Smt. Swapna Marak vs Sri Apu Chandra Dey
2022 Latest Caselaw 136 Tri

                                  Page 1

                    HIGH COURT OF TRIPURA
                         AGARTALA
                        RSA 61 of 2019
   Smt. Swapna Marak,
   wife of late Philip Gabil, resident of Uttar Gangail road, Krishnanagar,
   Pragati Road, P.S. West Agartala, District- West Tripura
                                                    ... Defendant-Appellant
                 VERSUS
1. Sri Apu Chandra Dey,
   son of late Anil Chandra Dey, resident of Pragati road (behind Meher Kali
   Mandir, P.O. Agartala, P.S. West Agartala, District- West Tripura
2. Smt. Anu Rani Dey,
   wife of Sri Kajal Datta, daughter of late Anil Chandra Dey, resident of
   Khas Noagaon, P.O. Khayerpur, P.S. Bodhjungnagar, District- West Tripura
3a. Sri Nitai Dey,
    husband of late Anjana Dey, resident of R.K. Nagar, Khas Noagaon
    P.O. Khayerpur, P.S. Bodhjungnagar, District- West Tripura
3b. Smt. Minakshi Dey,
    daughter of late Anjana Dey, resident of R.K. Nagar, Khas Noagaon
    P.O. Khayerpur, P.S. Bodhjungnagar, District- West Tripura
3c. Smt. Minati Saha (Dey),
    daughter of late Anjana Dey, care of Sri Pintu Saha,, house of Sri Anil Saha,
    of Golaghati, P.O. Golaghati, District- Sepahijala, Tripura
4. Sri Bindu Dey
   son of late Anil Chandra Dey, resident of Khas Noagaon, P.O. Khayerpur,
   P.S. Bodhjungnagar, District- West Tripura
5. Smt. Tapashi Dey
   wife of Sri Madhusudan Dey, daughter of late Anil Chandra Dey, resident of
   Khas Noagaon, P.O. Khayerpur, P.S. Bodhjungnagar, District- West Tripura
6. Smt. Mousumi Dey
   wife of Sri Bimal Dey, daughter of late Anil Chandra Dey, resident of
   Khas Noagaon, P.O. Khayerpur, P.S. Bodhjungnagar, District- West Tripura
   (Sl. No. 2, 3(a), (b), (c), 4, 5 and 6 are represented by their lawful attorney
   Sl. No. 1, Sri Apu Chandra Dey, son of late Anil Chandra Dey, resident of
   Pragati Road (behind Meher Kali Mandir), P.O. Agartala, P.S. West
   Agartala, District- West Tripura (notices to be served to him)
                                                      ... Plaintiff-Respondents

For Appellant (s ) : Mr. GS Bhattacharjee, Advocate For Respondent (s) : Mr. A. De, Advocate Date of hearing and delivery : 03.02.2022 of judgment and order Whether fit for reporting : Yes / No Page 2

HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER (ORAL)

1. It appears that at the time of admission of the instant appeal, substantial

question of law has not been formulated. As such, as proposed by the

learned counsel appearing for the parties, the following substantial question

of law has been formulated:

"Whether non-appreciation of the evidences surfaced on record that the plaintiff based on entry in the Khatian no. 15007 as permissive possessor of the defendant filed a proceeding under Section 95 vide 141/2008 of the TLR & LR Act for correction of the wrong entry, admitting that there is no permissive possessor, and he is possessing the suit land without any difficulty, and instantly filed the suit being T.S. 65 of 2011 for recovery of possession on the basis of wrong entry as the defendant is permissive possessor so evictable, attracts estoppels for the plaintiffs, thus, judgment of the appellate court is perverse?"

2. Heard Mr. GS Bhattacharjee, learned counsel appearing for the

appellant as well as Mr. A. De, learned counsel appearing for the

respondents.

3. This is a second appeal preferred by the defendant-appellant against the

judgment and decree dated 19.03.2019 passed by the learned Additional

District Judge, Court no. 2, West Tripura, Agartala in case No. Title Appeal

11 of 2013 whereby and whereunder the judgment and decree dated

05.01.2013 passed by the learned Civil Judge, Junior Division, Court no.1,

Agartala, West Tripura in case no. Title Suit 65 of 2011 had been affirmed.

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4. Briefly stated, the plaintiffs, the respondents herein, had instituted a suit

for declaration of right, title, interest and recovery of possession of the suit

land against the defendant, the appellant herein, alleging that though they

are the owners of the suit land, but, the defendant had been possessing the

suit land and in the Record of Right (khatian) the name of defendant has

been shown as permissive possessor over „B‟ schedule land, which is the

part of schedule „A‟ land mentioned in the plaint. The order passed by the

learned trial court may be reproduced here-in-below:-

"In the result, the suit of the plaintiffs is decreed on contest with cost with a declaration that the plaintiffs have right, title and interest over the suit land described in schedule-A of the plaint except the land of Hal Dag no. 1287, 1289 and 1293 and the plaintiffs are also entitled to get recovery of possession of the suit land described in schedule-B of the plaint by evicting the defendant and by removing all obstruction therefrom on condition that the plaintiffs have to pay the deficient court fees of Rs. 750/- before the executing court to make the judgment and decree enforceable in law.

Accordingly, irrespective of payment of court fees by the plaintiffs, the defendant is directed to handover the vacant possession of the suit land described in schedule-B of the plaint to the plaintiffs within 60 (sixty) days from today. The suit is disposed of on contest with cost.

Make necessary entry in the relevant Trial Register."

5. Against the said decree, the defendant has preferred first appeal before

the learned District Judge, West Tripura, Agartala. The matter was

transferred to the court of learned Additional District Judge, Court no.2,

West Tripura, Agartala. Having heard the learned counsel appearing for the

parties and after perusal of the evidences and materials on record, the

learned Additional District Judge dismissed the appeal with certain

observations. Being aggrieved, the defendant has preferred the instant

second appeal.

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6. Mr. GS Bhattacharjee, learned counsel for the defendant-appellant has

confined his submission within the substantial question of law as

formulated here-in-above. One very significant submission has been made

by the learned counsel for the defendant-appellant is that the defendant-

appellant has not been possessing the suit land. This court has put a

question to him, if that be so, how the appellant will be affected by the

decree. However, without making any comment over this issue, I have

perused the records. It is surfaced that the plaintiffs in favour of their claim

over their ownership over the suit land produced Record of Right (khatian)

which was initially recorded in the name of their father, late Anil chandra

Dey. From this khatian, it is found that the name of Anil chandra Dey has

been shown as "Rayot". After the death of Anil chandra Dey, the plaintiffs

have become owner of the suit land by way of inheritance. They found that

in the khatian the name of the defendant has been recorded as permissive

possession (at column no. 24).

7. The plaintiffs filed an application for correction of Record of Right to

the District Magistrate & Collector, West Tripura, Agartala, under Section

95 of the TLR & LR Act, alleging that the defendant was not in possession

of the land (Exbt. 2, the petition which was filed before the DM &

Collector). The petition was entered in the register of DM & Collector, as

Revenue case No. 141 of 2008. As submitted by the learned counsel

appearing on behalf of the appellant, the Revenue court did not pass any Page 5

order and the proceeding was dropped for the reason that the plaintiffs had

instituted the present suit before the learned court of Civil Judge, Junior

Division, West Tripura, Agartala.

8. After receipt of summon, the defendant appeared and contested the suit

by way of filing written statement. On the basis of pleadings, issues were

framed. On the basis of issues, both the parties had adduced their respective

evidences and introduced some documents in favour of them. Thereafter,

arguments were heard as advanced by learned counsel appearing for the

parties to the lis. Having heard, learned trial court decreed the suit in favour

of the plaintiffs, as stated here-in-above. The appellate court after hearing

the learned counsel for the parties, had affirmed and upheld the judgment

and decree passed by the learned trial court.

9. Before this court, Mr. Bhattacharjee, learned counsel has submitted that

when the plaintiffs have stated in the petition they filed before the revenue

court that the defendant was not in possession of the suit land, then, how the

present suit for recovery of possession is maintainable.

10. I have found that the revenue court did not pass any order. The

proceeding was ended with the order that since the plaintiffs had instituted a

suit before the learned trial court, it would not be appropriate for the

revenue court to pass any order in the said proceeding. Hence, my simple

answer is, this statement has no force in the eye of law when the plaintiffs

had filed a separate suit before the civil court for final adjudication of the Page 6

matter. It is settled proposition of law that the findings of learned civil court

is binding upon the revenue court.

11. Now, coming back to the present appeal, and the substantial question of

law, as formulated by this court, I find that both the courts below held that

khatian has a presumptive value which can be rebutted by way of adducing

evidence. From the khatian it transpires that the name of the father of the

plaintiffs was recorded as "Rayot" and the name of the defendant has been

shown as permissive possessor in column no. 24 of the said khatian.

„Rayot‟ means a person who owns the land, but, it is made clear that this is

only a presumption of ownership, which can be rebutted by way of

adducing better evidence. In the instant case, it is found that the defendant

could not dispute this presumption of ownership which lies in favour of the

plaintiffs by way of adducing evidences. Hence, the Record of Right i.e. the

khatian prepared by the revenue department after thorough survey cannot

be denied in absence of any rebuttal evidence. Moreso, I have kept in mind

the submission of learned counsel appearing for the appellant that she is not

in possession of the suit land. In view of this, in my opinion, if the

defendant is not in possession of the suit land, then, how he has been

affected by the decree.

12. In view of the above discussion, in my considered view, the decree can

be executed. Accordingly, the substantial question of law, as formulated,

that appreciation of evidence as surfaced during the proceeding and the Page 7

findings of the learned courts below regarding evidentiary value of the

khatian is correct is accordingly answered.

13. In the light of above discussion, the present second appeal is devoid of

any merit, and thus, dismissed.

Pending application(s), if any, also stands disposed.

Send down the LCRs.

JUDGE

Saikat