Smti. Dipali Bhowmik vs Shri Sudhir Malakar
2022 Latest Caselaw 758 Tri

                                 Page 1 of 8




                     HIGH COURT OF TRIPURA
                           AGARTALA

                              RSA 46 of 2015

1. Smti. Dipali Bhowmik
   W/O. Late Sukumar Bhowmik
2. Shri Abhijit Bhowmik
   S/o Late Sukumar Bhowmik
3. Smti. Kalyani Bhowmik
   D/o Late Sukumar Bhowmik
4. Smti. Shiuli Bhowmik
   D/o Late Sukumar Bhowmik
   All are residents of Chinaihani,
   P.O and P.S Air Port, West Tripura District.
                                                  ---Appellants

                                   Versus

Shri Sudhir Malakar
S/o- Late Mahendra Chandra Malakar
A resident of Chinaihani,
P.O. Air Port West Tripura District.
                                                  ---Respondent

RSA 47 of 2015

1. Smti. Dipali Bhowmik W/O. Late Sukumar Bhowmik

2. Shri Abhijit Bhowmik S/o Late Sukumar Bhowmik

3. Smti. Kalyani Bhowmik D/o Late Sukumar Bhowmik

4. Smti. Shiuli Bhowmik D/o Late Sukumar Bhowmik All are residents of Chinaihani, P.O and P.S Air Port, West Tripura District.

---Appellants

Versus

Shri Sudhir Malakar S/o- Late Mahendra Chandra Malakar A resident of Chinaihani, P.O. Air Port West Tripura District.

                                                          ---Respondent


 For the Appellant(s)                :   Mr. S. M. Chakraborty, Sr. Advocate
                                         Ms. Ankita Pal, Advocate
 For the Respondent(s)               :   Mr. D. Deb, Advocate

 Date of hearing                     :   14.07.2022
 Delivery of Judgment & Order        :   11.08.2022

 Whether fit for reporting           :    No


                  HON'BLE MR. JUSTICE ARINDAM LODH

                             JUDGMENT & ORDER

Heard Mr. S. M. Chakraborty, learned senior counsel

assisted by Ms. Ankita Pal, learned counsel appearing for the appellants.

Also heard Mr. D. Deb, learned counsel appearing for the respondent.

2. The present appeals are directed against the judgment and

decree dated 21.08.2015, passed by learned District Judge, West Tripura,

Agartala in connection with Title Appeal No. 30 of 2014 whereby and

whereunder, the judgment and decree passed by learned trial Judge has

been set aside.

3. The factual matrix as is discerned from the pleadings

exchanged between the contesting parties are as under:-

3.1 The plaintiff-appellants (hereinafter referred to as the

plaintiffs) instituted the suit vide no. TS No.114 of 2010 in the court of

learned Civil Judge (Senior Division), Court no. 2, West Tripura,

Agartala against the defendant-respondent (hereinafter referred to as the

defendant) for declaration and recovery of possession and also for

injunction in regard to the suit land as described in Schedules- „A‟, „B‟

and „C‟ of the plaint.

3.2 The defendant contested the suit by filing written statement

disputing of the averments raised by the plaintiffs.

3.3 Issues were framed and thereafter, after completion of

recording of evidence and having heard the arguments on behalf of the

learned counsels appearing for the contesting parties, learned trial Judge

decreed the suit on 14.06.2014 granting decree of recovery of possession

in respect of the Schedule „A‟ land, measuring 0.21 decimals i.e. 10 ½

Gandas comprised in Khatian No. 694 of R.S. Plot No. 3514 in respect of

the land and sale deed no. I/2791 dated 06.04.1977 of the exhibited 3

series in the name of the predecessor of the plaintiffs (purchaser), namely

Sukumar Bhowmik (since deceased). However, no decree was passed

with reference to „B‟ and „C‟ Schedule Land as the learned trial Judge

found that the suit lands were not similar to the boundaries described in

the sale deeds.

3.4 Against the judgment and decree passed by the learned trial

court dated 13.06.2014, the defendant preferred a title appeal in the court

of learned District Judge, West Tripura, Agartala, with reference to „A‟

Schedule land. The said appeal was numbered as Title Appeal No. 30 of

2014. Similarly, the plaintiffs also filed a cross-objection in the said

appellate court with reference to the findings given on Schedules „B‟ and

„C‟ of the plaint, which was numbered as Civil Misc. Appeal No. 143 of

2014 (in TA 30 of 2014).

3.5 The learned District Judge, West Tripura, Agartala after

hearing the parties allowed the appeal preferred by the defendant setting

aside the judgment and decree dated 13.06.2014, so far as it relates to the

land of Schedule „A‟. The learned District Judge in the same judgment

also dismissed the cross-objection filed by the plaintiffs holding that the

boundaries of Schedules „B‟ and „C‟ of the land are not tallied with the

boundaries of the sale deed and the boundaries of the plaint and the

evidence.

3.6 Feeling Aggrieved, the plaintiff preferred two separate

second appeals, one being against the judgment passed by the first

appellate court in TA 30 of 2014 and another against the dismissal of the

cross-objection. The said two appeals were registered as RSA 46 of 2015

(arising out of TA 30 of 2014) and RSA 47 of 2015(arising out of

dismissal of the cross objection).

4. While admitting both the second appeals, the following

substantial question of law was formulated:

"Whether the judgment and decree passed by the appellate court

suffer from perversity for non-appreciation of the pleadings and

evidence on record."

5. After hearing the parties to the appeals, this court set aside

the judgment dated 21.08.2015 passed by Ld. District Judge vide its

judgment dated 31.10.2019.

6. Being aggrieved and dissatisfied with the said judgment

and decree passed by this second appellate court, the defendant

preferred appeal before the Hon‟ble Supreme Court, which was

registered as Civil Appeal No. 6235/36 of 2021 (arising out of SLP(C)

No. 16193 -16194 of 2021). While disposing of the said Civil appeal,

the Hon‟ble Supreme Court remanded the matter back to this court with

the following observations:-

" However, as the appeal proceeded for hearing, the

high court appointed surveyor and called upon him to submit

report. The entire judgment under appeal is founded on noting

made in the surveyor report dated 24.05.2019. In that sense, the

High Court exceeded its jurisdiction, in the first place, in

appointing surveyor and inviting report of the surveyor which was

not part of evidence before the Trial Court or for that matter,

before the First Appellate Court. The admissibility of such a report

was also a matter in issue.

In any case it is well-established that the High Court

while dealing with the second appeal must confined itself to the

substantial questions of law as framed and if it intends to answer

in other substantial question of law must put the parties to notice

in that regard well-in-advance.

Taking any view of the matter, therefore, the impugned

judgment cannot be sustained in the eyes of law and the same is

set aside. As a consequence, we relegate the parties for

reconsideration of the second appeal (s) by restoring the same to

the file of the High Court to its original number and for being

decided afresh in accordance with law without being influenced

by any observation made in the impugned judgment. All

contentions available to both sides, including regarding

admissibility of new evidence much less in the form of surveyor

report at second appeal stage are left open, to be considered by

the High Court on its own merit."

7. It is true that this court had appointed surveyor who after

surveying the suit land submitted its report. These appeals have to be

decided on the basis of the substantial question of law and to find out

whether the findings of the first appellate court are perverse. In my

opinion, if the courts below do not get the opportunity to deal with all

the facts emanated from the first report of the Survey Commissioner

including the last report of the Survey Commissioner submitted before

this court, then, how this court will come to the conclusion that the

findings of the first appellate court are perverse? None of the parties had

sought for formulating any further substantial question of law at the

time of hearing of this appeal. In my opinion, the controversy and rival

submissions advanced by the Ld. Senior counsels appearing on behalf

of the respective parties before this court should be canvassed before

the Ld. first appellate court, who will decide the case in accordance with law. The controversies raised before this court centered round the report of the survey commissioner and other related questions cannot be decided by this court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, 1908.

8. After perusal of the order sheets passed by this court, it reveals that this court in its order dated 29.07.2019 passed in RSA 46 of 2015 had recorded that the "learned counsel appearing for the respondent has stated that respondent will not press the objection filed against the surveyor‟s report." However, all questions relating to the suit thereof are left open to the parties.

9. In the light of the above, I remit back the matter to the learned first appellate Court i.e. learned District Judge, West Tripura restoring the same to the file of the Court of the District Judge, to its original number to arrive at a fresh decision in accordance with law without being influenced by any observation made by this court herein. Consequently, the impugned judgment and decree passed by the Ld. first appellate court are set aside.

10. The above two appeals, thus, disposed of in the above terms.

Send down the LCRs.

JUDGE

Rohit