Tripura High Court

Defendant vs Shri Amar Ranjan Sarkar on 5 August, 2022

                                   Page 1 of 9


                        HIGH COURT OF TRIPURA
                              AGARTALA
                          RSA NO.04 OF 2020

Shri Deshapremik Roy,
S/o Late Jatindra Chandra Roy,
Vill-Fulkumari, Presently residing at Dak Bunglow Road,
P.O. & P.S: R.K. Pur, Udaipur Town, Gomati District,
Tripura.

                                           -----Defendant-Appellant.

                                    Versus

Shri Amar Ranjan Sarkar,
S/o Late Nishi Kanta Sarkar,
Vill-Fulkumari, P.O & P.S: R.K. Pur,
Udaipur Town, Gomati District, Tripura
                                     -----Plaintiff-Respondent.

For the Appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate.

Ms. A. Pal, Advocate.

For the Respondent(s) : Mr. D. Bhattacharjee, Sr. Advocate.

Mr. S. Saha, Advocate.

     Date of hearing         : 02.08.2022

     Date of delivery of
     Judgment & Order        : 05/08/2022

     Whether fit for reporting: NO.


                         BEFORE
          HON'BLE MR. JUSTICE T. AMARNATH GOUD

                       JUDGMENT & ORDER

This is an appeal filed under Section 100 of the Code

of Civil Procedure, 1908 against the judgment dated

09.09.2019 passed by the learned District Judge, Gomati

District, Udaipur in Title Appeal No.05 of 2018 upholding the

judgment passed by the learned Civil Judge(Junior Division),

Gomati District, Udaipur dated 07.06.2018 in Title Suit No.02

of 2000.

2. The fact of the case is brief are that one Lt. Nishi

Kanta Sarkar, the father of the respondent herein was the

possessor of the suit land from 1955 and he made some

construction therein. After his death, the respondent started

possessing the same and in the year 1984, the appellant

entered into the possession of the suit premises based on a

registered lease deed for a period of two years, where he

started a sweet-meet shop which was renewed in the year

1989 for another two years. After the expiry of the said lease

period, it was further extended up to 08.08.1991, for two

years. Thereafter on expiry of the lease period, the appellant

continued the possession of the said premises ignoring the

request of the respondent to execute a fresh lease deed for the

same. The same premises required some maintenance and the

respondent requested him to vacate the premises for the

purpose of repairing, but of no result. So, after serving a legal

notice to vacate the said premises, and to pay the unpaid rent,

he filed the suit for eviction against the appellant.

3. After receiving the summons from the learned Court,

the appellant appeared therein and contested the suit by filing

a written statement denying all the averments made in the

plaint. It was the contention of the appellant that he has been

running the said sweet-meet shop on C.S. Plot No.1528 as a

tenant of Radha Ballav Sutradhar since Aswin 1400 BS. The

respondent never possessed any portion of the said C.S. Plot

No.1528 and never made any construction on that land. It was

further claimed by the appellant that construction made within

the C.S. Plot No.1528 was of Shri Radha Ballav Sutradhar and

from 1391 BS to 1400 BS, he was a tenant of the respondent

in a temporary shed constructed by him to the eastern side of

C.S. Plot No.1529. The said plot is lying to the southern

boundary of the C.S. Plot No.1528 and during that period of

time, some registered instruments were created between the

appellant and the respondent. He further denied having

knowledge regarding the contents of these registered

instruments. He further claimed that in the middle part of 1399

B.S., the respondent requested him to vacate the 'dokan' shed.

Accordingly, in the last part of 1400 B.S. he vacated the said

premises and handed over the possession to the respondent.

Thereafter, he entered into possession of the premises on

12.09.1993 as a tenant of Radha Bhallav Sutradhar and started

running his business therein. He further stated that the

boundary of the suit land mentioned in the plaint was not

correct and prayed for disposal of the suit.

4. Based on the evidence of the parties, the learned

Court below after completion of the trial, passed the judgment

on 07.06.2018. The Court below decreed the suit directing the

respondent therein to handover the possession of the suit land

to the appellant and also to pay rent at the rate of Rs.300 per

month along with damaged amounting to Rs.29 per day from

the month of Jaisthya 1406 till vacation of the suit premises.

5. The appellant felt seriously aggrieved by the said

judgment of the Trial Court below and challenged the same by

filing an appeal in the Court of District Judge, Gomati District,

Udaipur, Tripura which was numbered as T.A.05 of 2018. The

learned Appellate Court below, after hearing the appeal passed

the impugned judgment on 09.09.2019 dismissing the appeal

and confirming the judgment of the learned Trial Court below.

6. Aggrieved thereby with the impugned judgment,

passed by the learned Appellate Court below, the appellant

filed this instant second appeal before this Court.

7. This instant second appeal was admitted on

26.08.2020 on the following substantial question of law:-

"i. Whether the plaintiff has any right to seek eviction of the defendants without having any title over the suit land?

ii. Whether the findings of both the Courts below are perverse?

iii. Any other substantial question which may arise at the time of hearing of this appeal."

8. Heard Mr. S.M. Chakraborty, learned Sr. counsel

assisted by Mrs. A. Pal, learned counsel appearing for the

appellant as well as Mr. D. Bhattacharjee, learned Sr. counsel

assisted by Mr. S. Saha, learned counsel appearing for the

respondent.

9. Mr. S.M. Chakraborty, learned Sr. counsel appearing

for the appellant herein argued that Courts below miserably

failed to appreciate the pleaded case of the appellant and the

evidence on record. Learned Sr. counsel further submitted that

all the Courts below misread the record. The Courts below

failed to appreciate that they were under obligation to

appreciate both the fact and law involved in the case. The

Courts below while passing the impugned order miserably

failed to appreciate that the land measuring 0.023 acre covered

by the C.S. Plot No.1528 of khatian No.616 on which the shop

premises of the respondent is situated was the land under the

ownership and exclusive possession of Smt. Laxmi Rani

Sutradhar, wife of Late Radha Ballav Sutradhar. The

respondent had no claim of right or title over the said land. So

the learned Courts below have no scope to pass the eviction

decree in favour of the respondent. The learned Court below

miserably failed to appreciate the contents of Exbt-13 i.e. the

judgment of this Court dated 12.08.2016 passed analogously in

RSA No.76 and 77 of 2017, wherein, it was specifically held in

para-35 and 36 that the original plaintiff of that suit, viz, Radha

Ballav Sutradhar was able to prove his hostile possession over

his shop which was standing on 0.023 acres of land and not on

the entire land of 0.052 acres on which the earlier decree was

passed. Accordingly, partly allowing that appeal and after that

judgment of this Court, both the Courts below were left with no

authority to arrive at the third finding avoiding the said

judgment.

10. Mr. D. Bhattacharjee, learned Sr. counsel countering

the argument of the learned Sr. counsel appearing for the

appellant pointed out the findings of the learned first appellate

Court and held that the judgment and order passed on

09.09.2019 is just and proper and needs no interference.

Further, in support of his contention, Mr. Bhattacharjee,

learned Sr. counsel pressed into service Para-25 of the Apex

Court Judgment dated 02.14.2020 passed in C.

Doddanarayana Reddy(Dead) by Legal Representative

and ors. Vs. C. Jayarama Reddy(Dead) by Legal

Representatives and ors., reported in (2020) 4 SCC 659

which is reproduced herein-under:-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC

392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC

166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even as- assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. , this Court held: (SCC p. 486, para

5) „5.........."The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

Mr. Bhattacharjee, learned Sr. counsel also

referred to para-10 of the judgment of the Apex Court dated

07.16.2019 passed in Chaman Lal(Dead) Through Legal

Representative Vs. Kamlawati(Dead) Through Legal

Representatives reported in (2020) 11 SCC 693 which is

reproduced herein-under:-

"10. We are fortified in our aforesaid view by earlier judicial pronouncements. We may note that these judgments are in the context of the provisions for second appeal under Section 100 of the said Code as it existed prior to the amendment of 1976, which is almost pari material to the existing provision which applies to Punjab[as noticed in Pankajakshi in para-24]. Per se construction of documents (unless documents of title) to prove a question of fact do not involve an issue of law unless it can be shown that the material evidence contained in that was misunderstood by the Court of fact. In the facts of the present case we are, in fact, dealing with a document of title i.e. the gift deed. Thus, there can be little doubt that if the translation of the document itself is not correctly done, an aspect which was addressed to by the High Court by getting the translation done, which was accepted, then the correct translation would have to be re-construed. It is the principle, which was recognized in Chunilal V. Mehta & Sons Ltd. V. Century Spg. & Mfg. Co. Ltd., while observing in Para-2 as under: (Chunilal Vs. Mehta case, AIR p.1316) " 2...... Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law."