Smt. Arpana Malakar @ Aparna ... vs Sub-Divisional Magistrate
2022 Latest Caselaw 231 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA

                                 RSA 52 of 2018

1. Smt. Arpana Malakar @ Aparna Malakar
   daughter of Late Jitendra Chandra Malakar,
2. Smt. Kalpana Malakar
   daughter of Late Jitendra Chandra Malakar,
   W/o. Sri Parimal Malakar,
3. Smt. Jamuna Malakar
   daughter of Late Jitendra Chandra Malakar,
   W/o. Sri Bidhan Chandra Malakar,
4. Smt. Kanika Malakar
   daughter of Late Jitendra Chandra Malakar,
5. Sri Jyotish Chandra Malakar @ Jyotish Malakar
   son of Late Jitendra Chandra Malakar,
   All are residents of Village - Durgapur,
   P.O. - Paiturbazar, P.S. and Sub-Division - Kailashahar,
   District - Unakoti, Tripura.
6. Smt. Rekha Chakraborty
   daughter of Late Anil Chakraborty,
   W/o. Sri Haripada Chakraborty,
   Resident of Village - Durgapur,
   P.O. - Paiturbazar, P.S. Kailashahar,
   District - Unakoti, Tripura.
7. Sri Jishu Chakraborty
   S/o. of Late Anil Chakraborty,
   of Village - Durgapur, P.O. - Paiturbazar,
   P.S. Kailashahar, District - Unakoti, Tripura.

                                                          -----Appellant(s)

                                     Versus

1. Sub-Divisional Magistrate
   Kailashahar, District - Unakoti, Tripura.
2. The District Collector
   Unakoti District, Gournagar,
   P.O. - Gournagar, Sub-Division - Kailashahar,
   District - Unakoti, Tripura.
3. The State Of Tripura
   Represented by the Principal Secretary,
   Government of Tripura,
                                 Page 2 of 11


Department of Revenue,
having his office at Secretariat Complex,
P.O. -Kunjaban, P.S. - New Capital Complex,
Sub-Division - Agartala, District - West Tripura.

                                                      -----Respondent(s)

For Appellant(s)                    :   Mr. S. Lodh, Adv.
For Respondent(s)                   :   Mr. D. Bhattacharjee, GA.
                                    :   Mr. P. Saha, Adv.
Date of hearing                     :   17.02.2022.
Date of pronouncement               :   24.02.2022
Whether fit for reporting           :   No.

             HON‟BLE MR. JUSTICE T. AMARNATH GOUD

                            Judgment & Order

This is an appeal under Section 100 of the CPC, 1908 against

the impugned Judgment & Decree dated 12.09.2018, passed by the

learned District Judge, Unakoti Judicial District Kailashahar, in Title

Appeal 3 of 2016, whereby learned District Judge, Unakoti Judicial

District, Kailashahar, reversed the Judgment & Decree dated 30.09.2013

& 01.10.2013 respectively, passed by the learned Civil Judge, Senior

Division, Kailashahar, North Tripura District Judiciary in Title Suit No.23

of 2011.

[2] The short of the plaintiffs' case (the appellants herein) is that

the land measuring 0.791 acres of khatian no.4940 under Kailashahar

mouja pertaining to Old C.S Plot No.7398(p) corresponding to R.S. Plot

No. 7180 totaling land measuring 0.426 acres and pertaining to CS Plot

No. 7403 corresponding to RS Plot No.7186 totaling land measuring

0.365 described in the 1st schedule in the suit land of this suit. The land

measuring 0.100 acres described in 2nd schedule was sold to plaintiff

nos.6 and 7 by plaintiff no.s 1 to 5 and their deceased mother Maya Rani

Malakar. The land measuring 0.691 acres described in 3rd schedule is the

remaining land in the hand of plaintiff nos. 1 to 5. The plaintiff nos. 1 to 5

are the sole and ultimate legal heirs of their deceased parents Jitendra

Chandra Malakar.

[3] Originally the suit land along with other land was owned and

possessed by one Jogendra Chandra Malakar on the strength of auction

purchase vides auction certificate case No.113 of 1345 T.E issued by

competent authority of then Govt. of Tripura. The said Jogendra Chandra

Malakar died leaving behind him 3 sons namely (1) Jotindra Chandra

Malakar, (2) Jitendra Chandra Malakar, (3) Digendra Chandra Malakar,

and two daughters namely - (1) Pravashini Malakar and (2) Raj Moni

Malakar. On the death of said Jogendra Chandra Malakar, his above said

legal heirs became sole owners of the suit land and other land left by

him. The two daughters of deceased Jogendra Chandra Malakar gifted

their shares of the land including suit land left by Jogendra Chandra

Malakar to their three sons of Jogendra Chandra Malakar executed and

effected regular partition of the land left by their father amongst

themselves vides Registered partition deed No. 1-1436 dated

16.05.1983. In that partition, the suit land along with other land fell to

the exclusive share of Jitendra Chandra Malakar and on his death the

present plaintiff Nos. 1 to 5 being daughters and sons became exclusive

owners and possessors of the suit land and other land.

[4] Thereafter, Smt. Aparna Malakar and 6 (six) others have filed

the suit against Sub-Divisional Magistrate, Kailashahar Sub-Division,

Unakoti District & 2(two) others for declaration of right, title and interest

and confirmation of possession over suit land.

[5] The appellant filed the suit in the trial court for recovering of

possession of the following schedules.

1st Schedule (suit land)

District-north Tripura PS Kailashahar, Tehshil - Kailashahar. Mouja - Kailashahar, Khatian No 4940.

I) Old C.S Plot No. 7398/(part) (corresponding R.S Plot No. 7180, Class- Nal, Area - 0.426 acres.

II) Old C.S Plot No. 7403 Corresponding RS Plot No. 7186, Class-Nal , Area- 0.365 Acre.

Total land area = 0.791 acre.

2nd Schedule (Sold out land)

District- P.S Tehshil- Mouja- Kailashahar, Khatian No. 4940, Old CS Plot No. 7403(part) Corresponding R.S Plot NO. 7186 (part), at the south-western portion of plot. Class-Nal, Area- 0.100 Ac. Begin bounded as below-

North- Land of plaintiff nos, 1/2/3/4/5 South- Land of plaintiff nos, 1/2/3/4/5 East- Land of plaintiff nos, 1/2/3/4/5 West- late kunjabihari Barma & late Bilash Moni Chakraborty.

3rd schedule (Remaining Land)

District, PS, Tehshil, Mouja - Kailashahar, Khatian No. 4940.

I) Old C.S Plot No. 7398, Corresponding RS Plot NO. 7180, Class-Nal , Area - 0.426 Acrs.

II) Old CS Plot No. 7403 (Part), Corresponding RS Plot No. 7186(Part), Class-Nal, Area, 0.235 Acres Total Land area- 0.691 Acs.

[6] In the written statement filed by the defendants (the

respondents herein) it has been stated that plaintiffs counterfeit the

registered instrument of Nani Gopal De, S/o Dwarika Nath De of Chantali

with intention to cause it to be believed that such document was

executed in the office of the Sub-Registry, Kailashahar on 29.06.1981.

Anil Kumar Das, son of late Jatindra Kumar Das executed a sale deed in

favour of Nani Gopal Deb s/o late Dwarika Nath De on 29.06.1981

against the plot No.4111 of Khatian No. 2066 of mouja Kailashahar vides

Registered deed No. 1-2113, dated 29.06.1981 Sl. 2398 , Vol No. 4, SPL

Page232-34. Thereafter, the plaintiff willfully and with intend to defraud

falsifies the registered document of Nani Gopal De and abet the omission

or alteration of particular land from the registered instruments of Nani

Gopal De and inserts valuable Govt. Khas land of plot No. 7186 and khas

plot No. 7180 against Khatian Nos. 1/36 and 1/41 with an area 0.365

acres and 0.426 acres in favour of Jitendra Chandra Malakar, S/o

Jogendra Kumar Malakar and Smt. Maya Rani Malkar. Thereafter the

plaintiffs approached to one Tapan Gupta the then Teshildar of

Kailashahar T. K with an application in the prescribed form no. 21 of the

Act for incorporation in the mutation registers.

[7] After considering the pleadings and submission of both sides,

the trial court has framed the following issues for discussion:

1. Is the suit of the plaintiffs not maintainable in its present form?

2. Whether the suit is barred by law of limitation and other laws?

3. Whether the plaintiffs have their rights, title and interest over the suit land/property?

4. Whether the plaintiffs are in possession of the suit land/property?

5. Are the plaintiffs entitled to get decree, as prayed for?

trial

[8] The trial court by the order dated 28.09.2012 has observed

as follows:

"In view of the above detailed discussion and findings of this court under the above issues, the present suit of the plaintiffs is hereby dismissed with costs. Decree-sheet be prepared accordingly. File be consigned to records."

[9] Being aggrieved and dissatisfied with the judgment and

decree passed in the original suit, the appellant herein preferred an

appeal being case No. Title Appeal No.24 of 2012 in the court of the

District Judge, North Tripura Judicial District, Kailashahar. The said court

by the order dated 11.04.2013 has observed as under:

"15. Hence, judgment and decree passed by the learned trial court are hereby set aside and quashed. The case is remanded back to the learned trial court with the following direction that the learned trial court shall appoint a competent Survey Commissioner with the following writ to decide No.3.

Whether the land purchased in auction by Jogendgra Ch. Malakar vide Ext-series for 10 kanis 6 gandas of mouja- Durgapur of Khas jote No.4 of the following boundary- West and North -Akshar and others, East-Govt. of Tripura, South- Taluki boundary, is the present suit land, ie. Khatian No. 4940, plot No. Sabek - 7403, hal -7186, measuring 0.365 acre, plot No. sabek 7398, hal - 7180, land measuring 0.426 of mouja- Kailashahar?

16. Learned trial court shall enter the case in the Trial Register in its original number and appoint a Survey Commissioner at the cost of the State and shall proceed thereon as per the guidelines of order 26 CPC and shall pass judgment fresh."

[10] The trial court complying the order dated 11.04.2013 of the

lower appellate court re-admitted the suit under its original number in

the register of the Civil suits, and proceeded to determine the suit as per

given direction in the judgment of the appellate court.

[11] When the case was re-admitted by the trial court, in order to

substantiate the claims of the appellants herein, Smt. Aparna Malakar,

Sri Dwijendra Malakar, Sri Satyendra Kumar Chakraborty and Monir Ali

have examined themselves as PW-1, 2, 3 and 4 respectively and also

submitted several documents in support of their claim and marked them

as Exhibit 1 to 17 series.

[12] On the other hand, defendants Chandra Krishna Malsom and

Smt, Namita Sen Gupta have examined themselves as DW1 and DW2

respectively. They have also submitted several documents supporting

their claim and marked them as Exbt-A-E series.

[13] While perusing the report of Survey commissioner, the trial

court by the order dated 30.09.2013 has observed as follows:

"Mr. Basanta Kumar Das, the aforesaid Commissioner, after local inspection by surveying returned and submitted his report in writing and signed by him, to the Court. The court after receiving the report in writing dated 27-08-2013 of the commissioner invited the both the parties to put objection, if any from their part against the report. Neither party put objection against the report in spite of opportunity given them. Accordingly, the court scrutinized the report carefully as to whether the investigation was in conformity with the writ or not. The Court in his considered view found the report being the investigation by survey had been conducted in conformity with the spirit of the „WRIT‟ issued by the Court, and accordingly accepted the same and marked Ext.C-1 without examination the Commissioner."

[14] While deciding the issue No. 3, the trial court has observed

that the auction purchase certificate Ext.4 series is the document of title

and it being a document of 30 years old is admissible in evidence under

Section 90 of the Evidence Act. This Ext.4 series clearly shows that the

predecessor of the plaintiffs had purchased the lands embodied in the

Certificate. There is no dispute that parties are the successors of the

purchaser of the land of document Ext.4 series. Therefore, since the suit

lands fall within the boundaries of the land purchased vide document Ext.

4 series and since the said Auction purchase certificate is the document

of title and latter on the land of the Ext.4 series was partitioned, an

irresistible conclusion is that plaintiffs have their title over the suit lands.

Resultantly, this issue is decided in favour of the plantiffs.

[15] The trial court after having examined all the records so

placed in the plaint and also after examining the written statement filed

by the defendant-appellant, depositions of PWs and DWs in support of

the claim, has observed by the judgment dated 30.09.2013 as herein

under:

"In view of the above detailed discussion and findings of this court under the above issues, the present suit of the plaintiffs is hereby decreed without costs and on contest. The rights title and interest of the plaintiff nos. 1 to 5 over the suit land of 3rd Schedule and the Rights, title and interest of the plaintiff nos. 6 and 7 over the land of 2nd Schedule are hereby declared. The plaintiffs, possessions over their respective lands of 3rd and 2nd schedule are also hereby confirmed. The defendants, their men and agency are hereby perpetually restrained from interfering with the respective possessions of the plaintiffs over the lands of 3rd and 2nd schedules.

[16] Being aggrieved and dissatisfied with the judgment and

decree dated 30.09.2013 passed in the Title suit No. 23 of 2011 , the

respondents herein preferred an appeal being case No. Title Appeal No.3

of 2016 in the court of the Unakoti District Judge, Kailashahar. The said

court has observed by the order dated 12.09.2018 as herein under:

"On my perusal of the entire case record of the trial court I find that the land in question was purchased by Jogendra Chandra Malakar in the year 1347 TE. It is not clear from the record when said Jogendra Chandra Malakar died. It is also not explained what was the position of the land after coming into force of the TLR & LR Act in the year 1960 admitted case of the present respondents is that in the year 2006 the suit and was recorded in their names under new Khatian No. 4940 for land measuring 0.791 acres. Though it is explained in the original plaint that in the year 1983 there was partition of the suit land among the three sons of Jogendra Chandra Malakar and it was registered but after that partition the suit land was not recorded by them in the revenue records.

....

Hence, in my considered view the findings of the trial court in deciding the aforesaid issue is found to be unjustified.

In consequence, it was ordered by the appellate court by the

order dated 12.09.2018 as herein under:

"In the light of my above discussion, the appeal preferred by the appellants is allowed setting aside the judgment and decree dated 30.09.2013 passed in TS 23 of 2011 by the Ld. Civil Judge (Sr. Div) Kailashahar."

[17] Being aggrieved by the said judgment and decree of the first

appellate court dated 12.09.2018, the appellant herein has preferred this

instant appeal under Section 100 of the CPC. At the time of admitting this

appeal, the following substantial question of law was framed by this court

by the order dated 20.12.2018.

1) Whether the Judgment & Decree of the Learned First Appellate Court is perverse?

2) Whether the learned First Appellate Court was legally correct in interfering with the report of the survey commissioner (Exbt.C1) in absence of any challenge by defendant-respondent.

3) Whether without complying with the provisions of Order XXVI Rule 10(2) and Rule 10(3) of the CPC learned First Appellate Court below was correct in setting aside the Judgment & Decree of the learned Trial Court?

[18]       Heard counsel for the parties.

[19]       It is the case of the appellant that his predecessors

purchased the property vide registered sale deed by way of an auction

from the government and subsequently from him the respondents

purchased the property. Since then he has uninterrupted possession.

When the appellant went for the correction of records and the

government said it was the land of government and at that juncture, he

filed a suit. The suit was decreed accordingly. Aggrieved thereby the

appellant-plaintiff moved to the appellate court and the appellate court

remanded back the case setting aside the judgment and decree dated

28.12.2012. Thereafter, when the trial court complying the order of the

appellate court re-admitted the matter, the same has been decreed

relying on the survey commissioner's report. The said survey

commissioners report was not opposed and no objection were filed since

the same has been accepted and the trial court has decreed the suit in

favour of the appellant-plaintiff. In the appeal filed by the state, the

appellate court has not relied the survey commissioner's report and has

raised serious doubts on the issues which were not before the trial court

and the trial court and he has set aside the judgment and the decree and

allowed the appeal by the order dated 12.04.2016. Aggrieved thereby the

present appeal is filed. Mr. S. Lodh, counsel for the appellants thus

therefore prayed for upholding the lower court judgment and decree and

set aside the same since the same is perverse.

[20] Mr. D. Bhattacharee, GA in his reply to the contention as

advanced by the counsel for the appellant that the land in question is not

the piece of land which was auction by the government in favour of the

appellant-plaintiffs. He further prayed that a thorough investigation with

regard to the land in question be made enabling the competent authority

to decide the matter on its merit.

[21] At this juncture, this court is of the view that over the years

with the changing circumstances in the government and the revenue

department with regard to the records and change in numbers, the

identity of the property has become the main issue.

[22] In view of the same, this court feels that it is just and proper

to allow the appeal setting aside the order of the lower appellate court

and remand the matter back to the lower appellate court to re-examine

the matter on the strength of its evidence and merits and also given an

opportunity to the plaintiff for filing application seeking to conduct survey

and identify the land which has been auctioned by the government in

favour of the predecessors of the plaintiff and mark boundaries and

receive the report in this regard. On receipt of such report, the lower

appellate court shall decide the matter on merit in accordance with law.

This exercise by the appellate court shall be completed within a period of

six months.

Accordingly, the appeal stands disposed of with above

observations.

JUDGE

Dipak