Sri Pradip Brata Roy vs Smt. Manabala Rudra Paul
2022 Latest Caselaw 779 Tri

                  HIGH COURT OF TRIPURA
                        AGARTALA
                      RSA 05 of 2020

Sri Pradip Brata Roy,
son of late Manindra Lal Roy,
Village-Sonatala, P.S. Khowai,
District - Khowai, Tripura
                                                .......... Appellant(s)

                                 Versus


1. Smt. Manabala Rudra Paul,
wife of late Narendra Chandra Rudra Paul,

2. Smt. Archana Rudra Paul,
wife of Sri Ratan Bardhan,
daughter of late Narendra Chandra Rudra Paul,

3. Smt. Chandana Rudra Paul(Bhowmik),
wife of Sri Nirmal Bhowmik,
daughter of late Narendra Chandra Rudra Paul,

all are residents of Vivekananda Nagar, Sharma
Basti, P.O. Ambassa, P.S. Ambassa,
District - Dhalai, Tripura
                                             .......... Respondent(s)

4. Sri Gautam Debnath, son of late Dhirendra Chandra Debnath

5. Sri Prasanta Debnath, son of late Dhirendra Chandra Debnath

6. Smt. Jyotsna Debnath, wife of late Dhirendra Chandra Debnath

all are residents of Karailong, P.S. Teliamura, District - Khowai, Tripura

7. Sri Dulal Debnath, son of late Dhirendra Chandra Debnath

8. Sri Uttam Debnath, son of late Dhirendra Chandra Debnath

both are resident of Village & P.O. Indranagar, near Indranagar Government High School, P.S. New Capital Complex, Indranagar, Agartala, Tripura West, Pin - 799006

9. Smt. Pushpa Debnath, wife of Sri Subhash Debnath, daughter of late Dhirendra Chandra Debnath, Village & P.O. Indranagar, near Amrit Stores, P.S. New Capital Complex, Indranagar, Agartala, Tripura West, Pin - 799006

10. Smt. Namita Debnath, wife of Sri Chandan Bhowmik, daughter of late Dhirendra Chandra Debnath, Village & P.O. Indranagar, (Shib Shakti Lane), near Kabar Khola, P.S. New Capital Complex, Indranagar, Agartala, Tripura West, Pin - 799006

11. Smt. Anita Debnath, wife of Sri Salil Pandit, daughter of late Dhirendra Chandra Debnath, resident of Ashram Chowmuhani, P.S. East Agartala, Agartala, Tripura West

12. Sri Jayanta Debnath, son of late Dhirendra Chandra Debnath, care of Corporate Office of Tripura Info.com., VIP Road, Litchi Bagan, P.S. N.C.C., Agartala, Tripura West .......... Proforma-Respondent(s) For Appellant(s) : Mr. A. De, Adv.

For Respondent(s)        :     Mr. S. Lodh, Adv.
Date of Hearing          :     16.08.2022





       Date of Judgment & Order        :      22.08.2022
       Whether fit for reporting       :      YES/NO

                 HON'BLE MR. JUSTICE T. AMARNATH GOUD

                               Judgment & Order

This is an appeal under Section 100 of the CPC preferred

against the judgment and decree dated 20.09.2019 and 24.09.2019

respectively delivered by the District Judge, Khowai in T.A.08 of 2018

dismissing the judgment and decree passed in T.S.02 of 2012 dated

18.07.2018.

2. The brief fact of the case is that the plaintiffs have some

portion of land measuring 9 gandas in total nearby their homestead at

Karoilong which they have inherited from deceased Narendra Chandra Rudra

Paul as described in Schedule-A of the plaint. In the year 2002-2003, due to

dire need of money, the plaintiff approached the defendant No.2 for loan

amounting to Rs.20,000/- which the defendant No.2 had given the plaintiff

on taking her thumb impression on a paper narrating and explaining her as

"receipt of loan." In the year 2011, when the plaintiff approached the

defendant No.2 for returning a part of the said loan, she was informed by the

defendant No.2 that the land had already been purchased from the plaintiff

in the year 2003. The plaintiff was perplexed as she never made any sale

deed or visited the Sub-Registry Office at Khowai and the said land is under

their peaceful possession.

3. After registration of the suit, summons were served on all the

parties and they entered their appearance through their respective counsel

and contested by filing written statement. The trial Court after recording their

statements framed the following issues in order to decide the suit :

"ISSUES

i) Whether the suit is maintain able in its present form and nature?

ii) Whether the suit land is the joint property of the plaintiffs and they are in possession of the said land?

iii) Whether the registered sale deed bearing No.1-942 dated 04.07.2003 is void in the eye of land and liable to be cancelled?

iv) Whether the plaintiffs are entitled to the decree as prayed for?

v) To what other relief/reliefs the parties are entitled to?"

4. The trial court on appreciation of the evidence decreed the suit

with costs in favour of the plaintiffs and declared that they are in possession

of the suit land as described in Schedule-A of the plaint. The trial court has

further held the sale deed as described in Schedule-B of the plaint as void.

5. The defendant No.1 in the suit preferred appeal being T.A.08

of 2018 challenging the judgment and decree dated 18.07.2018 and

25.07.2018 respectively delivered in T.S.02 of 2012. It was the case of the

appellant in the said appeal that for urgent need of money the plaintiff

respondent No.1 approached him for sale of the land in question for a

consideration price of Rs.40,000/- and accordingly, the sale deed was

registered in the name of the present appellant. It was further argued by the

appellant that the Title Suit suffered from non-joinder of necessary parties

and therefore, deserved to be dismissed.

6. The District Judge, Khowai after hearing both the sides and on

appreciation of the issues and the evidence, held that the appeal preferred

by the appellant was devoid of merit and thereby affirmed the judgment

passed in the title suit.

7. Aggrieved by the order in appeal against the concurrent

findings the present appeal has been preferred by the defendant No.1 who is

the appellant herein.

8. At the time of admitting this appeal, the following substantial

questions of law have been framed:

"(i) Whether the suit is barred by law of limitation for the reason that the suit for cancellation of the sale deed No.1-942 dated 04.07.2003 has been filed after the lapse of nine years ?

(ii) Whether the findings of both the courts below are perverse ?

(iii) Any other substantial question of law to be urged at the time of hearing ?"

9. Mr. A. De, learned counsel appearing for the appellant has

argued on the point of limitation and contended that in the year 2003 the

sale deed was executed and in the year 2013 the present suit has been filed

and the same has been barred by limitation, since the suit is supposed to be

filed within a period of three years.

10. He has further argued on the point that if the court is

convinced that the suit is not barred by limitation then the defendant No.1,

who is the appellant herein, is entitled for purchasing the share of the

plaintiff No.1, the mother and the entire share including the daughters or the

purchase be confined to the share of the mother, plaintiff No.1 only.

11. He has also relied on a judgment of the apex court in Saroj

versus Sunder Singh & Others delivered in Civil Appeal No.10582 of 2013

(arising out of SLP(C)No.27949 of 2012). He has referred to para-13 which

reads as follows:

"13. Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters became definite; the question of family partition retaining the character of joint Hindu Family property does not exist. In the present case, after the death of the father, the property has been shared amongst each member of the family and recorded in the mutation register having 1/4th share each. In such circumstances, the provision of sub-section (3) of Section 8 shall attract as the mother sold the property without previous permission of the Court. Hence, both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of the minor i.e. the appellant and the Proforma- respondent nos.4 & 5."

12. He has prayed to allow the appeal by setting aside the order of

appeal which is confirmed by the decree in original suit.

13. Mr. S. Lodh, learned counsel appearing for the plaintiff-

respondents submits that since the appeal is against the concurrent findings

and the appellant has not made out a case for appeal, he has further

contended that the suit is not maintainable in view of Article 56 of the

Limitation Act according to which within a period of three years the suit has

to be filed. In the year 2003 the document was executed and only in the year

2011, the appellant plaintiff as the defendant No.2 being an advocate and

local political leader has abused his powers against the said plaintiff who is

none other than his servant maid. The defendant No.2 did not enter into the

witness box to examine himself. The plaintiff never sold the property to the

Defendant No.1 and they do not know each other. Mr. Lodh, learned counsel

has further stressed on Section 44 of the Transfer of Property Act, 1882

which reads as follows :

"44. Transfer by one co-owner.--Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."

14. Heard Mr. A. De, learned counsel appearing for the appellant

as well as Mr. S. Lodh, learned counsel appearing for the respondents.

15. The counsel for the appellant has argued only on the point of

limitation and for treating the appellant as entitled for the share of the

mother, if not the share of the daughters.

16. On the point of limitation, this court is not convinced with the

argument of the appellant. It is the case of the plaintiff that in the year 2003

the plaintiff had taken loan from the defendant No.2 and executed certain

receipts and according to her, when the plaintiff had approached the

defendant No.2 in the year 2011 with the refund of the amount, the

defendant No.2 has informed her that the property has been purchased and

the particulars were not known with regard to the execution of the sale deed.

Then in the year 2013 i.e. within a period of three years the plaintiff has

preferred the suit and in the light of Article 56 of the Limitation Act since the

appeal has been preferred within three years from the date of knowledge, it

cannot be said that the suit is barred by limitation.

17. In so far as, the other argument of the counsel for the

appellant with regard to purchasing of the share of the mother to be held

valid is concerned, admittedly the plaintiff has denied the execution of the

sale deed in favour of the defendant No.1 and when the plaintiff is the only

share holder with regard to the undivided share in the property by metes and

bounds, alienating her share is not permissible. When the entire sale

transaction itself is disputed by the plaintiff it is not open for this court to

deny the same. Further, the argument of the counsel for the appellant to

confine the subject property to the extent of the share of the plaintiff is

concerned, it cannot be accepted, since the suit is not filed by the defendant

No.1 [the appellant herein] for the said relief. Hence, the relief cannot be

granted in the present appeal.

18. The judgment and decree passed by the Civil Judge, Junior

Division, Khowai, West Tripura Judicial District in T.S.02 of 2012 dated

18.07.2018 which is confirmed in appeal by the District Judge, Khowai,

Tripura in T.A.08 of 2018 dated 20.09.2019 is well considered and needs no

interference. Hence, the present second appeal is liable to be dismissed.

With the above observation, the appeal being devoid of merits

and is accordingly dismissed.

JUDGE

Sabyasachi B