Smt. Anjali Debnath vs Sri Ratan Debnath
2022 Latest Caselaw 51 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                           RSA 15 of 2019
        Smt. Anjali Debnath,
        wife of late Suresh chandra Debnath, resident of Housing Board (Chanban),
        P.O. & P.S. R.K. Pur, Udaipur, District- Gomati, Tripura
                                                          ... Plaintiff-Appellant
                      VERSUS
     1. Sri Ratan Debnath,
        son of late Shyam Sundar Debnath, resident of village- Kishoreganj,
        P.O. Kishoreganj, P.S. Kakraban, Udaipur, District- Gomati, Tripura
                                                     ... Defendant-Respondent

2. Sri Prabir Debnath, son of late Shyam Sundar Debnath, resident of Chandigarh, near Hrishi Arabinda Colony, P.O. & P.S. Melaghar, District- Sepahijala, Tripura ... Proforma-Respondent For Appellant (s ) : Mr. B. Banerjee, Advocate For Respondent (s) : Mr. DK Das Choudhury, Adv.

        Date of hearing and delivery     :     17.01.2022
        of judgment order
        Whether fit for reporting        :      No
                  HON'BLE MR. JUSTICE ARINDAM LODH
                    JUDGMENT & ORDER (ORAL)

1. Heard Mr. B. Banerjee, learned counsel for the appellant as well as Mr.

DK Das Choudhury, learned counsel appearing for the respondent no. 1.

2. The present second appeal originates from the judgment and decree

dated 28.02.2019 passed by the learned District Judge, Gomati District,

Udaipur in connection with Title Appeal 21 of 2015 whereby and whereunder

the judgment and decree dated 17.10.2015 and 16.11.2015 respectively passed

by the learned Civil Judge, Senior Division, Gomati, Udaipur in Title Suit 16

of 2011 had been dismissed.

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3. Shortly stated, the appellant in the instant appeal was the original

plaintiff who instituted a suit for declaration of her right, title and interest over

the suit land and for perpetual injunction against the respondent no. 1. It is her

case that she purchased the suit land from respondent no. 2 vide Sale Deed no.

I-495 dated 17.03.2009. After such purchase of the suit land, she had been

possessing the land peacefully. However, in the month of May, 2011, the

defendant-respondent no. 1 had made an attempt to dispossess her from the

suit land and on being threatened of such dispossession, she instituted the

present suit, particularly, against the respondent no. 1 to protect her title and

possession.

4. Being summoned, the respondent no. 1 appeared and filed written

statement. It is pertinent to mention herein that the brother of the plaintiff i.e.

respondent no. 2 (vendor of the Sale Deed dated 17.03.2009) did not appear

despite receipt of summon, and hence, did not contest the suit. The respondent

no. 1 denied that the plaintiff had acquired right, title, interest and possession

over the suit land. After exchange of pleadings, issues were framed.

Thereafter, on the basis of the issues, evidences were recorded by both the

plaintiff and the respondent no.1.

5. Interestingly, the respondent no. 1 while adducing evidence have

produced respondent no. 2 i.e. vendor of the Sale Deed dated 17.03.2009 as

his witness. During his deposition, respondent no. 2 from whom the plaintiff

had purchased the suit land, adduced that he did not sale the suit land to the Page 3

plaintiff. After completion of recording evidences and having heard learned

counsel appearing for the parties to the lis, the learned trial court had decreed

the suit in favour of the plaintiff declaring her right, title and possession,

confirming her possession and injuncting the respondents herein from

interfering with her peaceful possession over the suit land.

6. Being aggrieved, the respondent no. 1 herein, had preferred first appeal

before the court of learned District Judge, Gomati District, Udaipur. The

learned District Judge setting aside the judgment and decree passed by the

learned trial court in favour of the plaintiff, remanded the case to the court of

learned Civil Judge, Senior Division, Gomati, Udaipur after framing an issue

to determine the nature of possession of the plaintiff over the suit land. The

issue framed by the learned District Judge while remanding the appeal to the

learned trial court is as under:-

"Whether the plaintiff was/is in possession of the suit land and if so, by what act of possession."

7. Being aggrieved by and dis-satisfied with the said judgment and decree,

the original plaintiff has preferred the instant second appeal before this court.

8. I have perused the judgment passed by the learned trial court as well as

the learned appellate court.

9. I have considered the substantial questions of law formulated by this

court. The substantial questions of law, as formulated by this court, read as

under:

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"(i) Whether the first appellate court is correct in reversing the finding returned by the trial court on appreciation of the evidence as recorded without providing the analogy?

(ii) Whether the order of remand is tenable inasmuch as the possession of the suit land cannot be held material on the controversy projected in the suit?"

10. On the aforesaid substantial questions of law, I have reappreciated the

evidences on record. I have given my thoughtful consideration to the findings

of the learned appellate court while remanding the suit to the learned trial

court after framing the above stated issue.

11. It has come to light that the learned appellate court has returned a

finding in his judgment wherein he has confirmed the proof of the Sale Deed

no. I-495 dated 17.03.2009 by dint of which the respondent no. 2 transferred

the suit land to the plaintiff. The learned first appellate court has observed as

under:

"16. As regards the pleadings of the plaintiff about the defendant No. 1 & 2 being the joint owners of the "A" schedule land, the Ext. A i.e. the Khatian No. 1843/1 shows clearly that both Ratan Debnath and Prabir Debnath were the joint owners of the land measuring 2.82 acre in equal share. It also appears from the pleadings and evidence of the plaintiff that she purchased land measuring 1.19 Acre from pro-defendant No.2 vide registered deed of purchase no.1-495 dated 17.03.2009. However, the case of the plaintiff is that some how she lost the original deed No.1-495 dated 17.03.2009 while coming to Court from her residence at Chanban. In this connection she has adduced the Ext.C i.e. the copy of GD Entry which she made to the police after the original deed got missing. Accordingly, the plaintiff has proved the certified copy of the deed No.1-495 dated 17.03.2009 as Ext.6 by producing the volume book through the staff of the Sub-Registry Office, Udaipur i.e. PW.2 namely, Binay Debbarma.

17. PW.2, Mohrar in the office of the Sub-Registry office at Udaipur, deposed that the sale deed was entered into between Anjali Debnath and Prabir Debnath and it was given in favour of Anjali Debnath as the buyer. He proved the certified copy of the sale deed as Exbt.6.

18. As regards the missing of the original sale deed no.1-495 dated 17.03.2009 from the custody of plaintiff and production of its certified Page 5

copy, also I find the Trial Court has rightly held that as per Section 65(c) of the Evidence Act if the original document has been lost and it is proved before the Court, the Court can admit secondary evidence as proof of the contents of the document. Hence, I am of the view that there is no legal infirmity in so far as the plaintiff has adduced the certified copy of the original deed by following the rule evidence. In cross-examination of the PWs by the defense also nothing has come out to demolish the evidentiary value of the certified copy of the sale deed as adduced by the plaintiff.

But I fail to understand how somebody can lose his or her original title deed so easily while coming to the court from residence. Had it been a case of fire or any other natural calamity, theft, dacoity etc., things would have been different. But that is not the case with the plaintiff. According to her she lost the original title deed while coming to the from her residence which is not far away from the court. Therefore, some way or the other there seems to be a question mark."

12. Having recorded the above findings, the learned appellate court

suddenly has doubted the story of missing of the Sale Deed, as tried to be

projected by the plaintiff in her suit. In my opinion, the learned appellate court

has shifted from the main controversy which has arisen from the facts averred

in the plaint. From the judgment of the learned trial court, it is clear that the

plaintiff had proved her possession. It is her plain case that sometime in the

month of May, 2011, the respondent no. 1 had tried to dispossess her from the

suit land. Moreso, there is well known maxim that possession follows title. In

the Sale Deed, it is clearly written that the respondent no. 2 after execution of

the Sale Deed had handed over the peaceful possession of the suit land to the

plaintiff. There is no evidence as let in by the respondent-defendant no. 1 that

she was dispossessed from the suit land at any point of time. The respondent

no. 2 only has stated in his evidence that he did not sale the suit property to

the plaintiff. Both the courts held that the plaintiff has been able to prove her Page 6

title over the suit property and in regard to the execution and registration of

the sale deed. So, there is no question of raising any doubt over the execution

and registration of the said Sale Deed.

13. Furthermore, documentary evidence will prevail over the oral evidence

of a witness. The findings of the learned appellate court that the plaintiff may

not be in possession of the suit land and remanded the suit for determining her

possession over the suit land, in my considered view, is wholly perverse and

unwarranted causing grave miscarriage of justice since learned appellate court

itself returned a finding that the plaintiff had been able to prove her title deed.

14. In my opinion, the learned first appellate court has not considered the

maxim that possession follows title and documentary evidence will prevail

over the oral evidence.

15. In the light of the above discussion, the present second appeal stands

allowed. The judgment and decree dated 28.02.2019 passed by the learned

first appellate court is set-aside and quashed. Consequently, the judgment

dated 17.10.2015 and decree dated 16.11.2015 passed by the learned Civil

Judge, Senior Division, Gomati District, Udaipur are restored and hereby

confirmed.

Pending application(s), if any, also stands disposed. Send down the LCRs forthwith.

JUDGE Page 7

Saikat