Tripura High Court
Sri Ajit Kumar Debbarma vs Sri Malin Das on 8 February, 2022
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
RSA NO.44 OF 2019
Sri Ajit Kumar Debbarma,
S/O Late Kunja Behari Debbarma,
Resident of Meniabari, Baramaidan,
P.S. Kalyanpur, Khowai, Tripura.
........... Appellant(s)
Versus
1. Sri Malin Das,
S/O Late Jyan Ch. Das,
2. Smt. Sumitra Das,
W/O Sri Milan Das,
Both are residing at Kalyanpur Colony,
P.S. Kalyanpur, Khowai, Tripura.
3. Sri Uttam Debbarma,
S/O Sri Padma Mohan Debbarma,
Resident of Bashi Kabra Para, Kalyanpur,
Khowai, Tripura.
........... Respondent(s)
BEFORE
HON'BLE MR. JUSTICE ARINDAM LODH
For appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate
Mr. Ranjit Debnath, Advocate
For Respondent(s) : Mr. Kousik Roy, Advocate
Mr. G.S. Bhattacharjee, Advocate
Date of hearing and delivery
of judgment & order : 08.02.2022
Whether fit for reporting : No
JUDGMENT & ORDER(ORAL)
This is a second appeal against the judgment and
decree dated 08.08.2019, passed by the learned District Judge,
Khowai in T.A. No.9 of 2018, affirming the judgment and decree
dated 11.07.2018, passed by the learned Civil Judge(Sr.
Division), Court No.1, West Tripura, Agartala in Title Suit No.79
of 2016.
2. The plaintiff instituted the suit praying for granting
perpetual injunction restraining the defendants and their men
and agents from entering into the suit land and from disturbing
the peaceful possession of the plaintiff, the appellant herein.
3. The defendants after receipt of summons appeared
and contested the suit by filing written statement.
4. It is the case of the plaintiff that he has been
possessing the suit land for over 40(forty) years but, suddenly,
the defendants have started disturbing the peaceful possession
of the plaintiff and have been trying to evict him from the suit
land. He came to know that the suit land was allotted in favour
of the defendant Nos.1 and 2.
4.1. Having come to learn about this fact of allotment, he
filed an application before the Sub-Divisional Magistrate,
Teliamura for cancellation of the allotment order.
4.2. On receipt of that application, the Sub-Divisional
Magistrate, Teliamura, Khowai District through Tehsilder,
Kalyanpur T.K. had made an enquiry where it was reported that
the plaintiff had been possessing the suit land.
4.3. On the basis of that report, the Sub-Divisional
Magistrate, Teliamura, Khowai held that the purpose for which
the allotment was given in favour of the defendant Nos.1 and 2
had not been achieved by the State of Tripura. Having held so,
the Sub-Divisional Magistrate had cancelled the allotment order
which was issued in favour of the defendant Nos.1 and 2.
4.4. It is also the case of the plaintiff that on the strength
of the said allotment order which was issued in favour of the
defendant Nos.1 and 2 in the year 1980, they sold the suit
property to the defendant No.3. As such, the plaintiff also
challenged the said Sale Deed and prayed for cancellation of the
same as void ab initio, since according to the plaintiff, there was
no allotment order at all.
5. On the other, the defendant Nos.1 and 2 in their
written statement had pleaded that they are the rightful owners
of the suit land. The suit land was allotted in favour of them and
Record of Right(RoR), i.e. the Khatian also was prepared in their
names. That Khatian was never challenged by the plaintiff.
5.1. Being the owner by dint of the said allotment of the
land, they sold out the suit land to the defendant No.3, after
receipt of sale permission on 02.06.2015 from DM & Collector,
Khowai, Tripura.
5.2. The defendants also denied the possession of the
plaintiff over the suit land since the plaintiff being an army
personnel used to remain outside the State of Tripura and he
was never seen in and around the suit land during the last
40(forty) years. More so, after his retirement, the plaintiff was
residing at Agartala and not in the suit land.
6. On the basis of the pleadings, the learned trial Judge
had framed issues and on the basis of issues, evidence was
recorded as adduced by the parties.
7. After completion of recording evidence, learned trial
Judge heard the arguments advanced by the learned counsels
appearing for the parties and ultimately, he dismissed the suit of
the plaintiff.
8. The plaintiff preferred an appeal before the learned
District Judge, Khowai, who also dismissed the appeal.
Hence, this second appeal before this Court.
9. At the time of admission of the present appeal,
following substantial question of law was formulated:
"(1) Whether the findings of both the learned Courts
below in regard to cancellation of the allotment order is
perverse?"
10. I have heard Mr. S.M. Chakraborty, learned senior
counsel, assisted by Mr. Ranjit Debnath, learned counsel
appearing for the appellant. I have also heard Mr. Kousik Roy
and Mr. G.S. Bhattacharjee, learned counsels appearing on
behalf of the respondents.
11. Mr. Chakraborty, learned senior counsel has
submitted that the defendant Nos.1 and 2 had failed to produce
any allotment order. Only they have produced the Record of
Right(RoR) prepared in favour of them. So, according to learned
senior counsel, there is no foundation of the preparation of
Record of Right, i.e. the Khatian.
11.1. Yet another submission, learned senior counsel has
made, is that the defendants had never possessed the suit land
and the plaintiff has been possessing the suit land for over
40(forty) years. On inquiry, it is further revealed that the
plaintiff has been in possession and not the defendants, and on
the basis of that inquiry report, the Sub-Divisional Magistrate,
Teliamura, Khowai District vide order dated 26.04.2016 had
cancelled the allotment order(Exbt.II).
11.2. Learned senior counsel appearing on behalf of the
plaintiff has also criticized the judgment of the Courts below on
the ground that the Courts below had erroneously observed that
since the plaintiff could not produce the sale deed which he
prayed for cancellation, the suit was dismissed.
11.3. Learned senior counsel has tried to persuade this
Court that it is an admitted position that the defendant Nos.1
and 2 themselves had introduced the sale deed and brought it
into evidence, which was marked as Exbt.B in course of trial.
12. On the other hand, Mr. Kousik Roy and Mr. G.S.
Bhattacharjee, learned counsels appearing on behalf of the
defendant-respondents, denying the contentions as advanced by
the learned senior counsel appearing for the plaintiff, have
submitted that the Khatian was opened in the name of the
defendant Nos.1 and 2 vide allotment case No.152 dated
29.11.1990 and at column No.15, the classification of the land
has been described as 'allottee', which would be used for the
purpose of 'agriculture', as stated at column No.16 of the said
khatian. At column No.13, the names of the defendant Nos.1
and 2 have been shown as 'allottee'.
12.1. Arguing further, learned counsels appearing for the
defendants have submitted that the suit land has been
possessed by them and the Sub-Divisional Magistrate had no
authority to cancel the allotment order since he did not issue the
allotment order and it was virtually issued by the then Collector,
West Tripura District under which the suit land situates.
13. I have given my thoughtful considerations to the
submissions advanced on behalf of the learned counsels
appearing for both the parties.
14. Possession is a question of fact. Both the Courts
below held that the plaintiff has failed to prove his possession
over the suit land. Question strikes my mind, had the plaintiff
been in possession of the suit land for the last 40(forty) years,
then, why record of right has not been created in his name,
though so many settlement operations underwent by that time.
15. After perusal of the findings of the learned First
Appellate Court, it is not clear whether the plaintiff has been
able to establish his possession over the suit land.
It is submitted by learned senior counsel that though
the plaintiff did not possess the land physically, but, it is his
clear assertion that he planted so many valuable trees over the
suit land.
16. After perusal of the evidence on record and the
pleadings, I am unable to arrive at a finding that the plaintiff has
been able to rebut the presumptive value of Khatian No.2552,
prepared in favour of the defendant Nos.1 and 2 as allotted in
the year 1990, which suggests that the defendant Nos.1 and 2
are the allottee having right, title and interest over the suit
property and also possession lies with them.
17. Another important aspect is that the allotment was
given by the then Collector, West Tripura, but, the Sub-
Divisional Magistrate has initiated a proceeding and cancelled
the allotment order, which is unauthoritative in law. More so, the
Khatian was prepared after observing four initial stages, as
contemplated under TLR & LR Act and thorough enquiry was
made before making any allotment of land in favour of the
defendant Nos.1 and 2.
18. It is settled proposition that allotment made in
favour of a person cannot be cancelled on the application of a
third party. It is the duty of the Collector who allots the land in
favour of a person to cancel the said allotment order, if the
State does not achieve its purpose. Now it is well established in
this Court that even if Collector wants to cancel the allotment
granted to a person for a land, it has to be cancelled within a
reasonable period of time and the reasonable period of time is
three years as settled in a judgment rendered by a Division
Bench of this Court in Writ Appeal No.4 of 2015 reported in
2015 SCC OnLine Tri 621.
In the case at hand, the allotment order has been
cancelled unathoritatively by the Sub-Divisional Magistrate in
the year 2016, though the suit land was allotted in the year
1990 in favour of the defendant Nos.1 and 2. On this score
alone, the cancellation of allotment order is illegal and void ab
initio being contrary to law.
19. In the light of above discussions and the view
expressed by this Court, I find no merit in the instant appeal.
The substantial question of law is answered accordingly.
20. Consequently, the instant appeal stands dismissed.
However, there shall be no order as to costs.
JUDGE
