Sri Amiyanshu Sharma vs Sri Matilal Dey
2022 Latest Caselaw 168 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                           RSA 26 OF 2019
1.Sri Amiyanshu Sharma,
S/o Late Anil Krishna Sharma.

2.Sri Amitabha Sharma,
S/o Late Anil Kumar Sharma

3.Sri Ashok Sharma,
S/o Late Anil Krishna Sharma.

All are of Office Tilla, PO & PS-Dharmanagar,
District-North Tripura.

4.Smt. Ashima Sharma Mohanta,
S/o Vivekananda Mohanta, D/o Late Anil Krishna Sharma of
Settlement Road, PO & PS-Karimganj, District-Karimganj,
Assam.

5.Sri Amarendra Sharma,
S/o Late Arun Chandra Mohanta (Sharma) of Office Tilla,
PO & PS Dharmanagar, Dist. North Tripura.

6.Sri Anukul Krishna Sharma,
S/o Late Arun Chandra Mohanta (Sharma) of Shibbari,
PO & PS Dharmanagar, District-North Tripura.
                                                           ---- Appellant.
                                   Versus

Sri Matilal Dey,
S/o Late Mon Mohan Dey of East Chandrapur,
P.O. Chandrapur, P.S. Dharmanagar,
District-North Tripura.
                                                          ---Respondents.

2A. Utpal Sharma 2B. Shyamal Kanti Sharma Page - 2 of 16

2C. Nirmal Kanti Sharma 2D. Bimal Kanti Sharma.

All are S/o Lt. Amal Krishna Sarma of Office tilla, PO & PS Dharmanagar, Dist. North Tripura.

2E Smt. Anita Sharma, D/o Amal Krishna Sarma W/o Samarendra Sarma of Kazirgone, PO & PS Kailashahar, Dist. Unakoti, Tripura.

Proforma-respondents.

For Appellant(s) : Mr. Sankar Bhattacharjee, Advocate.

For Respondent(s)           : Mr. Sankar Lodh, Advocate.

Date of hearing &
delivery of Judgment and order : 14.02.2022

Whether fit for reporting         : Yes

             HON'BLE MR JUSTICE ARINDAM LODH
                       Judgment & Order (Oral)

This second appeal arises out of the judgment and decree

dated 01-02-2019 and 02.02.2019 respectively, passed by learned District

Judge, North Tripura, Dharmanagar, in connection with Title Appeal

No.13 of 2017 whereby and whereunder the appellate court had dismissed

the judgment and decree dated 28.01.2017 and 31.01.2017, passed in

connection with TS (eviction) No.03 of 2016, passed by learned Civil

Judge, Sr. Division, Dharmanagar, North Tripura.

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2. Brief facts:

2.1 The suit is concerned about a land measuring 0.804 acres

mentioned in the schedule of the plaint. The claim of the plaintiff-

appellants [here-in-after referred to as "plaintiffs"] s is that their father, late

Arun Chandra Mohanta (Sharma) was the original owner of the suit land.

The record of right was also created in his favour. After his death the

record of right i.e. Khatian was created in the name of his legal heirs i.e.

plaintiffs herein. It is the case of the plaintiffs that the defendant was

residing nearby the suit land who was familiar to the plaintiffs. Since the

plaintiffs were not residing over the suit land, they requested the defendant

to look after the entire property on their behalf. But, when on 15.12.2015,

son of plaintiff no.1, Amiyangshu Sarma went to the suit land along with

his workers for raising boundary fencing in the suit land, the defendant

made obstruction and threatened him with dire consequences. Therefore,

the plaintiffs instituted the present suit for declaration of right, title and

interest and recovery of possession of the suit land. One of the plaintiffs of

the original suit, namely, Anil Krishna Sharma, being died, was substituted

by his legal heirs, i.e. the appellant nos. 1, 2 and 3 in the present second

appeal.

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2.2 The defendant-respondent [here-in-after referred to as the

defendant] contested the suit and on the merit of the case he contended that

originally the suit land was recorded under Khas Taluk No.77 of town

mouja pertaining to C.S. Plot No.615 under Khatian No.345 of mouja

Dharmanagar in the name of deceased Uttara Dey. Said Uttara Dey

transferred the suit land along with other lands by registered gift deed vide

no.1-7120 dated 21.11.1970 in favour of Kiran Bala Dey, since deceased,

and her name was recorded as owner-in-possession (Khas Taluk) and had

been possessing the suit land during her life time along with her son

Mohanta Dey alias Deb and defendant Matilal Dey. After the death of

Kiran Bala Dey, the defendant Matilal Dey possessed the suit land

continuously without any interruption.

3. After exchange of pleadings, learned trial court framed the

following issues:

(i) Whether the suit is maintainable?

(ii) Whether plaintiff has right, title and interest or any share over the suit land?

(iii)Whether Uttara Dey since deceased was the original owner of the suit land?

(iv)Whether the registered gift deed No.1-7120 dated 21-11-1970 executed by Uttara Dey since deceased in favour of Kiran Bala Dey is valid, lawful and biding upon plaintiffs?

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(v) Whether on 15-12-2015 at 11 a.m. defendant dispossessed the plaintiffs from the suit land?

(vi) Whether there is cause of action in the suit?

(vii) Whether plaintiffs are entitled to get the decree of declaration of their right, title and interest over the suit land along with recovery of Khash possession?

(viii) Whether plaintiffs are also entitled to get mesne profit at the rate of Rs.1000/- per day w.e.f. 15-12-2015 from defendant and cost of the suit?

4. During trial, the plaintiffs examined as many as three

witnesses and tendered 4 (four) nos. of documents. Defendant examined as

many as three witnesses and tendered 6 (six) nos. of documents in support

of his case.

5. Learned trial court after hearing the parties to the lis and

considering the evidence and materials on record decided issue nos. I, II,

V, VI and VII assertively in favour of the plaintiffs i.e. the appellants

herein and issue nos. III and IV decided negatively against the defendant

and ultimately, the suit was decreed in favour of the plaintiffs.

6. Challenging the said judgment and decree, the defendant

preferred first appeal before the court of learned District Judge, North

Tripura, Dharmanagar. The first appellate court formulated the following

points for determination:-

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"(i) Whether the learned court below has decided all the issues of the suit after proper appreciation of evidence on record?

(ii) Whether the judgment and decree of the learned court below is liable to be interfered with? If so, to what extent?"

7. Having heard the arguments of learned counsels appearing for

the parties and considering the evidence and materials on record, learned

first appellate court held that "the findings of fact recorded by learned trial

court are perverse and issues are not decided on proper appreciation of

evidence on record. The findings of the learned court below are liable to

be set aside."

8. I have gone through the judgment passed by learned trial

court as well as the learned first appellate court. Learned trial court had

decreed the suit primarily on the basis of the record of right [Khatian

no.1788, Exbt.1] created in the name of Arun Chandra Mohanta, the father

of the plaintiffs. After the death of their father, the suit land (Exbt.3) has

been recorded in the names of the plaintiffs. Learned trial court held that

the defendant had failed to establish the fact of gift deed as well as the

Will. Ultimately, learned trial court had passed the following order:-

"35. In the result, it is hereby held that the plaintiffs have succeeded to establish the cause of action for the suit against defendant and the suit is allowed and decreed with cost with declaration that plaintiffs No.1 to 4 have right, title and interest on the suit land.

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Plaintiffs are entitled to get recovery of the vacant possession of the suit land.

36.Defendant is hereby directed to vacate the suit land and hand over its vacant possession in favour of the plaintiffs within 45 days from this date.

37.Plaintiffs are not entitled to get the decree for realization of mesne profit in respect to the suit land from the defendant.

38.Prepare decree accordingly and place it before me for signing within 14 days."

9. Learned first appellate court while appreciating the evidence

and materials on record did not dispute the genuinity of the creation of

record-of-right ("ROR") in favour of the plaintiffs in regard to the suit land

as held by learned trial Court. Learned first appellate court also discarded

the evidence in regard to gift deed and Will as the defendant tried to

project his case to support his title over the suit land. However, learned

first appellate court held that revenue record is not a document of title and

it merely raises a presumption in regard to possession which is rebuttable.

Learned first appellate court further held that the presumption is read under

Section 114 of the Evidence act and applies only in a case where there is

either no proof or every little proof of ownership on either side. Learned

District Judge further came to a finding that it is true that presumption of

title as a result of possession can arise only where facts disclosed that no

title vests to any party. In his finding, learned first appellate court observed Page - 8 of 16

that -"Both the parties failed to show/prove their apparent title over the

suit land by document of title." Ultimately, learned first appellate court

held that the decree declaring right, title and interest of the plaintiffs over

the suit land is contrary to settled law and the plaintiffs could not prove

their title over the suit land. Thereafter, learned first appellate court held

that the plaintiffs in nowhere in their plaint averred as to from when the

defendant had been permissive possessor of the suit land. In his reversal

judgment, learned Judge observed that the plaintiffs were silent as to how

their father had owned that property. Learned Judge had given much

emphasis on the statements of the plaintiff no.1 who adduced evidence as

PW-1 in respect of the fact that in his cross-examination, PW-1 stated that

he heard that their father had sold out the suit land in favour of the original

owner of the suit land. Ultimately, learned first appellate Court held that in

absence of any document of title, the declaration of title in favour of the

plaintiffs by the learned trial Court on the basis of Khatians [Exbt.1 and 3],

was contrary to the established legal position and dismissed the suit of the

plaintiffs reversing the judgment passed by the learned trial court.

10. Being aggrieved by and dissatisfied with the said judgment

and decree passed by learned first appellate court, the plaintiffs have Page - 9 of 16

preferred the present second appeal. At the time of admission of the

appeal, following substantial question of law had been formulated:-

"Whether the learned first appellate court committed error of law ignoring the Rayati right of the plaintiffs as recorded in Col. No.6 in Khatian No.1788, Exbt.1 & 3 respectively."

11. I have heard Mr. Sankar Bhattacharjee, learned counsel

appearing for the plaintiff-appellants and Mr. Sankar Lodh, learned

counsel appearing for the defendant-respondent.

12. Mr. Bhattacharjee, learned counsel has submitted that the

findings of learned first appellate court are erroneous and not tenable in

law and the same is liable to be dismissed. Mr. Bhattacharjee, learned

counsel has submitted that learned first appellate court held that both the

parties had failed to establish their title over the suit property. In that event,

learned first appellate court ought to have considered the evidentiary value

of Khatians in absence of any better evidence regarding title over the suit

property.

13. Opposing the said submissions of Mr. Bhattacharjee, learned

counsel appearing for the plaintiffs, Mr. Lodh, learned counsel appearing

for the defendant has contended that it is the established law that plaintiff Page - 10 of 16

is to prove his own case. According to Mr. Lodh, learned counsel, the

plaintiffs have failed to prove their own case for the reason that PW-1, one

of the legal heirs of late Arun Chandra Mohanta adducing evidence as PW-

1 in his cross-examination stated that he heard that his father had

transferred the land in favour of the original owner whose land was

auctioned. Mr. Lodh, learned counsel appearing for the defendant contends

that the plaintiffs could not establish the fact of auction purchase under

which the father of the plaintiffs had acquired title over the suit land as

auction purchaser. Learned counsel for the defendant has emphatically

supported the findings of the learned first appellate court that Khatian does

not confer any right, title and interest over any person. Mr. Lodh, learned

counsel to justify his submission has tried to persuade this court that the

defendant had been able to rebut the presumptions as contemplated under

Section 43(3) of the TLR and LR Act in regard to Khatian i.e. ROR.

Learned counsel for the defendant further contends that the plaintiffs could

not disclose the fact that when the defendant had taken over the possession

of the suit land. Based on the aforesaid submissions, Mr. Lodh, learned

counsel has prayed for affirming the judgment and decree passed by

learned first appellate court dismissing the suit of the plaintiffs.

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14. I have given my thoughtful consideration to the submissions

advanced by learned counsels appearing for the parties. Before I advert

into the merits of the case, I like to have a look at Section 43 of TLR and

LR Act, which reads as under:-

43. Publication of the record of rights.--(1) When a record of rights has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publication, to any entry therein or to any omission therefrom.

(2) When all objections have been considered and disposed of in accordance with the rules made in this behalf, the survey officer shall cause the record to be finally published in the prescribed manner.

(3) Every entry in the record of rights as finally published shall, until, the contrary is proved, be presumed to be correct.

15. Under this provision, a person by way of creation of Khatian

is declared as "Rayat". Rayat is defined in the Act itself. It means the

person who owns the land. I have no difference of opinion that a Khatian

being created in compliance with the provision under Section 43 of TLR

and LR Act is not a document of title. However, it is settled by a catena of

decisions of this court that the correctness of record-of-right being finally

published has a presumptive value until the contrary is proved i.e. until the

said presumption is rebutted by way of laying cogent evidence. Section 35

of the Evidence Act postulates that entry in the record of right is Page - 12 of 16

admissible in evidence. It is now well settled that the finally published

Khatian must be construed to have authenticity as to the possession of the

plaintiffs over a certain land in dispute. Furthermore, every entry in the

record-of-right is presumed to be correct and burden is on the defendant to

prove the contrary in the trial.

16. Now, I am to decide whether the defendant has been able to

rebut the presumption of Khatians created in favour of the plaintiffs. It is

seen that the defendant had tried to establish his title over the suit land by

dint of a registered gift deed and the Will. Both the courts after

appreciating the facts on those two documents held that the defendant had

failed to prove the gift deed as well as the Will. It is not the case of the

defendant that he acquired right, title and interest over the property by way

of adverse possession. His claim is based on title. But, acquisition of such

title by dint of the gift deed and the Will had been rejected by both the

courts below. The submission of learned counsel for the respondent that

PW-1 himself stated that he heard that his father had sold out the property

to the original owner of the suit land and that PW-2 stated that he could not

say whether the suit land was sold by his father to the original owner. I am

of the opinion that these statements made during their cross-examinations

have no evidentiary value because the statement of PW-1 is hit by Section Page - 13 of 16

60 of the Evidence Act which provides that oral evidence must, in all

cases, be direct. Here, the statement of PW-1 during cross-examination

was not based on his personal knowledge, but, what he heard from others

is hearsay evidence and such evidence is inadmissible.

17. In the case in hand, what is before the court is the khatian i.e.

ROR which was created in the name of the father and after his death in the

name of his legal heirs. Before preparation of draft Khatian there are four

stages which are to be followed i.e. (1) Dagawari, (2) Khanapuri, (3)

Bhujarat and (4) Attestation (jamabandi). Had the defendant was in actual

possession on the suit land for so many years and having title as he

asserted in his written statement, then, question naturally arises why he did

not approach the revenue authority to create Khatian in his name.

According to this court, that gives an adverse inference against the plea of

the defendant.

18. On the other hand, it is the specific case of the plaintiffs that

when the son of PW-1 had tried to raise boundary fencing around the suit

land, then, the defendant raised objection and that has given rise to cause

of action to institute the present suit. In front of this court, there is no

document of better title than that of the Khatians i.e. the record of right. Of Page - 14 of 16

course, it is a document of presumption. In the record of right, the names

of the plaintiffs have been recorded as Rayats. I reiterate that "Rayat"

means who owns the land. This is also a presumption of ownership of a

person over a piece of land which presumption has to be rebutted by way

of placing better evidence of title, which is absent in the instant suit. Even,

the defendant did not raise any objection during those four stages.

Furthermore, under the scheme of the TLR and LR Act after completion of

the above formalities draft publication is made showing the name(s) of the

owner of the land provisionally. At the time of draft publication, objection

is invited from the persons who had/has any interest or claims over the

property under the draft publication. In other words, interested person(s) if

any, can raise his/their objection against any entries or omissions

mentioned in the draft khatian prepared by revenue authority. After

considering objection, if any, the Khatian i.e. the record-of-right is finally

published.

19. Having taken into consideration of all those factors, it cannot

be said that the defendant has been able to rebut the presumption of

creation of record-of-right in favour of the plaintiffs. As a corollary, I am

unable to agree with the findings of learned first appellate court, and

accordingly, the same is interfered with. The judgment and decree passed Page - 15 of 16

by learned trial court cannot be said to be perverse. Learned first appellate

court misdirected himself in appreciating the evidentiary value of the

Khatians i.e. Exbt. 1 and 3, in absence of any better title in front of him.

However, I like to modify the findings of the learned trial court to the

extent that plaintiffs have been able to establish their right as "Rayat" over

the suit land. In this sense, the plaintiffs are the owners of the land in

absence of any appropriate document of title and in terms of expression

embodied in Section 43(3) of the TLR and LR Act,1960 and accordingly,

ownership over the suit land in terms of Section 43(3) of TLR and LR Act

has been declared in favour of the plaintiffs. On the strength of this

declaration of ownership in favour of the plaintiffs, they are entitled to

recover the possession of the suit land and I confirm/affirm the direction of

the learned trial court asking the defendant to hand over the physical

possession over the suit land within 45 days. I also confirm further

directions as passed by learned trial court.

20. Accordingly, the judgment and decree passed by the learned

first appellate court is set aside and quashed. The judgment and decree, as

stated above, passed by the learned trial court is restored with the

modification as indicated above.

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21. In the result, the appeal, is allowed and disposed of.

22. Prepare the decree accordingly.

Send down the LCRs.

JUDGE

sanjay