintiffs are totally false, vague and contrary to records and hence liable to be dismissed."

[Emphasis added]

On that premises, the defendants disputed the case of the

plaintiffs and stated that the defendants have acquired the title by

way of purchase or by adverse possession.

6. It is pertinent to point out that the ownership of the land

of the predecessor of the plaintiffs has not been disputed neither has

it been questioned that the plaintiffs are not the legal heirs of said

Abdul Barek Munshi @ Abdul Gani Munshi, the original owner.

7. It appears from the judgment dated 24.05.2017

[delivered in Title Suit No.58 of 2013] that the suit was allowed by

observing that even though the plaintiffs have asserted that their

predecessor in interest was the owner and possessor of the suit land

but the plaintiffs have failed to prove their possession within 12

years. Long before the institution of the suit, the original owner

Abdul Barek Munshi @ Abdul Gani Munshi died on 26.01.1988. The

suit was instituted on 30.04.2013. The trial court has believed the

fact that the defendants were on 'illegal' possession and as such, the

plaintiffs were not entitled to any decree on declaring their right, title

and possession over the suit land. By the impugned judgment dated

19.03.2021, the first appellate Court [the District Judge, West

Tripura, Agartala] has clearly spelled out as follows :

"Therefore, due to insufficiency of materials, Learned Trial Court rightly held that the defendants had failed to prove adverse possession. When the defendants have neither been able to prove their title over the suit land nor their adverse possession on the same as discussed above and on the other hand, when the records of both cadastral survey operation and revisional survey operation reflect the name of predecessor of plaintiffs and the plaintiffs respectively as riyat of the suit land, the statutory presumption of correctness of Khatian will come into play and in absence of any contra evidence it can certainly be held that the plaintiffs have been able to prove their title over the suit land. Learned Counsel Mr. Mahajan referred cross examination portion of PW-1 wherein he had stated that his father did not meet the present defendants, and on the context argued that when the predecessor of the plaintiffs did not meet the defendants, so the plaint averments that said predecessor allowed the defendants to stay in the suit land as permissive occupier on condition that whenever asked for, they would vacate the same, stands disproved and therefore, they were not entitled to get decree. But when the title of the plaintiffs in the suit land is established and simultaneously defendants have failed to prove their title over the suit land as

well as their claim of adverse possession, the question whether the defendants were permissive occupier or not, becomes insignificant. In Smti Gita Rani Paul v. Dibyendra Kundu, AIR 1991 (SC) 395, Hon'ble Supreme Court observed thus-

8. In face of the clear pleadings and evidence on record the High Court was wrong in reaching the conclusion that there was no pleading and evidence regarding dispossession. Even otherwise in the face of the findings of the Courts below that the appellant-plaintiff had proved her title it was not necessary for the High Court to go into the question of ascertaining the date of dispossession....

[Emphasis added]

Having recorded the finding thus, the first appellate court

allowed the suit and declared the right, title and interest of the

plaintiffs over the suit land. The defendants of the suit have been

directed to vacate the suit land within (3)three months from the date

of decree by the mandatory injunction.

8. While questioning the said reversal finding, Mr. R.G.

Chakraborty, learned counsel appearing for the appellants has

contended that the title has been declared on the basis of record of

right, deviating from the settled position of law in this regard.

According to the first appellate Court, mere length of possession is

not material to declare a possession adverse within the meaning of

Article 65 of the Schedule of the Limitation Act. In this regard, the

trial court has committed serious error of law inasmuch as there was

no scope for invoking the provisions of Article 64 of the Limitation

Act. From reading of the written statement, it has surfaced that the

defendants [the appellant herein] have set up the plea of adverse

possession.

9. On scrutiny of the records, particularly on reading of

Khatian No.135 [Exbt.1] which is relevant for the suit land, it has

been established that during the revisional survey settlement

operation, the suit land was recorded in the name of the plaintiffs

namely Tajur Islam and Khursed Miah. In the column No.16, the

name of the defendants were shown as illegal occupier. It has been

categorically observed that the suit land was not part of the sale

deed bearing No.1-11106 dated 219.12.1970 [Exbt.A]. By the said

sale deed, Abdul Barek Munshi @ Abdul Gani Munshi had sold out

0.50 acre of land and it is admitted position that [see the written

statement filed by the defendants] that the total land measuring 0.62

acre is not attracted by the said sale deed. By the sale deeds No.1-

4961 [Exbt.B], 1-4963 [Exbt.C] and 1-4963 [Exbt.D], the defendants

purchased 8 gandas 1 kara 1 kranta and 16.5 dhurs of land by each

of the sale deeds. The defendants could not show any lawful

transaction under which they had purchased any land, out of the said

plot measuring 0.12 acre. Thus, Exbts.A, B, C and D have failed to

demonstrate the title of the defendants over the suit land. In the

observation made in the extract above, it reveals that the defendants

have failed to prove their title over the suit land.

10. On thorough scrutiny of the written statement, it

transpires that there is no narrative how the defendants started

possession of the suit land adversely. However, this Court finds that

so far the legal proposition as regards the record of right [khatian] as

source of title is concerned, the law is well settled that on the basis

of the entry made in the Khatian [which is prepared for fiscal

purpose] no title ordinarily can be declared. For this purpose, the

following judgments of the apex Court are relevant :

(1)Suman Verma versus Union of India reported in (2004) 12 SCC 58 (2)Faqruddin versus Tajuddin reported in (2008) 8 SCC 12 (3)Rajinder Singh versus State of Jammu and Kashmir reported in (2008) 9 SCC 368 (4)Municipal Corporation, Aurangabad versus State of Maharastra reported in (2015) 16 SCC 689 (5)T. Ravi versus Chinna Narsimha reported in (2017) 7 SCC 342 (6)Bhimabhai Mahrdeo Kambekar versus Arthur Import and Export reported in (2019) 3 SCC 191 (7)Prahlad Pradhan versus Saan Kumar reported in (2019) 10 SCC 259 (8)Ajit Kumar versus Darshan Singh reported in (2019) 13 SCC 70.

While reversing the finding of the trial Court that it is enough

to decide against the plaintiff if the defendants proved the possession

of the suit land beyond 12 years conforming the requirement of

Article 64 of the Limitation Act, the first appellate Court has observed

Article 64 can have any application in the present context.

11. But the first appellate Court, according to Mr. R.G.

Chakraborty, learned counsel, has reversed that finding

inappropriately. The first appellate Court has observed that in the

context of the case, Article 64 of the Limitation Act cannot be

invoked inasmuch as Article 64 is structured on claim of the

possession of immovable property based on previous possession, not

on title. The limitation of 12 years is for institution of the suit from

the date of dispossession. That apart, it has been observed correctly

that the defendants cannot claim that they are the owner of the suit

land by way of purchase inasmuch as they have failed to prove any

valid transaction of transfer. Above all, their plea of adverse

possession is inconsistent with the said plea of acquiring title by way

of purchase.

12. Having appreciated the submission of Mr. Chakraborty,

learned counsel appearing for the appellant this Court finds that the

first appellate Court has declared the title in favour of the plaintiffs.

As stated above, the ownership and the status of the plaintiffs as

legal heirs are not disputed by the appellants [the defendants] in

their written statement. In the record of right, in place of their

predecessor, meaning after his death, the name of the plaintiffs have

been mutated. If there is no specific challenge, as regard the entry

and the entry is left without rebuttal, the legal presumption under

Section 43 (3) of the Tripura Land Revenue Act, 1960 can be drawn,

interfaced with the fact relevant in the context. The plea of the

defendants of adverse possession is seriously hit as, even before the

first appellate Court, their counsel claimed the ownership of the suit

land by purchase and it has been stated by them that the question of

adverse possession is not material [see para-6 of the impugned

judgment]. Even though, the proposition of law as regard the proof

of title, as advanced by Mr. Chakraborty, learned counsel appearing

for the appellant, is formidable but in the context of the case, the

inference drawn by the first appellate Court cannot be faulted with.

In absence of any challenge as regards the status of the plaintiffs as

legal heirs of Abdul Barek Munshi @ Abdul Gani Munshi and the

ownership of the suit land by Abdul Barek Munshi @ Abdul Gani

Munshi the defendants cannot be permitted to raise any challenge in

the second appeal. The plaintiffs through PW-1 have proved their

pleadings in that regard. Hence, the finding as returned by the first

appellate Court cannot be held to be unsustainable.

13. Having observed thus, this Court does not find any

substantial question of law involved in this appeal, based on which

the impugned judgment can be challenged.

In the result, the appeal stands dismissed.

Prepare the decree accordingly.

JUDGE

Sabysachi B