Tripura High Court

Sri Sadhan Chandra Chanda vs Sri Binode Shil on 13 September, 2022

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                       HIGH COURT OF TRIPURA
                            AGARTALA
                        RSA NO.01 OF 2020

   1. Sri Sadhan Chandra Chanda,
   Son of late Upendra Ch. Chanda.

   2. Smt. Sefali Chanda,
   Wife of Sri Sadhan Chandra Chanda,

   Both are residents of North Chandrapur(Rajbari Ward),
   P.S.- R.K. Pur, Sub-Division- Udaipur, District-Gomati
   Tripura.

                                  .........Plaintiff-Appellant(s)
                   Vs.
   1. Sri Binode Shil,
   Son of Late Raj Kumar Shil.

   2. Sri Subhas Shil,
   Son of Late Rajkumar Shil.

   3. Sri Ratan Shil,
   Son of Late Krishna Kumar Shil,

   All are resident of North Chandrapur (Rajbari Ward),
   P.S.- R.K. Pur, Sub-Division-Udaipur, District-Gomati
   Tripura.

                          ........Defendant Respondent(s)

For the Appellant(s) : Mr. S.K. Deb, Sr. Advocate Mr. B. Debnath, Advocate.

For the Respondent(s) : Mr. D. Bhattacharjee, Sr. Advocate.

Mr. S. Das, Advocate.

Date of hearing           : 06.09.2022

Date of delivery of
Judgment & Order          : 13/09/2022.

Whether fit for reporting : NO.





        HON'BLE MR. JUSTICE T. AMARNATH GOUD

                     JUDGMENT AND ORDER

This present second appeal has been filed under

Section 100 of the Code of Civil Procedure, 1908, read with

Order XLII Rule 1 for reversing the impugned Judgment and

Decree dated 16.07.2018 & 18.07.2018 respectively passed by

the learned Civil Judge, Senior Division, Udaipur, Gomati

Tripura in Title Suit No.21 of 2017 and the impugned Judgment

and Decree dated 30.08.2019 and 02.09.2019 passed by the

learned District Judge, Gomati Tripura, Udaipur in Title Appeal

No.07 of 2018 and thereupon, for decreeing the suit, filed by

the plaintiff-appellants.

2. The facts of the case, in brief, are that the

subject matter of the present suit is land measuring 0.07 acre

under allotted-khatian No.815, Hal Plot No.1613/2762 situated

at Mouja - Uttar Chandrapur appertaining to Hal Plot No.1613

of area 0.20 acres, i.e., total 0.27 acres described in ―A‖

schedule of the plaint. The plaintiff-appellants herein asserted

that considering their possession over "A‖ Schedule land the

competent authority allotted the entire ―A‖ Schedule land in the

names of the plaintiff-appellants herein vide Allotment Order

No.40 dated 26-04-1991. Accordingly, the allottee Khatian

No.815 was prepared in their name on 07-08-1992.

Subsequently, the computerized printed Khatian No.815 was

generated in respect of the said allotted land of the plaintiffs.

But in the said Khatian, erroneously, in Column No.6 the name

and father's name of the plaintiff-appellant No.1 was wrongly

typed as Sadhan Chandra Dey, S/o Upendra Chandra Dey

instead of Sadhan Chandra Chanda, S/o Upendra Chandra

Chanda and also the name of plaintiff No.2 as Sefali Dey

instead of Sefali Chanda. Accordingly, the plaintiffs made a

prayer before the Sub-Divisional Magistrate, Udaipur for

correction of the said error in Column No.6 of the computerized

printed Khatian No.815. The said matter is pending for

disposal. According to the plaintiffs, in the last part of

November 2011 the defendants dispossessed them from the

entire land of Hal Plot No.1613/2762 of an area measuring

0.07 acres which is described as Schedule ―C‖ in the plaint and

which is part of the ―A‖ schedule land. Since then the

defendants have been illegally possessing Schedule "C" land by

constructing dwelling huts and have been residing with their

family members. The remaining land of Schedule ―A" of the

plaint, i.e., the land of Plot No.1614, an area measuring 0.20

acres is described as Schedule ―B‖ land in the plaint. According

to the plaintiff-appellants they have been possessing the

Schedule ―B‖ land as owners to the knowledge of the local

people including the present defendants to date. The

defendants have illegally possessed the ―C" Schedule land since

the last part of November 2011, and, they need to be evicted.

The defendants on 02-06-2017 attempted to dispossess the

plaintiffs from the Schedule ―B‖ land by cutting mud from the

part of the said land but failed due to resistance put up by the

plaintiffs.

3. On the said premises, the plaintiffs prayed for a

decree of declaration of the right, title, and interest over

Schedule "A‖ land along with a perpetual injunction restraining

the defendants from entering into the Schedule ―B‖ land and

for recovery of possession of the Schedule ―C‖ land.

contested the suit by filing the written statement. According to

the defendants, their father was residing at Uttar Chandrapur

from the year 1979 by purchasing some lands adjacent to the

CS Plot No.1174/1658 which was a khas land measuring 0.07

acres. They constructed dwelling huts on 0.07 acre of khas

land in the year 1979 and in the lifetime of their father, they

also constructed a pucca wall with pucca roof with GI sheet

roof and a dwelling house. According to the defendants, the

plaintiff Sadhan Chandra Chanda was a Government employee

and was a resident of Kalaban where he has been residing with

his second wife Smti. Kiran Chanda. His first wife Smti. Sefali

Chanda left him in the year 1990 for Kolkata. Sadhan Chandra

Chanda was the permanent resident of Kalaban with Kiran

Chanda and he had other landed property at Kalaban. Sadhan

Chandra Chanda managed to get allotment order in his and his

first wife, Sefali Chanda's name, in violation of the Allotment

Rules, 1980. The distance between North Chandrapur and

Kalaban is 15 Kms. The defendants' father Late Raj Kumar Shil

filed a case for cancellation of the allotment order in the year

1992 before the SDM and Collector, Udaipur, and the case was

enquired by the Revenue Inspector as per direction of the SDM

and Collector, Udaipur. Subsequently, the predecessor of the

defendants came to learn that the entire inquiry report and the

petition for cancellation of the allotment order were missing

from the office of the SDM. In the year 2000, the defendants'

father Raj Kumar Shil filed another petition for cancellation of

the allotment order for Plot No.1613/2762 of land measuring

0.07 acre before the Court of the DM and Collector, South

Tripura District. The petition was sent for inquiry to the SDM,

Udaipur, and based on the inquiry made by the SDM Udaipur,

the ADM and Collector registered Case No.13 of 2005 under

Section 96 of the TLR and LR Act and notice was issued to

Sadhan Chandra Chanda, the second party to the proceeding.

In the said revenue proceeding it transpired that the land

measuring 0.07 acre under RS Plot No.1613/2762 was being

possessed by Raj Kumar Shil. But, the said case record was

again found missing from the office of the SDM and Collector,

Udaipur. According to the defendants, Sadhan Chandra Chanda

is a politically influential person and he was also convicted in a

Criminal Case and he managed to remove the case record in

connivance with the staff of the SDM's office, Udaipur on two

occasions. The father of the defendants died in the year 2015

and the answering defendants have been residing in the "C‖

Schedule land from their childhood along with their parents.

Subsequently, after their marriage, they have also been

residing in the ―C‖ schedule land with their family members.

According to the defendants, the plaintiffs never possessed the

―C" Schedule land though they managed to get the allotment

order in their name. The plaintiffs tried to enter into the suit

land many times but failed. On the said premises, the

defendants prayed for the dismissal of the suit of the plaintiffs.

5. The trial court frame the following issues in the

suit :-

―(i) Whether the plaintiffs have right, title and interest over the suit land mentioned in the Schedule "A" of the plaint?

(ii) Whether the plaintiffs have fulfilled all the criterion of the Allotment Rule regarding allotment of suit land in their favour?

(iii) Whether the defendants are in wrongful possession of the suit land mentioned in the Schedule "C" of the plaint?

(iv) Whether the plaintiffs are entitled to get a decree as prayed for along with any other relief or reliefs?"

6. In support of their case the plaintiffs examined

one witness namely Shri Sadhan Chandra Chanda and adduced

the following documentary evidence:-

• Original allotment order No.40 dated 26-04-1991 marked as Exhibit-1.

• Allottee Khatian No.815 of Mouja - Uttar Chandrapur standing in the name of the plaintiffs marked as Exhibit-2 (SO).

• RS Map of Mouja - Uttar Chandrapur relating to suit plots marked as Exhibit-3.

7. On the other side, the defendants examined

three witnesses namely- D.W.1 - Shri Binod Shil, D.W.2 - Shri

Pradip Das, and D.W.3 - Shri Ratan Shil, and adduced the

following documents:-

• Certified copy of Revenue Case No.13 of 2005 in connection with Cancellation of Allotment order by the SDM, Udaipur dated 10-03-2006 marked as Exhibit- A. • Field Enquiry Report of Raj Kumar Shil in connection with reference No.1003 dated 21-10-2005 marked as Exhibit-B (SO).

• Prayer for cancellation of allotment record of seven decimal of land pertaining to Dag No.1613/2762 of Khatian No.815 marked as Exhibit- C.

• Certified copy of Ordersheet in Revenue Case No.13 of 2005 in 2 sheets marked as Exhibits-D/1 and D/2. • Petition by Raj Kumar Shil to the SDM, Udaipur marked as Exhibit-E.

8. After hearing both sides, the learned Civil Judge,

Senior Division, Udaipur, Gomati Tripura passed the Judgment

and Decree dated 16.07.2018 and 18.07.2018, thereby

dismissing the suit.

9. Being aggrieved and dissatisfied with the

impugned Judgment and decree dated 16.07.2018 and

18.07.2018 respectively, passed in T.S.21 of 2017, the plaintiffs

preferred a First Appeal marked as Title Appeal No.07 of 2018

before the learned District Judge, Udaipur, Gomati Tripura. After

hearing both the side, the learned District Judge passed the

impugned Judgment and Decree dated 30.09.2019 &

02.09.2019 respectively, thereby dismissing the appeal in the

following terms:-

"In the result, the appeal I dismissed being devoid of merit. Judgment dated 16.07.2018 and decree date 18.07.2018 passed by the learned Civil Judge(Sr. Division), Court No.1, Udaipur in Title Suit No.21 of 2017 is hereby upheld.."

10. Aggrieved thereby, the plaintiff-appellants herein

has preferred this instant second appeal and prayed for the

following reliefs:-

" i) Admit the second appeal;

ii) Issue notice upon the Defendant-Respondent;

iii) Call for the records, appertaining to this Second Appeal;

iv) After hearing, allow this Second Appeal by reversing the impugned Judgment & Decree dated 16.08.2018 & 18.07.2018 respectively, passed by the learned Civil Judge, Senior Division, Udaipur, Gomati Tripura in Title Suit No.21 of 2017, & the impugned Judgment & Decree dated 30.08.2019 & 02.09.2019 respectively, passed by the learned District, Judge, Gomati Tripura, Udaipur in Title Appeal No.07 of 2018, and thereupon, for decreeing the suit, thereby declaring the right, title & interest of the plaintiffs over the suit land, and directly for recovery of possession;

v) The Hon'ble High Court may also pass any further order(s) as may deem fit and proper;"

11. This present second appeal has been admitted on

01.09.2020 and the following substantial questions of law were

formed:-

" (i) Whether the order of allotment of land issued under Section 14 of the TLR & LR Act, 1960 read with Rules 3 and 6 of the TLR & LR Act(Allotment of land) Rules, 1980 can constitute the subject matter of adjudication in a civil suit. In view of the statutory bar, contained in Section 44 and 188 of the TLR & LR Act, 1960?

(ii) Whether in the absence of a determination as to the validity of the order of allotment, by the allotting authority in the right of allotee to continue the possession of the allotted land can be interfered with by a Civil Court?

(iii) Whether the validity of the order of allotment can be examined, after elapse of a period of three years from the date of such allotment, in view of the settled law in this regard?

(iv) Whether in view of this statutory prescriptions, contained in Sections35 and 74 of the Evidence Act, 1872, the enquiry reports(Exbt-C) adduced by the defendants were admissible in evidence, until and unless, the Enquiring Authorities are examined in connection therewith?

(v) Any other substantial question of law urged at the time of hearing of the present second appeal."

12. Heard Mr. S.K. Deb, learned Sr. counsel assisted

by Mr. A. Dey, learned counsel appearing for the appellants as

well as Mr. D. Bhattacharjee, learned Sr. counsel assisted by Mr.

S. Das, learned counsel appearing for the respondents.

13. Mr. S.K. Deb, learned Sr. counsel assisted by Mr.

A. Dey, learned counsel appearing for the plaintiff-appellants

herein submitted that Courts below have committed an error of

law in appreciating that long and continuous possession does

not create title. On the other hand, the plaintiffs obtained the

suit land by way of allotment, and have acquired the right, title,

and interest over the same. Hence they were entitled to

recovery of possession of ―C" schedule of land, by evicting the

defendants therefrom. The Courts below have committed an

error in appreciating that a Civil Court has no jurisdiction, to

determine as to whether the plaintiffs have fulfilled all the

criteria of the Allotment Rules, regarding allotment of the suit

land in their favour inasmuch as these matters pertain to the

functioning of the Revenue Authorities, under the provisions of

the Tripura Land Revenue & Lands Reforms Act, 1960. The

competent authorities had rightly allotted the suit land in favour

of the plaintiffs, and the allotment order issued in connection

therewith had not been canceled till date by the said authority.

As such, it is evidently clear that the said allotment order holds

good, and the Civil Court had no jurisdiction to interfere with the

same. The inquiry report i.e. Exbt-C does not prove the

possession of the predecessor of the defendants, prior to the

date of the said inquiry. The Court below committed an error in

appreciating that an allotment order can be canceled by the

competent authority, within 3(three)years from the date of

allotment, and not posterior thereto. In the written statement,

the defendants have admitted that the allotment order was

issued, in favour of the plaintiffs, which very clearly and

unambiguously manifests that the suit land was duly allotted, in

favour of the plaintiffs, by the competent authority. Stating

thus, learned Sr. counsel prayed to allow this instant appeal.

14. Mr. D. Bhattacharjee, learned Sr. counsel assisted

by Mr. S. Das, learned counsel appears for the respondents

submits that suit is not maintainable for non-joinder of parties.

The plaintiff-appellants herein have not fulfilled the requirement

of Tripura Land Revenue and Land Reforms (allotment of lands)

Rule 1980. The plaintiff-appellants did never possess the ―C‖

schedule of land measuring 0.07 acres. The father of the

answering defendant, Raj Kumar Shil had been possessing the

―C‖ schedule land from the year 1979 A.D. So the question of

dispossession by the defendants does not arise. Paragraph- 5 of

the plaint is totally false. The defendants never dispossessed the

plaintiff from the ―C‖ scheduled land. As the plaintiffs were not

in possession at the time of alleged allotment or prior to or after

in the suit land, so the question of dispossession does not arise.

The plaintiffs are out of possession of the ―A‖ schedule land and

as per TLR & LR(Allotment of Land) Rules 1980, the plaintiffs

have no right, title, and interest in the suit land. The plaintiff-

Sadhan Chandra Chanda managed to get an allotment order in

his name and in the name of his 1st wife Sefali Chanda violating

the Allotment Rules, 1980. The plaintiffs never possessed the ‗C'

schedule land in their name. The plaintiffs tried to enter into the

suit land many times but failed. The answering defendants and

their father now deceased acquired possessory right, title,

interest, and possession over the 'C' scheduled land after

possessing the same for the last 38 years.

15. Heard both sides and perused the evidence on

record.

16. This instant appeal is filed for declaration of right,

title, interest, and recovery of possession. It becomes the

prima facie duty of the plaintiff-appellants herein to claim right

and title. The plaintiff-appellants have to establish the right

accrued in accordance with the law. In so far as the plaintiff-

appellants are concerned, the plaintiffs have claimed the title

over the property by virtue of the allotment order, but, they

have not chosen to array the revenue officials as party

defendants and also have not chosen to summon them as

witnesses to speak on the validity of the allotment order. If the

plaintiffs are having a valid allotment in their favour, and when

there is no dispute on the said allotment and further if there is

no claim on the said allotment, seeking of declaration of title on

the suit land was not warranted.

17. This Court feels that the plaintiff-appellants have

not approached this Court with clean hands. The plaintiff-

appellants have not proved their case beyond reasonable doubt

to say that the plaintiff-appellants were in possession of the

land and were dispossessed and, therefore, seeking relief for

recovery of possession from the defendants. Under whatever

authority, the defendant--respondents are in possession,

admittedly, the father of the defendants has claimed that he

purchased the impugned property way back in the year 1979

and thereafter constructed the house. They are staying in the

said house and after the demise of their father, his grown-up

children are continuing their possession upon the said dwelling

house which is constructed on their land in an extent of 0.07

acres. The plaintiff-appellants have not placed any evidence on

record to show on which date, the defendant-respondents have

dispossessed them and in such case, any complaint to the police

station or any notice to that effect to show that on that

particular date they were dispossessed. The plaintiff-appellants

have also not placed any evidence before the Court to show that

they were in lawful possession and in the enjoyment of the

property under the capacity of the lawful owner. Though there

are several conditions to be followed by the plaintiff-appellants

in the order of allotment, it is not for this Court to go into the

issues as to whether the land is put to use or not for the

purpose the allotment was made, whether the installment

amount as per the allotment is paid or not etc. But, it is

necessary for the plaintiff-appellants to get the Government

authorities examined before the Court to say that the allotment

made in their favour is valid and subsisting and the same is not

canceled and the plaintiff-appellants were the lawful owner.

18. Further as per Rules 6 of the said TLR &

LR(Allotment of Land) Rules, 1980, in allotting land for the

construction of dwelling house, the Collector shall follow the

following order of preference namely :-

(i) jhumia,

(ii) a landless agricultural worker or an artisan not owning any house or site for a house

(iii) an individual evicted under section 15 who does not come in any of the categories mentioned in the foregoing clauses and does not own any house or site for a house and