Sri Pradip Debnath vs Sri Kamal Ghosh
2022 Latest Caselaw 850 Tri

                             Page 1 of 12


                   HIGH COURT OF TRIPURA
                         AGARTALA
                     RSA NO.11 OF 2020

Legal representatives of Babul Debnath alias Babul Nath:

1. Sri Pradip Debnath,

2. Sri Anup Debnath,
- Both sons of late Babul Debnath alias Babul Nath.

3. Smt. Khuku Rani Debnath,
-Wife of Late Babul Debnath alias Babul Nath.

- All resident of Krishnanagar, P.O.-Srinagar, P.S. Manu,
  Sabroom, District: South Tripura.

Legal representatives of Late Sukumar Nath

4. Sri Dilip Debnath alias Dilip Nath,
Son of Sukumar Debnath alias Sukumar Nath,
-resident of Krishnanagar,
P.O.- Srinagar, P.S. Manu, Sabroom,
District-South Tripura.

5. Smt. Anjana Debnath alias Anjana Nath,
Wife of Sri Makhan Nath,
Resident of Old Office Tilla, P.O. & P.S: Sabroom,
District: South Tripura.

6. Smt. Archana Debnath alias Archana Nath.
Wife of Sri Narayan Nath,
Resident of Bankar, P.O. & P.S: Belonia,
District: South Tripura.

7. Smt. Sanjana Nath,
Wife of Sri Harekrishna Nath,
Resident of Baikhora, P.O. & P.S: Baikhora,
District: South Tripura.


                               -----Defendants-Appellant(s)

                              Versus
                                Page 2 of 12


1. Sri Kamal Ghosh,
Son of Rabindra Kumar Ghosh.

2. Sri Amal Ghosh,
Son of Rabindra Kumar Ghosh,

3. Smt. Maya Rani Ghosh(Dhar),
Daughter of Rabindra Kumar Ghosh,

4. Smt. Mamata Ghosh(Datta),
Daughter of Rabindra Kumar Ghosh,

- All of them are resident of Village & P.O: Srinagar,
- P.S: Manu, Sabroom, District: South Tripura.

5. Sri Ratan Ghosh,
Son of Rabindra Kumar Ghosh,

- Residing at South Santoshpur, Ghosh Para,
P.S. Jadavpur, Kolkata-700023, West Bengal.

-The respondents 2, 3, 4 and 5 are represented by their

Attoney Kamal Ghosh-Respondent No.1.

----- Plaintiffs-Respondent(s)

For the Appellant(s) : Mr. D.K. Daschoudhury, Advocate.

For the Respondent(s) : Mr. S.M. Chakraborty, Sr. Advocate.

Ms. A. Pal, Advocate.

   Date of hearing and delivery of
   Judgment & Order              : 13.09.2022.

   Whether fit for reporting     : NO.


                       BEFORE
        HON'BLE MR. JUSTICE T. AMARNATH GOUD

            J U D G M E N T & O R D E R(ORAL)

This instant second appeal has been filed under

Section 100 of the Code of Civil Procedure, 1908(for short,

„CPC‟) aggrieved by the judgment and decree dated

13.12.2019 and 16.12.2019 passed by the learned District

Judge, Gomati District, Tripura, Udaipur in T.A. 12 of 2007,

whereby, the learned First Appellate Court set aside the

judgment and decree dated 29.03.2007 and 04.04.2007

respectively passed in T.S. 11 of 2006 by the learned Civil

Judge(Sr. Division) South Tripura(now Gomati) District,

Udaipur.

2. The facts of the case in brief leading to this

present second appeal are that Smt. Jyotsnamoyee Datta

under a registered deed No.1-398 dated 20.03.1970 purchased

from one Jogesh Debnath land described in the schedule 'A' of

the plaint. The suit land as described in schedule 'B' of the

plaint is situated within the land described in schedule 'A' of the

plaint. The purchased land was looked after by her husband

Rabindra Kumar Ghosh. In the year 1980, said Jyostsnmoyee

Ghosh permitted Sukumar Nath (predecessor of appellants-4 to

7) and Babul Nath (predecessor of appellants-1 to 3) to occupy

schedule 'B' land which is the suit land with the condition to

vacate the same as and when it would be required by

Jyostsnamoyee Ghosh or her successors. Smt. Jyotsynamoyee

Ghosh died on 01.11.2004 leaving behind the plaintiff-

respondents as her legal heirs in equal shares. The plaintiff-

respondents asked the appellants to vacate the possession of

the suit land. As they denied, the plaintiff-respondents served a

notice upon the defendants on 31.03.2006 to vacate the suit

land. In a written reply, the defendants categorically refused to

vacate possession of the suit land. Hence the plaintiff-

respondents filed T.S. 11 of 2006 in the Court of Civil Judge(Sr.

Division), South Tripura, Udaipur for declaration of right, title

and interest, recovery of possession, and also for mesne profit

@ Rs.500/- per day commencing from 01.07.2006 till recovery

of possession. The plaintiff-respondents valued the suit at

Rs.1,00,000/- for the purpose of jurisdiction and paid the Court

fee of Rs.2558.25 only.

3. The defendants entered their appearance by

filing a joint written statement claiming inter alia, that the suit

was barred by limitation, not adequately valued, adequate

Court fee was not paid and therefore, it was not maintainable.

They denied each and every averment of the plaint stating that

the plaintiffs' never exercised possession over the suit land and

that they are not occupying the suit land as permissive

possessor under the plaintiffs, but they are exercising adverse

possession all along since 1966 A.D. by raising construction.

There on, the defendants denied the right, title, and interest of

vendor Jogesh Chandra Debnath and the plaintiffs as well. They

also denied the claim of any mesne profit. Ultimately, the

defendant-appellants urged for dismissal of the suit.

4. After hearing both the parties and perusing the

evidence on record, the learned trial Court dismissed the suit.

5. Being aggrieved and dissatisfied with the

judgment and decree as passed by the Trial Court, the plaintiffs

preferred an appeal under Section 96 of the CPC before the

learned District Judge, South Tripura, Udaipur (presently,

District Judge, Gomati) registered as T.A.12 of 2007. The same

was dismissed by delivering judgment and decree dated

10.12.2007 for non-payment of adequate Court fee by the

plaintiff-appellants.

6. Aggrieved by the judgment and decree passed

by the first Appellate Court, the plaintiff-appellants preferred a

second appeal under Section 100 of CPC before this Court

which was registered as RSA No.17 of 2008. This Court decided

the said second appeal on 01.07.2014 with the order and

direction as quoted below:-

"This Court has considered the submission of the learned counsel for the parties as well as Section 149 of the Civil Procedure Code, (for short "CPC"). This Court has also gone through the

impugned judgment from which it appears that the learned appellate court disagreed with the findings of the trial court but dismissed the appeal only on the ground of non-payment of court fees. According to this Court, when the plaintiffs failed to deposit the whole or part of the prescribed court fees, the court has the discretion to allow the plaintiffs, by whom such fee is payable, some time to pay the deficit court fees, and upon such payment the court can pass a decree. But in the instant case, admittedly the learned appellate court failed to act in compliance with Section 149 of CPC. Therefore, it would be proper for this Court to set aside the impugned decree passed by the learned first appellate court and remit the matter back to be decided afresh, in accordance with law, taking note of the provisions of Section 149 CPC. Accordingly, it is ordered."

7. On receipt of the records on remand, learned

District Judge, Udaipur took up the case No.T.A.12 of 2007 for

hearing and decision afresh as per direction of this Court. The

learned first Appellate Court allowed the appeal and passed

judgment and decree on 04.03.2015 and 11.03.2015

respectively in favour of the plaintiff-appellants therein.

8. The defendants-respondents (appellants herein),

being aggrieved and dissatisfied with the judgment and decree

dated 04.03.2015 and 11.03.2015 passed by the learned first

Appellate Court preferred a second appeal under Section 100 of

the CPC before this Court in RSA No.20 of 2015. This Court

decided the said second appeal by the order dated 14.08.2018,

the concluding portion of which is quoted below:-

"It steers clear the issue that the plaintiffs who have not paid the proper court fees have the obligation to offer a „legally acceptable explanation‟ for not depositing the court fees within the period of limitation. Only after that, the court can exercise that jurisdiction [see Section 149 of the Cr.P.C]. It is not the law that the

court can indiscriminately exercise the discretion without attend to the explanation as provided. If such exercise is carried in that manner, then there will be, obviously, an element of bias in favour of the plaintiffs and that is not valid in exercise of jurisdiction by the civil court. Hence, this court accepts the foundation of objection as raised by Mr. Das Choudhury, learned counsel appearing for the appellants that the plaintiffs ought to have filed a proper application before the first appellate court in terms of the judgment of this court offering the „legally acceptable explanation‟ for not paying the court fees. But that was not so done and the defendant-appellants did not get the rightful opportunity to make their reply. By a mere stroke of pen, the payment has been accepted by the first appellate court without any application with such explanation. For the reasons as stated above, this court is of the view that the judgment as challenged in this appeal is liable to be interfered with and accordingly, the same set aside and quashed. Having struck a balance vis-à-vis the judgment dated 01.07.2014, as this court has serious reservation in respect of the law as propounded by the said judgment, but since that judgment was not challenged and the matter was remitted to the first appellate court, the plaintiffs now shall file an application providing the „legally acceptable explanation‟ why the plaintiffs did not file the court fees despite the direction of the trial court. If the fist appellate court found the reasons acceptable, only then the first appellate court may exercise its discretion as provided under Section 149 of the CPC. It is made clear that the direction as given by the judgment dated 01.07.2014 is for fresh hearing on all the aspects of objections. Thus, the appeal shall be heard on all the relevant grounds of objection as raised in the memorandum appeal as filed by the plaintiffs.

[12] Having observed thus, this appeal stands allowed to the extent as indicated above. Draw the decree accordingly. Send down the LCRs thereafter. Before parting, this court finds it apposite to note that the first appellate court having received the records from this court along with a copy of this order shall fix a date for taking appropriate step having regard to the observation as reflected in this judgment and order.

9. On receipt of the records, the learned First

Appellate Court vide its order dated 17.05.2019 passed in

T.A.12/2007 directed the plaintiffs to deposit the deficit Court

fee in the Trial Court. Finally, the learned lower Appellate Court

heard both sides and delivered the judgment and decree on

13.12.2019 and 16.12.2019 respectively in T.A.12 of 2007

whereby lower Appellate Court set aside the judgment and

decree passed by the learned Trial Court in T.S.11 of 2006.

10. The present second appeal has been filed by the

defendant-appellants herein being aggrieved by the judgment

and decree dated 13.12.2019 and 16.12.2019 passed by the

lower Appellate Court in T.A.12 of 2007 wherein the Court

below allowed the appeal filed by the plaintiff-respondents

herein.

11. This present second appeal herein has been

taken on record and admitted by this Court on 19.03.2020. On

the same date, the following substantial question of law was

framed:-

"Whether the remarks in the remark column of the Khatian made during the settlement operation can be rebutted by oral evidence at trial in the civil Court to determine nature of possession of the suit land in question?"

12. During the course of argument, Mr. D.K.

Daschoudhury, learned counsel appearing for the appellants

has also drawn the attention of this Court to the substantial

question of law No.2 which has been filed along with the

appeal, and the same is reproduced herein-under:-

" Whether the first appeal as well as the suit is not maintainable for not amending the plaint by incorporating a statement of valuation of the suit in adherence to the provisions of Rule 1(i) and 11(b) of Order VII read with section 149 of the

CPC disregarding the direction of the Hon‟ble High Court by the Plaintiffs-respondents?

13. During the course of the argument, Mr. D.K.

Daschoudhury, learned counsel appearing for the defendant-

appellants herein has submitted on the issue of the second

substantial question of law that the orders passed by this Court

in RSA No.20 of 2015 were not followed by the Court below.

Thus this present appeal needs to be allowed and the order of

the lower Appellate Court needs to be set aside and the same

has to be remanded back.

14. In so far as the substantial question of law No.1

is concerned, learned counsel appearing for the appellants

herein argued that the entries in the revenue record showing

the possessionary column of the remarks reflects that the

appellants are in possession of the suit scheduled property and

thus they are entitled to the possession. Since 1960,

possession has been handed over to them by one Smt.

Jyotsnamoyee Ghosh and they have constructed a small

dwelling hut and are conducting business in the suit scheduled

property. Stating thus, learned counsel appearing for the

appellants herein prayed to allow this instant appeal and

dismiss the order passed by the lower Appellate Court.

15. Mr. S.M. Chakraborty, learned Sr. counsel

assisted by Ms. A. Pal, learned counsel appearing for the

plaintiff-respondents submits before this Court on the issue of

the first substantial question of law that, any entries in the

khatian which has been prepared by the revenue department

cannot be gone into as deciding the same falls within the

jurisdiction of the Civil Court since the same is barred under

Section 44(2) of the TLR & LR Act. Further, in so far as the

entries are concerned, he placed reliance upon Section 43 of

the TLR & LR Act wherein it is mentioned that unless and until

entries in the remark are rebutted and the same has been

modified by the competent authority under the Act, the said

entries continued to be valid.

16. In so far as the second substantial question of

law is concerned, learned Sr. counsel contended that with

regard to payment of any deficit Court fees is concerned, it

cannot be framed as a substantial question of law as the

concerned Court can always give a direction for making the

deficit Court fees good. Unless and until the deficit Court fee is

deposited, it is needless to say that the order becomes

inexecutable.

17. In so far as the direction passed in RSA No.20 of

2015 is concerned, learned Sr. counsel has drawn the attention

of this Court to the Page No.12 of the Judgment which is on

page No.175 of the paper book prepared by the Registry,

wherein the Court below has categorically given a finding that

in terms of the RSA No.20 of 2015, the deficit Court fee of

Rs.2,635/- has been paid to the firisti and accordingly, the

issue has been closed since the amount has been deposited

way back in the year 2019 itself.

18. Heard both sides and perused the evidence on

record.

19. The first substantial question of law that any

entries in the khatian which has been prepared by the Revenue

Department cannot be gone into as deciding the same falls

within the jurisdiction of the Civil Court since the same is

barred under Section 44(2) of the TLR & LR Act. Further

Section 43 of the Act clearly mentions that unless and until

entries in the remarks are rebutted and the same are modified

by the competent authorities, the said entries continue to be

valid. The appellants herein have not taken any steps with the

Revenue Department to get the records corrected. So, the

relief claimed by the appellants cannot be granted in the light

of the above findings.

20. In so far as the 2nd substantial question of law is

concerned, it is seen from the record that the appellants have

not challenged the action of the Court below in accepting the

Court fees which is said to have been collected towards the

deficit Court fee and also closing the issue way back in the year

2019. So the said issue has attained quietus. The payment of

deficit Court fee cannot be treated as a substantial question of

law and since the said issue has attended its finality in the year

2019 itself and which stood unchallenged, the argument now

raised by the learned counsel of the appellants on this issue

becomes non-est in the eye of the law.

21. In view of the above, the present second appeal

stands dismissed.

22. Consequently pending application(s), if any, also

stand closed.

Send back the LCRs.

JUDGE

suhanjit