Tripura High Court
Smti. Panchami Bala Datta vs Secretary To The Govt. Of Tripura on 8 September, 2022
Page 1 of 17
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
RFA. No. 08 of 2020
Connected with
CO(FA) No.12 of 2022
1. Smti. Panchami Bala Datta, wife of late Jatindra Chandra Datta
@ Jatindra Datta.
2. Sri Subodh Datta.
3. Sri Kanti Lal Datta.
Both sons of late Jatindra Chandra Datta alias Jatindra Datta.
All are residents of Santir Bazar, P.O. & P.S. Santir Bazar,
District: South Tripura.
.... Plaintiff-Appellants
-V E R S U S-
1. Secretary to the Govt. of Tripura, Revenue Department, Civil
Secretariat, New Capital Complex, P.O. Kunjaban, P.S. New
Capital Complex, District: West Tripura, PIN-799006.
2. The District Magistrate & Collector, South Tripura District, P.O.
& P.S. Belonia.
3. The Sub-Divisional Magistrate, Belonia, P.O. & P.S. Belonia,
South Tripura.
4. Santirbazar Nagar Panchayat, New Santirbazar Municipal
Council, represented by the Chief Executive Officer, P.O. & P.S.
Santirbazar, District: South Tripura.
5. Secretary to the Govt. of Tripura, Urban Development
Department, Civil Secretariat, New Capital Complex, P.O.
Kunjaban, P.S. New Capital Complex, District: West Tripura,
PIN-799006.
6. The Director, Urban Development Department, Govt. of Tripura,
Pandit Nehru Complex, Gurkhabasti, P.O. Kunjaban, District:
West Tripura.
7. The Sub- Divisional Magistrate, Santirbazar, P.O. & P.S.
Santirbazar, District: South Tripura.
..... Respondent-defendants.
CO(FA) No.12 of 2022
1. Santir Bazar Nagar panchayat,
New Santir Bazar Municipal Council, Represented by the Chief
Executive Officer, P.O & P.S Santir Bazar, District South
Tripura.
..........Cross objector-respondent No.4
-V-E-R-S-U-S-
1. Smti. Panchami Bala Datta, Wife of late Jatindra Chandra Datta
alias Jatindra Datta.
2. Shri Subodh Datta, S/o late Jatidra Datta @ Jatindra Datta
3. Shri Kantilal Datta, S/o. late Jatindra Chandra Datta @ Jatindra
Datta. -all are residents of Santir Bazar. District South Tripura.
4. The Secretary to the Government of Tripura, Revenue
Department, New Secretariat Complex, Agartala, P.O & P.S
NCC, District West Tripura.
5. The District Magistrate and Collector, South Tripura, Belonia.
6. The Sub-Divisional Magistrate, Belonia, South Tripura.
7. The Secretary to the Government of Tripura, Urban
Development Department, New Secretariat Complex, Agartala,
P.O & P.S N.C.C, District West Tripura.
8. The Director, Urban Development Department, Pt. Nehru
Complex, Gurkhabasti, Agartala,
9. The Sub-Divisional Magistrate, Santir Bazar. South Tripura.
..........Respondent-plaintiff-appellants
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
For Appellant(s) : Mr. Somik Deb, Sr. Advocate.
Mr. Abir Baran, Advocate.
For Respondent(s) : Mr. B. N. Majumder, Advocate.
Mr. S. Saha, Advocate.
Date of hearing : 01.08.2022
Date of delivery of
judgment and order : 08.09.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
T. Amarnath Goud, J
Heard Mr. Somik Deb, learned senior counsel assisted by Mr.
Abir Baran, learned counsel appearing for the appellants. Also heard Mr.
B. N. Majumder, learned senior counsel assisted by Mr. S. Saha, learned
counsel appearing for the respondents.
[2] This appeal has been filed under Section-96 of CPC against
the judgment dated 17th January, 2020 passed by the Court of learned Civil
Judge, Senior Judge, South Tripura, Belonia in connection with Title Suit
No.01 of 2018 by, whereby and whereunder, the learned Court below
partly decreed the suit of the plaintiff-appellants.
[3] The factual aspects of the case of the appellants in brief are as
follows:
[3.1] The case of the plaintiff in brief is that the Defendant No. 3 of
this case while designated as Sub-Divisional Officer, Belonia, South
Tripura before creation of Santirbazar Revenue Sub-Division and was
acting as Collector by exercising power under provision of TLR & LR Act,
1960 for the purpose of giving allotment of Govt. land at that time had
allotted 0.910 acres of nul classes land pertaining to Hal Plot No. 7027 of
Mouja and T.K. Santirbazar to the present plaintiffs by issuing Allotment
Order No. 788/96, dated 17.06.1996 under provision of said TLR & LR
Act. It is the case of the plaintiffs that this land in fact was purchased by
his predecessor Jatindra Kr. Datta in the 1954 by registered deed, but in the
year 1965 during the last survey settlement operation the land was
recorded in the Raioti Khatian vide Plot No. 743 of Mouja: Santirbazar in
the name of their predecessor Jatindra Kr. Datta, but at the time of final
publication of the Khatian, the said land was recorded in the Khash
Khatian Bearing No. 1 of Mouja: Santirbazar and in the remark column i.e.
in column No. 24 of the said Khatian, the name of Jatindra Kr. Datta and
his two brothers were recorded as forceful possessors of the said land and
thereafter on completion of revisional survey operation, the land has been
recorded in Khash Khatian No. 1/224 of Mouja & T.K. Santirbazar. After
final publication of Revisional Khatian 1/244 in the year 1994, Radha
Raman Datta and Hari Raman Datta gave the declaration stating that their
elder brother Jatindra Kr. Datta in the 1954 purchased the said land by
registered deed No. 236, dated 10.02.1954 in the name of Jatindra Kr.
Datta, Radha Raman Datta and Hari Raman Datta and the entire
consideration of money was paid by Jatindra Kr. Datta and since the date
of purchase. Said Jatiandra Kr. Datta was in constructive possession of the
said land and after his death, his legal heirs were continuing the said
possession and as such they have no objection to correct or rectify the said
Khash Khatian in the name of their predecessor in interest. While the
plaintiffs approached to the competent authority with all of those
documents showing their right over the said land then the land was allotted
in the name of plaintiffs in the year 1996. It is averted that since the year
1954 till date the land was/is under constructive and physical possession of
the predecessor of the plaintiffs and after his death the plaintiffs are
continuing the said possession. It is also stated that the defendant No. 3 did
not open a new record of right in favour of the plaintiffs on the basis of
allotment order.
[3.2] But still the plaintiffs were possessing the allotted land and
continued to cultivate the land and produced paddy therein, but no record
of right was created in favour of them and the plaintiffs had continued
uninterrupted physical possession over the land till the year 2013. It is also
the case of the plaintiffs that in the month of February, 2013 they found
that the Defendant No. 4 started filling earth in a part of the said land and
the plaintiffs raised objection on 11.02.2013 and the defendant No. 4
stopped earth filling till the month of February,2018 and claimed that the
said land have been allotted to the Defendant No. 4 by Revenue Authority.
[3.3] The plaintiffs had no knowledge about any such perpetuated
allotment and only on 06.11.2015 they found in the web site that the
allotted land in Hal Plot No. 7027 corresponding to CS Plot No. 2677 is
now recorded in Khatian No. 2979 showing it to be vested to the Govt. of
Tripura, Urban Development Department and in remarks column, the said
Khatian is in the name of the Santirbazar Nagar Panchayat which has been
recorded and a reference of a letter No. 34(58)/Rev/2010, dated 06.11.2010
also has been noted therein. It is claimed that the order of allotment of the
land in favour of the plaintiffs dated 17.06.1996 was never suspended,
withdrawn or cancelled by the authority as such, the said order of
allotment is in force and legally plaintiffs are owners of the allotted land
and have all lawful rights to own and possess the said land and to enjoy
usufructs from the said land and there is no scope to vest or to allot the
land to anybody else without withdrawing and cancelling the allotment
made in favour of the plaintiffs and that the allotment of the land to
Defendant No. 6 is fully illegal and void and that the dispossession of the
plaintiffs from the land by Defendant No. 4 in the months of February,
2013 is illegal and the plaintiffs used to earn a minimum amount of Rs.
10,000/- per year from the said allotted land by growing paddy therein,
but the Defendant No. 4 has not been allowing the plaintiffs to cultivate the
said land after the month of February,2013.
[3.4] The plaintiffs requested Defendants Nos. 2, 3 and 7 to open
Khatian in their favour in respect of the allotted land, but it was not done
till now. And that the plaintiffs have also issued notice to the Defendant
No. 4 to vacate the said allotted land, but the Defendant No. 4 has been
maintaining silence and that on 09.11.15 the plaintiffs issued pleader's
notice to Defendants No. 1 to 7 under Section-80, CPC stating relevant
facts and cause of action for the suit and also demanded for vacant
possession and mense profit and also to open a new Khatian in favour of
the plaintiffs. But even after expiry of stipulated period of 60 days, the
defendants have maintained silence. It is on these backgrounds, the
plaintiffs have instituted this case for declaration that they have right, tile
and interest over the suit land and they are the owners of the suit land by
virtue of allotment, for recovery of possession of the suit land by evicting
the Defendants No. 4, 5 and 6 after removing all obstructions therefrom
and for realization of mense profit @ Rs.10,000/- per year from the date of
filing of this suit till the date of decree and for directing defendants No. 1,
2 and 3 to 7 to open a new Khatian in favour of the plaintiffs in respect of
the suit land after cancelling the Khatian No. 2979 and for cost of the suit.
[4] Mr. Somik Deb, learned senior counsel assisted by Mr. Abir
Baran, learned counsel appearing for appellants has submitted that the
Court below considering pleading of both the sides was pleased to frame as
many as six issues and after recording evidence and hearing of both sides
was pleased to decide issue No.1 in favour of the plaintiff appellants, issue
No.2 in favour of the plaintiff appellants in issue No.3 it has been decided
that the plaintiffs have right, title and interest over the suit land and in
issue No.5 it has been decided that the subsequent order of allotment in the
name of the defendant respondent No.6 is illegal and did not confer any
title. The Court below decided that the plaintiff appellants are not entitled
to any other relief. After hearing the parties and perusal of material
evidences, the learned Court below has observed as under:
"In the result, the instant suit preferred by the plaintiffs namely 1) Smt.
Panchami Bala Datta, 2) Sri Subodh Datta and 3) Sri Kanti Lal Datta is
decreed partly with cost in their favour and it is declared that the plaintiffs
have right, title and interest over the land measuring 0.910 acres stated in
Hal Plot No. 7027 described specifically in the schedule of the plaint as
allottees and their right, title and interest over the suit land would be
governed and circumscribed by the relevant provisions of Tripura Land
Revenue and LandReforms Act, 1960 and the Tripura Land Revenue and
Land Reforms (Allotment of land) Rules, 1980."
[5] Being aggrieved by and dissatisfied with the impugned
judgment and order dated 17th January, 2020 passed by the Court of
learned Civil Judge, Senior Judge, South Tripura, Belonia in connection
with Title Suit No.01 of 2018, the plaintiff-appellants have preferred this
appeal.
[6] Mr. Deb, learned senior counsel appearing for the appellants
has submitted that the Court below has failed to appreciate the legal
principles embodied under Section-34 of the Specific Relief Act that where
consequential relief is available along with a declaratory decree, the
appellants are entitled to such consequential relief. As such, the Court
below by denying such further relief without any reason whatsoever
arrived at an erroneous finding.
[7] The learned Court below has failed to appreciate the pleadings
of the defendant respondents that the defendant respondents pleaded
possession of the suit land basing on the so called allotment order in the
name of the defendant No.6. As such, the finding of the Court below that
the plaintiff appellants could not prove dispossession is erroneous and not
founded on facts. Rather, the Court below has made out a third case. As
such, the findings of the Court below in issue No. IV is liable to be set
aside.
[8] He has further contended that the cross-examination of PW-1
who is the present plaintiff appellant No.2 has not been cherished that the
defendants by cross-examination of plaintiff appellant No.2 elucidated the
fact that presently construction of Santirbazar Municipal Office is in
progress over the suit land. As such, such cross examination proves
dispossession of the plaintiff-appellant from the suit land by the defendant
respondents as alleged by the plaintiff appellants. Hence, the finding of the
Court below recorded in issue No. IV is erroneous as not founded on facts
available on record.
[9] He has stressed upon Rule-12 along with Appendix B of the
Tripura Land Revenue and Land Reforms (Allotment of land) Rules, 1980
give presumption that by allotment in the name of the plaintiff appellants
in the year 1996, the plaintiff appellants were handed over possession of
the suit land and b y subsequent illegal order of allotment in the name of
the defendant respondent No.6, the defendant respondents took possession
of the suit land by evicting the plaintiff appellants as alleged by the
plaintiff appellants. Hence, the finding of the Court below recorded in
issue No. IV being against the spirit of law is liable to be quashed.
[10] He has further argued that the findings recorded against issue
No. III and V that the plaintiff appellants have right, title and interest over
the suit land and that the subsequent order of allotment of the suit land in
favour of the defendant respondents was illegal and did not confer any title
upon the defendant respondent No.6, the finding of the Court below as
recorded in issue No.IV that the plaintiff appellants are not entitled to
recovery of the suit land is contradictory and has no legal legs to stand.
[11] In view of the issue No.II that the plaintiff appellants have
valid cause of action to file the suit and the suit being a suit for declaration
of right, title and interest and recovery of possession, the finding of the
Court below recorded against issue No. IV that the plaintiff appellants are
not entitled to get a decree for recovery of possession of the suit land is
contradictory and not sustainable in law.
[12] He has further averred that the finding recorded against the
issue No. IV is liable to be set aside inasmuch as, such finding is not based
on evidence on record and also that the Court below while recording
finding against issue No IV ignored the fact that the suit of the plaintiff
appellants although was filed taking sufficient time but it was filed well
ahead of the expiry of the period of limitation.
[13] The finding recorded against the issue No.4 by which the
Court below was not pleased to pass a decree for recovery of possession is
a prejudice against the plaintiff appellants as learned trial Court was
pleased to pass a decree declaring right, title and interest of the plaintiff
appellants over the suit land. As such, the defendant-respondents are in
possession of the suit land having no right, title and interest over the suit
land as has been expounded by the Court below.
[14] In view of above discussion, Mr. Deb, learned senior counsel
has relied upon a decision of this Court in Dhaneswar Debbarma v. State
of Tripura and another reported in (2015) 2 TLR 661, wherein, this Court
has observed as under:
"5.At the outset, we may notice that the land was allotted in favour of the
writ petitioner in the year 1988. Assuming that there was any error in the
allotment, such allotment should have been challenged within a
reasonable time. Allotments cannot be set aside after expiry of reasonable
period. What is a reasonable period may depend on the facts of a
particular case but normally the reasonable period will not exceed 3 years
at the most. It is only in cases where fraud is proved that the period of
limitation will start from the date of discovery of the fraud. Otherwise
within a reasonable period, proceedings to cancel allotment must start. A
person who is allotted land develops the land by dint of his hand work. He
invests money and time on the land. After he has developed the land the
allotment cannot be set aside after two decades on the ground that the
objector had a better claim to the land."
[15] Mr. Deb, learned senior counsel has submitted that whether an
allotment has been rightly granted or whether someone was in possession
when the allotment was made are the subject matter of TLR& LR Act and
Rules. In this pretext he has relied upon a decision of this Court in
Niranjan Nath v. Manoranjan Nath and Others, reported in (2018) 1
TLR 227, wherein, this Court has held thus:
"5.That apart, when this Court had projected a question that when the
matter is wholly related to allotment under Section-14 of the TLR& LR
Act read with TLR & LR (Allotment of Land) Rules, 1962 or subsequent
completely guided and governed by those provisions as referred above
whether an allotment has been rightly granted or whether someone was in
possession when the allotment was made are the subject matter of TLR&
LR Act and Rules.
A civil Court may broadly confront the circumstances as under:
(1) If the allotment is made despite the prohibition in the law or in any
other way which is de hors the law, the subject matter emerging therefrom
was definitely be adjudicated by the civil Court.
(2) When the allotment has been made and the challenge is directed to the
mode of allotment on the basis of a previous possession that objection has
to be raised before the authority which granted allotment of the land
because that authority holds the jurisdiction for violation of the condition
of the allotment or its properties.
To comprehend how the jurisdiction has been allocated by the statute, it
would be appropriate to revisit Section-188 of the TLR& LR Act which
provides as under:
"Jurisdiction of the civil court excluded:- No suit or order other
proceeding unless otherwise expressly provided in this Act, lie or be
instituted in the civil court with respect to any matter arising under and
provided for by this Act."
[16] In view of above analogy placed before this Court by Mr.
Deb, learned senior counsel appearing for the plaintiff-appellants, let us
examine whether the Court below has dealt with all the material evidences
placed on record. The issues which had been framed by the Court below in
respect of the present context, for the purpose of reference, let us revisit
the same once again.
[17] Mr. B. N. Majumder, learned senior counsel assisted by Mr.
S. Saha, learned counsel appearing for the respondents has submitted that
after getting allotment order the plaintiff-appellants never possessed the
suit land and they never approached for development of allotted land after
1996. It is also argued that since the appellants did not possess the land
hence the allotment order not enforceable. It is further stated that the
documents produced by the respondents clearly shows that Urban
Development department as such the suit of the appellant is liable to be
dismissed.
[18] He has further submitted that since at present the land is
recorded in the name of the respondent No.6 and khatian is also created,
the respondent No.6 has only right, title and interest over the suit land.
Section-43(3) of the TLR& LR Act specifies that "every entry in the
record of rights as finally published shall, until the contrary is proved, be
presumed to be correct."
[19] He has further stressed upon Section-6 of the Specific Relief
Act wherein, it has been held thus:
"Section-6: If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he or any person
claiming through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) After the expiry of six months from the date of dispossession; or
(b) Against the Government.
(3) No appeal shall lie from any order or decree passed in any suit
instituted under this section, nor shall any review of any such order or
decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his
title to such property and to recover possession thereof."
[20] Rule-12 of Tripura Land Revenue and Land Reforms
(Allotment of Land) Rules, 1980 clearly stipulates that land allotment will
be liable to be dismissed if:
(i) The land is not used within two years from the date of allotment of
the land except for the grounds, for which the land has been allotted, as
included in the fourth chapter; or
(ii) The allottee violates any conditions as mentioned above or provisions
of the TLR & LR Rules, 1980; or
(iii) Any such matter comes to light ever that the allottee is not eligible to
be entitled to the allotment as per the Tripura Land Revenue and Land
Reforms (Land allotment) Rules, 1980 or it is erroneous for the
misinterpretation of facts at the time of allotment but the allottee is given
the show cause notice against the cancellation order within 15(fifteen)
days of receiving the notice before such cancellation order being passed."
[21] The Plaintiffs have come up with this suit for declaration of
right, title and interest, recovery of possession and averted that the suit
land was allotted to them in the year 1996 but no record of right is created
in favour of them and now without cancelling the order of allotment the
suit land has been allotted to defendant No. 6 and in the month of February
2013 the defendant No. 4 dispossessed the plaintiffs from the suit land.
The plaintiffs have produced the original Allotment order. The term cause
of action narrates bundle of facts which gives right to any plaintiff to file
suit.
[22] Before deciding the issues it would be worthwhile to
recapitulate the submissions made by the counsel of both the parties that in
the year 1996 the suit land was allotted in favour of the plaintiffs, but the
Allotting Authority did not prepare any Khash Khatian in favour of the
plaintiffs and that from the documentary evidence specially Exhibit No. 1
and from the evidence of PWs, it is clearly proved that the suit land was
allotted to the present plaintiffs and the possession of the suit land was all
along with the predecessors and after them was with the present plaintiffs.
[23] It is also argued that the allotment order of plaintiffs is not
cancelled yet and without cancellation of the existing allotment, the suit
land has been subsequently allotted to the defendants, which has no force
in law and the transaction is void. It is further submitted that even no
proceedings of cancellation of earlier allotment order is drawn by the Govt.
and no iota of evidence is placed before this Court by the defendant side to
show that the allotment order granted to plaintiffs has been cancelled. It is
also argued that the government having applied its power has illegally
created the subsequent documents which the defendants submitted in their
case. It is stated that the documents produced by the plaintiffs were duly
exhibited without objection as such the same can be read in evidence and
the plaintiffs duly discharged their burden and proved their right, title and
interest over the suit land by virtue of the Allotment Order (Exbt.1).
[24] Ld. Counsel refer one decision of this Court decided in
connection with Dhaneshwar Debbarma Vs. State of Tripura & Another,
(supra) and submitted that at present there is no scope for Govt. to cancel
the allotment given to the plaintiffs. Learned counsel appearing for the
defendants has submitted that after getting allotment order the plaintiffs
never possessed the suit land and they never approached for development
of allotted land after 1996. It is also argued that since plaintiffs did not
possess the land hence the allotment order is not enforceable. It is further
stated that the documents produced by the Defendants side clearly shows
that at present, the land is recorded in the name of Defendant No.6 urban
Development Department and as such the suit of plaintiffs is liable to be
dismissed.
[25] During cross-examination, PW-1 admitted that after CLR
correction, the suit land is in the name of the State of Tripura vide Khatian
No. 2979 and also stated that at present construction of Santirbazar Nagar
Panchayat Office is going on the suit land.
[26] PW-2, Bhajan Barowa; PW-3, Naryan Das and PW-4,
Khokan Acharjee all of them deposed in the same line that originally
Jatindra Kr. Datta (now deceased) the predecessor of the plaintiffs during
his life time purchased the suit land and since the date of purchase said
Jatindra Kr. Datta possessed the land and after his death the plaintiffs have
been possessing the land by producing paddy thereon.
[27] They also stated that during the first survey settlement the
land was recorded in the Khash Khatian of Tripura Govt. and in the remark
column in the said Khash Khatian the name of Jatindra Kr. Datta was
inserted as a forceful possessor and thereafter the plaintiff made some
correspondences in the office of District Collector for correction of the
said Khash Khatian and in the year 1969 the land was allotted to the
plaintiffs by the Collector. They also stated that in the year 2013 the
Santirbazar Nagar Panchayat dispossessed the plaintiffs from the suit land
and started to earth filling thereon and the plaintiffs raised objection and
the defendants pleaded the said Rule filing, but in the year 2018 the Nagar
Panchayat again started some construction thereon and that due to
dispossession of the plaintiffs from the suit land the plaintiffs are suffering
of more than Rs. 10,000/- per month which is the plaintiffs could earn by
producing paddy thereon regularly.
[28] Considering the pleading of both sides this Court is of the
view that in this case the claim of plaintiffs is clear that the suit land has
been allotted to them by the Defendant No. 3 and now without cancelling
the allotment order the suit land has been illegally mutated in the name of
defendant No. 6 giving subsequent allotment and this subsequent allotment
has no force being illegal and the right, title of plaintiffs over the suit land
still exists.
[29] It is true that the background narrated by the plaintiffs in their
plaint to the effect that originally in the year 1954 the land was purchased
by their predecessors by way of registered deed is not substantiated by the
plaintiffs as because the said registered deed of purchase is not placed on
record by the plaintiffs. However, the plea that the suit land was allotted to
the present plaintiffs in the year 1996 is duly proved by the plaintiffs by
producing the primary evidence i.e. the original allotment order. Exhibit 1
is the Allotment Order No. 788/16, dated 17.06.1996 which speaks that
land measuring .910 acre of Dag No. 7027 has been allotted to the present
plaintiffs as per TLR & LR Act, 1960. Exhibit-3 Khatian No. I/224 shows
that in the year 1994 the land was recorded in the name of Govt. Exhibits
4, 4/1 shows that the suit land is recorded in the name of Defendant No. 6.
[30] The defendants neither in their Written Statement nor in their
oral evidence denied the plea of plaintiffs that the suit land was allotted to
them. The Defendants only pleaded that in support of their claims that the
suit land was allotted to them, the plaintiffs did not produce any document.
It is surprising that even though the plaintiffs along with their plaint have
produced the allotment order still the defendants took their plea that no
documentary evidence is adduced by the plaintiffs to substantiate their
claim that the suit land was allotted to them. It is more surprising that even
at the stage of recording evidence also while the plaintiffs have duly
exhibited the allotment order and the defendants was present all along still
in their turn of adducing evidence the defendants witness reiterated the
same by stating in the affidavit-in-chief that the plaintiffs have claimed
that they have been allotted land pertaining to Plot No. 7027 under Mouja
Santirbazar measuring 0.910 acres, by the then SDO Belonia in the year
1996 vide allotment order No. 788/96.
[31] Here in this case at hand, it is established that the suit land
was allotted to the plaintiff-appellants in the year 1996 and it is admitted
fact that the said allotment of suit land in favour of plaintiff-appellants is
neither cancelled nor withdrawn. As such it can easily be said that in
absence of any order of cancellation and withdrawn the right of plaintiffs
over the suit land as allottee still exists and therefore, the subsequent
allotment of the suit land in favour of Urban Development Department is
not valid. It is true that presently the record of right of the suit land is
published in the name of defendants. But creation of record of right does
not confer any title to them as because without cancelling the previous
allotment order subsequent allotment of the land is not dismissible.
[32] In this respect PW-1 who is one of the plaintiff of this case in
his affidavit-in-chief stated that after the death of his father Jatirndra Kr.
Datta the present plaintiffs were continuing the possession over the suit
land and the suit land was under the construction physical possession of his
father and after his death the present plaintiffs were continuing the
possession over the suit land and that though the record of right in favour
of them was not created in spite of that they were possessing the land and
continued to cultivate the land and produced paddy therein.
[33] In the month of February 2013 Defendant No. 4 started filling
earth in a part of the suit land and the appellants raised objection on
11.02.2013 and the Defendant No. 4 stopped earth filling till the month of
February, 2018 claiming that the suit land has been allotted to them by the
Revenue Authority. It is also stated that they sent notice to Defendant No.
4 to vacate the suit land. PW-2 and PW-3 deposed in the same line that the
predecessor of the plaintiffs as well as the plaintiffs have been possessing
the suit land by producing paddy thereon and that in the 2013 the
Santirbazar Nagar Panchayat dispossessed the plaintiffs from the suit land
and started to earth filling thereon and in the year 2018 the Nagar
Panchayat again started some construction thereon. But it appears that PW-
1, who is one of the plaintiff himself, did not state that in the year 2018 the
Nagar Panchayat again started some construction thereon.
[34] After considering the evidence of PWs in this respect it may
be noted that the statement of PWs that in the month of February 2013
Defendant No. 4 started filling earth in a part of the suit land and the
plaintiffs raised objection on 11.02.2013 and the Defendant No. 4 stopped
earth filling till the month of February, 2018 claiming that the suit land has
been allotted to them by the Revenue Authority is not convincing one,
because it is not understandable how come the appellants remained silent
and did not take any help from any authority for almost five years and
allowed defendant No. 4 to filling earth on the land.
[35] Testimony of PW-1 also reveal that on 06.11.2015 that is
almost after around 3 years from the date of first cause of action the
plaintiffs collected information from the website that the suit land was
allotted to the defendant No.6 and on 09.11.2015 they issued notice under
Section-80 of CPC to the defendants and after waiting for around more
than two (2) years they have filed this suit. Mere stating that the defendant
No.4 started filling earth in a part of the land cannot be construed to mean
that the defendants are in actual possession of the land. In the absence of
any credible and concrete evidence on behalf of the plaintiffs to the effect
that the defendants had illegally taken possession of the suit land this court
cannot hold that the defendants are in actual possession of the suit land.
[36] It is a settled legal proposition that as a rule, relief not
founded on the pleadings should not be granted. Therefore, a decision of a
case cannot be based outside the pleadings of the parties. Ordinarily, the
reliefs are drawn on the basis of pleadings. Even in some cases, on the
basis of pleadings, the court can mould the reliefs. But the foundation of
such relief must have its anchor in the pleadings. It is always the creditor
who has final call in the matter, unless contrary of law and is provided
otherwise by lawful agreement. Having observed thus, the impugned
judgment passed in Title Suit No.01 of 2018 dated 17th January, 2020 by
the learned Civil Judge, Senior Division, South Tripura, Belonia, needs no
interference whatsoever.
[37] In the result, this Court is of the view that there is no infirmity
in the findings arrived at by the learned Civil Judge, Senior Division and
thus, the appeal stands dismissed confirming the judgment and order of the
learned Court below as indicated above. As a sequel, miscellaneous
applications pending, if any, shall stand closed.
[38] Draw the decree accordingly and send down the LCRs
thereafter.
JUDGE JUDGE
A.Ghosh
