Sri Subhash Chandra Paul vs Sri Kanak Ranjan Bhattacharjee
2022 Latest Caselaw 247 Tri

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                    HIGH COURT OF TRIPURA
                         AGARTALA
                           RSA 49 of 2019
   Sri Subhash Chandra Paul,
   son of late Suresh Chandra Paul, resident of Kulai (Quarters lane),
   P.O. Kulai, P.S. Ambassa, District- Dhalai, Tripura
                                                                ... Appellant
                                            (Plaintiff-Principal Respondent)

VERSUS

1. Sri Kanak Ranjan Bhattacharjee, son of late Ketaki Bhattacharjee, resident of East Nalicherra, P.O. Ambassa, P.S. Ambassa, District- Dhalai, Tripura Respondent

2. Sri Kalyan Bhattacharjee, son of late Ketaki Bhattacharjee, resident of East Nalicherra, P.O. Ambassa, P.S. Ambassa, District- Dhalai, Tripura Proforma-Respondent For Appellant (s ) : Mr. DC Roy, Advocate For Respondent (s) : Mr. SM Chakraborty, Sr. Advocate Ms. A. Pal, Advocate Date of hearing and delivery : 02.03.2022 of judgment and order Whether fit for reporting : No HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER (ORAL)

Heard Mr. DC Roy, learned counsel appearing for the appellant as well

as Mr. SM Chakraborty, learned senior counsel assisted by Ms. A. Pal,

learned counsel appearing for the respondents.

2. This appeal has been preferred against the judgment and decree dated

31.07.2019 and 07.08.2019 respectively passed by the learned District

Judge, Dhalai Judicial District, Ambassa in connection with case no. Title

Appeal 15 of 2018 wherein the appeal preferred by the defendant-appellants

(the respondents herein) was allowed reversing the judgment and decree Page 2

dated 04.06.2018 and 08.06.2018 respectively passed by the learned Civil

Judge, Senior Division, Kailasahar, Unakoti Judicial District, Tripura in

case no. Title Suit 23 of 2016.

3. At the time of admission of this second appeal, the following

substantial questions of law had been formulated:

"(i) Whether the findings of the first appellate court is perverse?

(ii) Whether the essential documents are not considered by the courts below in accordance with law?"

4. Mr. Roy, learned counsel appearing for the appellant-plaintiff (here-in-

after referred to as the "plaintiff") had filed a suit for declaration of right,

title and interest over 167 numbers of trees described in schedule „A1‟ of

the plaint. The defendant contested the suit who was the owner of the land

of schedule „A‟ by filing written statement.

5. After recording of evidences, on the basis of the issues framed by the

learned trial court, the suit was decreed as under:

"In the result, the suit of the plaintiff is decreed on contest with cost with a declaration that the plaintiff has right, title and interest over 167 numbers of trees described in schedule 'A1' of the plaint and the plaintiff is entitled to remove and get the same and thus the defendant No. 1 is directed, injuncted and restrained from making and causing any disturbance in peaceful removal of said 167 numbers of trees from the schedule 'A1' of the plaint till the removal of those trees."

6. The said judgment and decree was challenged by the defendants by

filing first appeal before the learned District Judge. After hearing the

parties, learned District Judge dismissed the decree holding that the plaintiff Page 3

has failed to prove his right, title and interest over the 167 numbers of trees

planted over the land of schedule „A1‟. Being aggrieved, the defendant no.

1 has preferred the instant second appeal.

7. I have considered the submissions of the learned counsel appearing for

the parties. I have also gone through the judgment and decree passed by the

learned trial court as well as the first appellate court. I have perused the

records and documents brought on record and exhibited.

8. I find that the learned trial Judge relying upon a communication made

by the defendant no. 1 i.e. the respondent no. 1 herein, addressing to the

DFO, held that the plaintiff has the right, title and interest over 167

numbers of trees described in schedule „A1‟ of the plaint. This

communication by the defendant no. 1 to the DFO was marked as Exbt. 1

wherein it is seen that the defendants no. 1 and 2 had informed the DFO,

Ambassa in respect of the fact that they had sold the trees standing over

their land at a consideration money of Rs. 1,30,000/- to the plaintif-

appellant and they acknowledged the receipt of the same. It is mentioned in

the said communication that only two trees will remain with them.

9. On the other hand, learned first appellate court had disbelieved this

document (Exbt.1) on the ground that some materials have been surfaced in

the document itself which give rise to suspicious circumstances about the

genuinity of the actual intention of the defendants to sell the trees to the Page 4

plaintiff. According to learned first appellate court, though the document

(Exbt. 1) appears to be a communication informing the above facts to the

DFO, but, there is no evidence when this correspondence was made

because there is no date of such correspondence. Moreso, according to the

learned first appellate court, even there is no evidence whether this

document (Exbt.1) was ever submitted to the office of the DFO on the

ground that there is no receipt seal of the office of the DFO, or whether this

communication was at all received by the DFO. The learned first appellate

court also had considered the fact that the plaintiffs had failed to produce

any such paper from which it can be garnered that the DFO had ever

permitted the defendants to sell and uproot the trees planted over the land of

schedule „A1‟ described in the plaint. It was also observed by the learned

first appellate court that "The plaintiff did not examine any witness in whose

presence he paid the money to the defendants for consideration of purchase

of trees standing in the land of the defendants. There is no sufficient

pleadings in the plaint of the plaintiff as to the date of purchase of the trees

and the number of trees purchased by him. The pleadings of the plaintiffs in

the plaint that the DFO, Ambassa issued Trees Registration Certificate for

certain number of trees standing in the land of the defendants does not

mean that all those trees were sold out. So, in absence of such pleadings,

the evidence of the plaintiff before the learned trial court cannot be Page 5

accepted. The pleadings should contain the material facts. The number of

trees purchased by the plaintiff is a material fact which is absent in the

pleadings of the plaintiff."

10. In the light of the aforesaid observations and findings arrived at by the

learned first appellate court, it would be wrong to say that the findings of

the learned first appellate court is perverse. Rather, in my opinion, the

finding of the learned trial court suffers from misconception of law

regarding admissibility of the document (Exbt.1) itself in evidence. Much

less to say, it‟s mode of proof.

11. In my opinion, the learned trial court has failed to properly appreciate

the document (Exbt.1) which cannot in any way confer title upon the

plaintiff over 167 numbers of trees belonging to the defendants. In other

words, Exbt. 1 is a kind of document which is not at all admissible in

evidence to confer title upon the plaintiff.

12. In the light of the aforesaid discussion on factual and legal aspects, I

find no merit in the present second appeal and the same stands dismissed.

Accordingly, the judgment and decree passed by the learned first appellate

court stands affirmed and upheld.

Draw the decree accordingly.

Send down the LCRs.

JUDGE Saikat