Shri Biplab Bikash Ghosh vs Shri Brajagopal Saha Banik @ ...
2022 Latest Caselaw 60 Tri

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                HIGH COURT OF TRIPURA
                      AGARTALA
                   RSA NO.34 OF 2019
1. Shri Biplab Bikash Ghosh,
    S/O Lt. Bilash Ch. Ghosh
2. Shri Bidit Chandra Ghosh
   S/O Lt. Bilash Ch. Ghosh,
3. Smti. Bijali Ghosh
    D/O Lt. Bilash Ch. Ghosh,
4. Smti. Sipra Ghosh
    D/O Lt. Bilash Ch. Ghosh,
5. Smti. Banani Ghosh
    D/O Lt. Bilash Ch. Ghosh,
6. Smti. Bijita Ghosh
    D/O Lt. Bilash Ch. Ghosh.

   All residents of Hari Mandir Road, P.O. & P.S. -
   Dharmanagar, District - North Tripura.
                                 ........... Defendant-Appellant(s)
                          Versus

1. Shri Brajagopal Saha Banik @ Brajagopal Banik,
   S/O Lt. Sadhan Lal Saha Banik of Rajbari(near Golden
   Valley School), P.S.-Dharmanagar, District - North
   Tripura.
2. Shri Madangopal Saha Banik,
   S/O Lt. Sadhan Lal Saha Banik,
3. Shri Kanailal Saha Banik,
   S/O Lt. Sadhan Lal Saha Banik.
4. (a) Smti. Jaya Rani Saha Banik,
   W/O Lt. Balaichand Saha Banik.
    Respondent Nos.2, 3 and 4(a) are residents of Central

Road, P.O. & P.S.-Dharmanagar, District-North Tripura.

4. (b) Shri Biswajit Saha Banik, S/O Lt. Balaichand Saha Banik, resident of Central Road, P.S.-Dharmanagar, District-North Tripura.

4. (c) Smti Priyanka Saha Banik, D/o Lt. Balaichand Saha Banik, resident of Central Road, P.S.-Dharmanagar, District-North Tripura.

5. Smti Kalpana Banik, W/o Late Priyonath Banik, resident of Rajbari(near

Golden Valley School), P.S.-Dharmanagar, District- North Tripura.

6. Smti. Kalyani Banik, W/o Shri Manoranjan Banik, resident of Durlabcherra, P.O.-Durlabcherra, P.S.-Ratabari, District-Karimganj.

7. Smti. Dipali Kairi, W/o Shri Chakra Sudharshan Kairi, resident of Aashram Chowmuhuni, Dhaleswar, P.S.-Agartala, District - West Tripura.

                                        ........... Plaintiff-respondent(s)
                        BEFORE
             HON'BLE MR. JUSTICE ARINDAM LODH
For appellant(s)                 :      Mr. Raju Datta, Advocate
For Respondent(s)                :      None
Date of hearing and delivery
of judgment & order              :      18.01.2022
Whether fit for reporting        :      No

                   JUDGMENT & ORDER(ORAL)

Heard Mr. Raju Datta, learned counsel appearing for

the appellants. None appears for the respondents despite

repeated calls.

2. This second appeal has been preferred by the

original defendants against the judgment and decree dated

04.02.2019 passed by learned District Judge, North Tripura

Judicial District, Dharmanagar in connection with Title Appeal

No.10 of 2013, wherein the learned first Appellate Court had

confirmed and upheld the judgment dated 24.04.2013 and

decree dated 06.05.2013 passed by the learned Civil

Judge(Junior Division), Dharmanagar, North Tripura District in

Title Suit No.21 of 2001.

3. By way of instituting the present suit, the plaintiffs,

i.e. the present respondents, had prayed for granting declaration

of right, title and interest of the plaintiff in the suit land

scheduled below and directing that the plaintiffs doth recover

possession thereof by evicting the defendants therefrom and by

demolition and removal of all obstructions created therein

including any feature wall, etc. and directing further that the

plaintiffs doth recover from the defendants, the cost of such

removal and demolition of obstructions.

4. The facts of the case as projected by the learned

first Appellate Court may be reproduced here-in-below:

"4. The brief fact of the case of the Respondent /Plaintiff before the Ld. Court below in TS-21/2001was that the lands of registered Kabala (sale deeds) dated 10-05-1961, 10-05-1961, 12-05-1961 and 06-06-1961 was owned and possessed by the plaintiff by way of purchase and the same was recorded in the khatiyan in her name. That the plaintiff has / had pucca building within aforesaid purchased land having its windows on the east walls. That, on and from 28-08-1984 the defendant illegally dispossessed the plaintiff from some portion of the aforesaid purchased land and prepared to raise pucca wall therein. Then, the plaintiff sued the defendant by filling suit bearing No. TS. 20/1984 praying recovery of possession on removable of obstruction and declaration of title to the land dispossessed. The suit was decreed in favor of the

plaintiff with a direction to break down and remove the wall portion. The defendant then preferred an appeal bearing No. TA-8/1989 against the decree of TS-

20/1984 and it was dismissed with some modification in favor of the plaintiff /respondent and then the defendant again preferred second appeal before the Honorable High Court vide SA-11/1990 wherein the decision of the 1st Appellate court was confirmed. Thereafter, vide Execution case bearing No. Ext.(T)7/ 1990, the plaintiff secured recovery of possession of the decrial land of TS-20/1984 on 15-07-2001 through survey knowing man.

5. That, during pendency of the aforesaid suit bearing no. TS-20/1984 of the plaintiff, the defendant extended his wall from 36 feet to 43 feet in length running south-north and thereby encroached to the land i. e., suit land of the plaintiff illegally. The suit land of the plaintiff situates at contiguous south of the decreed land of suit bearing No.TS-20/1984 and the suit land and the decreed land of TS-20/1984 are collinear with small curvature running north-south, and on the contiguous east of the suit land and the decreed land of TS-20/1984 situates the land of defendant as of the homestead having its separate plot number.

6. On the other hand, the case of the defendant (present appellant) before the Ld. Court below was that the plaintiff has no right, title and interest and possession over the present suit land. Rather, defendant owns and has been possessed the suit land since January, 1930 within the knowledge of the plaintiff and world at large. Further is has been

contended that the plaintiff had filed his suit bearing No. TS-20/1984 for declaration of title and recovery of possession and it was decreed and the decreed was modified in the appeal and then the same was confirmed in the second appeal by the Honorable High Court where in the disputed wall over the disputed land was measuring 43 feet in length and 9/10 „‟ in length, accordingly, it was vide Execution case bearing No. Ext.(T) 7/ 1990 was handed over but actually the defendant was evicted from the land measuring 82 feet in length, thus, execution was done beyond the decree for which defendant filed separate case for restitution of the land. The plaintiff has no right, title and interest and possession over the suit land."

5. On the basis of the aforesaid facts, the following

issues were framed:

(i) Is the suit maintainable in its present form?

(ii) Is there any cause of action for filing of the suit?

(iii) Whether the suit barred by the law of limitation?

(iv) Whether the plaintiff has the right, title and interest in the suit land?

(v) Whether the plaintiff is entitled to get the decree of recovery of possession of the suit land by evicting the defendants there from and by demolishing and removal of the constructions raised by the defendants therein with their costs?

(vi) Whether the parties are entitled to get any relief / relieve?

6. The plaintiff-respondents had examined as many as

three witnesses and proved total thirteen documents. On the

other hand, the defendant-appellants had produced two

witnesses and proved three documents.

7. The learned trial Court after hearing the parties and

considering the evidence, both ocular and documentary, decreed

the suit declaring the right, title and interest of the plaintiff-

respondents(here-in-after referred to as plaintiffs) over the suit

land and also for recovery of possession of the same evicting the

defendant-appellants and removing/demolishing all the

constructions thereon at the cost of the defendant-

appellants(here-in-after referred to as the defendants).

8. Being aggrieved, the defendant-appellants have

preferred the instant appeal before this Court.

9. The defendants have raised the question of

maintainability of the suit on the ground of limitation. While

dealing with the said issue, the learned first Appellate Court had

observed thus:

"15. Be that what it may, coming to the question of limitation of the suit, it is as per Art. 65 of the Limitation Act, in a suit based on title even if dispossession is alleged, the defendant can succeed only if he can prove that his possession has become adverse to the plaintiff beyond 12 years of the suit. In such case, the plaintiff needs to prove only his title and

he need not show that he was in possession within 12 years of the suit. Now, let us consider as to whether the plaintiff/respondent in the case could prove her title over the suit property or not. Sale deeds Ext. 1, 2, 3 and 4, Judgment in TS-20/1984 Ext. 10, Commissioner Reports dated 12-08-1995 and 20-

01-1989 Ext. 11 and 12 proves that plaintiff has his rights, title and interest over the suit land. Finally published Khatiyan 261 Ext. 5 even proves that plaintiff had possessed the suit land at the time of settlement and continued thereof both forward and backward. Defendant / appellant claims that he has been owning and possessing the suit land since January, 1930 within the knowledge of the plaintiff and the world at large. I notice that defendant though claims that the suit land has been possessed by him since the year 1930 but in that event he shows the description of the land differently inasmuch as he claims land of C. S. Plot no. 6770 and C.S. Plot no. 6086 under khatiyan no. 3048. But, the suit land of the plaintiff / respondent falls within C. S. Plot No. 6088 and old C. S. Plot no. 6089, new C. S. Plot no. 6957 under earlier Khatiyan No. 2746 present Khatiyan No. 261. It indicates that the suit land of the plaintiff is not claimed by the defendant at all. Be that what it may, it is settled law that a person who claims title to property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what the nature of his possession was and whether the fact of the adverse possession was known to the real owner. What the law requires in the case of claiming

adverse title is that the possession should be hostile under a claim or color of title. It should be actual, open, uninterrupted, notorious, exclusive, continuous, and for a statutory period of 12 years and presence of these all elements converts the adverse possession into title. But, in the case the defendant has pleaded nothing as to who was the real owner of the land and how he commenced possession and what was his nature of possession etc. He even could prove nothing documentary evidence as to his possession and its nature etc. In the event he could prove all elements of adverse possession yet while coming to the question of description of suit land it finds that the land claimed by the defendant is not the suit land claimed by the plaintiff. Plaintiff case is that defendant dispossessed her from the suit land gradually from the period beginning the last part of the year 1985 extending up to January 1991 which indicates that the dispossession was done by January, 1991. The suit of the plaintiff was filed on 28-11-2001 which was well within 12 years of her so called dispossession. Thus, even if the suit land and the land claimed by the defendant be same yet it is found that the plaintiff brought her suit well within 12 years of her dispossession. Thus, it can be said that the suit of the plaintiff was not barred by the law of limitation.

16. What has been discussed above it concludes that the suit of the plaintiff was not barred by the law of limitation and the plaintiff could prove her right, title and interest in the suit land. I find in the facts and circumstances of the case the Ld. Court below has

decided the issue nos. (iii), (iv) and (v) of the suit legally and properly."

10. At the time of admission of the appeal, the following

substantial question of law has been formulated:

"(1) Whether the present appeal is barred by constructive res judicata in absence of any fresh cause of action?"

Thereafter, on the basis of an application filed by the

appellants, the Court again had formulated the below noted

substantial questions of law:

"(i) Whether the civil court as well as the appellate court have omitted the issue of res-judicata in absence of a fresh cause of action related to the suit and whether such omission renders the impugned judgment unsustainable?

(ii) Whether the observation of the first appellate court that the suit was within the limitation is perverse for not being founded on material fact?"

11. In support of the above substantial questions of law,

Mr. Datta, learned counsel appearing for the appellants has tried

to persuade this Court that from the plaint itself it reveals that

the suit instituted by the plaintiffs is barred by the principle of

res judicata. Mr. Datta, learned counsel has invited my attention

to the statement made by the plaintiff in his plaint that the

construction of wall over the suit land, i.e. the land under C.S.

Plot No.6088 was started in the year 1985 and this fact was

noticed by the plaintiff in the year 1990 from the judgment

dated 20.01.1990 passed by the learned first Appellate Court in

Title Appeal No.8 of 1989. Mr. Datta, learned counsel for the

appellants has further submitted that against the judgment

passed by the first Appellate Court in TA No.8 of 1989, the

defendants of the present case had preferred second appeal and

that second appeal was also dismissed under the judgment

dated 01.08.1997(SA No.11/90). Learned counsel has further

submitted that this fact of construction of wall was noticed by

the plaintiff during the pendency of the second appeal of the

previously instituted suit, but, the plaintiff did not think it

necessary to bring the aforesaid facts into record by way of

amendment, and in the year 2001, the plaintiffs filed the instant

suit for further direction for declaration of right, title and interest

over the suit land under CS Plot No.6088.

12. In view of the above submissions, I have gone

through the written statement filed by the defendants, i.e. the

appellants of the present appeal. After perusal, I do not find any

such averment made by the defendants as to how the present

suit is barred by constructive res judicata or res judicata. He

could not place any material before this Court to substantiate

that the dispute raised in the present suit was also subject

matter of the previous suit. As such, I do not find any merit in

the submission of learned counsel, Mr. Datta. As such, in

absence of any material, in my opinion, it will not be proper to

hold that the present suit is barred by the doctrine of res

judicata or constructive res judicata.

Furthermore, it comes to light that the right, title

and interest of the plaintiff over the CS Plot No.6088 have been

confirmed by both the learned Courts below. During the

pendency of the first appeal, on an application, the first

Appellate Court directed to measure the suit land by appointing

a Survey Commissioner. The Survey Commissioner after making

a survey over the suit land submitted his report stating inter alia

that the wall has been constructed by the defendants over the

land comprising CS Plot No.6088 over which the plaintiff has

acquired title. Both the learned Courts below held that the

plaintiff is the owner of the land comprising CS Plot No.6088.

During the pendency of the first appeal, the defendants did not

raise the issue of res judicata or constructive res judicata.

13. For the reasons stated above, I am unable to hold

that the present suit is barred by res judicata. Accordingly, the

substantial questions of law as framed, whether the suit is

barred by res judicata or constructive res judicata is accordingly

answered.

14. Now, coming to the question whether the suit is

barred by law of limitation, I find that the cause of action lastly

arose in the year 1997 and the suit was filed in the year 2001. A

suit of this nature has to be filed within twelve years in terms of

Article 65 of the Limitation Act, which is also admitted by Mr.

Datta, learned counsel appearing on behalf of the defendants. I

do not find any error of law in the findings of the learned first

Appellate Court regarding the issue of limitation. Even if, it is

seen that the plaintiff had got knowledge of the construction of

wall in the year 1990, then also, the period of limitation for

institution of the present suit is covered within the prescribed

period of limitation. Accordingly, the substantial question of law

formulated as to whether the suit is barred by limitation merits

no consideration.

15. In the light of the above discussions, the present

appeal is devoid of merit and thus, dismissed. However, there

shall be no order as to costs.

JUDGE