Sri Samarjit Singha vs Sri Swaraj Singha
2023 Latest Caselaw 308 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                         RSA NO.04 OF 2021

   1. Sri Samarjit Singha,

   2. Sri Satyajit Singha,
   Both, sons of late Harimohan Singha,
   Of village- Vidyanagar, P.S. Kailashahar,
   P.O.- Paiturbazar, District- Unakoti Tripura

                                        ......... Plaintiff-appellant(s)
                      Vs.

   1. Sri Swaraj Singha,
   Son of Late Maipak Singha.

   2. Sri Samar Singha,
   Son of Sri Swaraj Singha,

   Both, of village- Vidyanagar, P.S.- Kailasahar,
   P.O.- Paiturbazar, District- Unakoti, Tripura.

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

For the Appellant(s)        : Mr. G.K. Nama, Advocate.

For the Respondent(s)       : Mr. H. Deb, Advocate.

Date of hearing             : 05.04.2023

Date of delivery of
Judgment & Order            : 18.04.2023.

Whether fit for reporting : YES.


           HON'BLE THE CHIEF JUSTICE(ACTING)

                       JUDGMENT AND ORDER


              This present appeal has been filed against the

 Judgment dated 23.08.2019 passed by the learned Additional
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District Judge, Unakoti Judicial District, Kailasahar, in T.A. 21 of

2019, arising out of the Judgment dated 12.02.2019 passed by

the learned Civil Judge, Junior Division, Kailasahar, Unakoti

District, in T.S. 14 of 2014.

2.           The brief fact of this present second appeal is that

appellants here-in-after referred to as plaintiff-appellants filed

the suit bearing No.T.S.14 of 2014 for declaration of right, title,

and interest along with recovery of possession of the suit land

and for cancellation of relinquishment deed. The plaintiff-

appellants stated that about 200 years ago one Atal Singha &

Maipak Singha resided in village Vidyanagar under Kailashahar

Sub-Division and on basing on Tripura Land Revenue and Land

Reform Act, in the year 1960 khatian were prepared in the

name of ancestors of plaintiff-appellants and defendants. Said

Atal Singha had two sons namely Thabal Singha and Nilo Sinha.

Thabal Singha had two sons namely Late Hari Mohan Singha,

who is the father of the present plaintiff-appellants herein, and

Sachi Mohan Singha. Nilo Singha, S/o- Atal Singha had married

one Smt Thampal Singha and Nilo Sinha expired without any

issue(children) leaving behind his wife Smt Thampal Singha as

the only legal heir who inherited the land of the deceased Nilo

Singha. The said suit property was inherited by the plaintiff-

appellants herein from their grandmother Smt. Thampal Singha
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vide registered deed of WILL No III-12 dated 27.03.1999 and it

was mutated in the name of Thabal Singha vide khatian No

1318/3, CS plot No 6526(p)(sabek) 5824(hal) for total land

measuring 0.191 sataks as bastu (nal) class showing Nilo Sinha

and Thabal Singha as 50 % shareholder of the property each.

Now, after the death of Nilo Sinha his wife i.e. the grandmother

of the plaintiff-appellants gifted the said 50% share of Nilo

Sinha i.e. 0.96 sataks to her grandsons i.e. the plaintiff-

appellants who mutated the gifted property in new khatian No

4883, CS plot No 6526(sabek), 5824/1098 for land measuring

0.095 sataks and the rest 0.96 sataks remained with the legal

heirs of Late Thabal Singha i.e. the plaintiff-appellants, Sashi

Mohan Singha and others. Sashi Mohan Singha is the nephew

of Nilo Sinha and the defendants are the legal heirs of Late

Maipak Singha who have many legal heirs and cunningly the

defendants convinced the plaintiff-appellants who exchanged

land for three excess which the plaintiffs did by executing a

deed of relinquishment and handed over possession of their

land measuring 0.080 acres out of total land measuring 0.095

sataks of Bastu class in khatian No 4883, CS plot No 6526 hal

plot No 5824 on 04.12.2009 to Swaraj Singha who also in

exchange executed deed of relinquishment for land measuring

0.060 acres of bagan class in khatian No 1318-2 and 1318-3
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CS plot No 6526(p), 5823(hal) and another 0.04 acres from CS

plot(sabek) No 6526(p) 5825(hal) and in total 0.100 acres on

08.02.2010 in favour of the plaintiffs. But subsequently, it

came out that the deed is false as Swaraj Singha was not the

only legal heir rather there are 12 other heirs of the said

property jointly owned the land in khatian No 1318-2 CS Plot

No 5626(p)(sabek) and 5823(hal) for land measuring 0.060

sataks and possessed by Sri Thabal Singha, grandfather of the

plaintiffs, as per record of rights. The plaintiff-appellants also

contended that defendant Swaraj Singha in collusion with some

other persons showed in the deed of relinquishment dated

08.02.2010, the land in khatian No 1318-3 CS plot No

6526(p)(sabek), 5825(hal) land measuring 0.040 sataks of

'bagan' class land which at the khatian itself was the recorded

land possessed by plaintiffs' grandfather Late Thabal Singha

and the record of rights is in the name of Sashi Mohan Singha

and others, the legal heirs of the said deceased Thabal Singha.

The defendant Swaraj Singha defrauded the plaintiffs for which

both relinquishment deeds are void and ineffective. The same

was discovered when the defendants as plaintiffs filed a suit in

the year 2012 vide No TS 49(p)/2012         by incorporating 3rd

parties' property within the exchange of land between the

plaintiffs and the defendants by way of twin relinquishment
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deeds. The plaintiffs further mentioned that they issued notice

upon the defendants on 12.12.2013 requesting to handover the

possession of land measuring 0.08 sataks in khatian No 4883

CS plot No 6526(sabek) 5824/10989(hal) expressing their

willingness to handover the possession of the land which they

actually possessed but the defendants did not respond and

retained their possession over the suit land illegally. The

plaintiffs   mentioned   that   the    partition   suit   filed   by   the

defendants vide No TS 49(p) of 2012 before the Court of Ld

Civil Judge(Sr Division), Unakoti, Kailashahar was dismissed

and subsequently, another partition suit had filed in the same

Court with same cause of action vide No TS 2(p)/2013 was also

dismissed. Then after notice the defendants started causing

problems over the possession of the suit land and it was

reported to O/C, KLS PS who submitted PR U/S 145 of CrPC,

and a proceeding was started U/S 145 of CrPC vide NGR case

No 299(M) 2013 and the plaintiffs and the defendants were

directed by Ld SDM, Kailashahar not to enter the suit land and

thus, the suit by the plaintiffs for declaration of right, title and

interest and also for declaring the relinquishment deeds dated

04.12.2009 and 08.02.2010 as void.

3.             The defendant-respondents here-in-after referred

to as defendants in TS 14 of 2014 submitted their written
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statement   denying   the   averments      of   the   plaintiffs   and

contended that plaintiff Nos. 1 & 2 are legal heirs of Late Atal

Singha , S/o Late Balaram Singha and defendant Nos 1 & 2 are

the legal heirs of Lt. Dala Singha, s/o Late Balaram Singha as

per khatian No 1316. Defendants further stated that as per

khatian No 4043 Thabal Singha and Nilo Singha are sons of

Late Atal Singha and were the owner of the land of 25% each

and Maipak Singha, S/o Dala Singha is the owner of 50%

shareholder of the property. As per khatian No 4007 the

disputed plot No 6526 is distributed between three owners as

per their share i.e. Late Thabal Singha and Late Nilo Singha,

25% each and Late Maipak Singha 50% for total land

measuring 0.449 satak. On 11.01.1967 the past record

mentioned in khatian No 4007 was changed by money and

muscle power and Late Thabal Singha by creating a fabricated

document, became the only owner and 100% shareholder of

disputed plot No 6526 for land measuring 0.449 satak but as

per manual record finally published in the year 1990 comprising

38 plots for total land measuring 6.478 acres in khatian Nos.

1318, 1318/2, 1318/3, 1318/4, the record of right comes in the

said khatians and the disputed plot No 6526 measuring 0.449

satak was divided into six shares which is equal to the

measuring area of disputed plot No 6526. The defendants in
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their written statement contended that as per khatian No 1316

Late Maipak Singha is the 50% owner /shareholder of plot No

6526 having share in all the six dags coming from plot No 6526

in the year 1990 and defendant No 1 is the legal heir of Late

Maipak Singha and defendant No 2 is the owner of the

defendant No 1 and are 50 % owner /shareholder on each and

every dag coming out from all 38 nos plot. They have annexed

the survival certificate and registered sale deed in this regard

and as Nilo Singha was 25% share holder of disputed plot No

6526, so after his death, Thampal Singha has no right to

transfer more than 25% from disputed plot No 6526 as per

khatian No 4043. The defendants also denied that Atal Sinha

and Late Maipak Singha are not blood-related. The defendants

mentioned that in an application U/S 95 of TLR & LR Act, 1960

by defendant No 1, the Kanango submitted a report where it is

clearly mentioned that the land ( joint khatian) Nos 1316,

1318, 1319 had been conferred by registered WILL vide No 696

-III-12 dated 15.01.2008 which was executed by Thampal

Singha as legal heir of Nilo Singha to Samarjit Singha and

accordingly they prayed for mutation which was allowed but on

scrutiny, it came out that 0.220 acres was transferred by her

beyond her share and the then RI and Tehsildar reported for

mutation in favour of Samarjit Singha & Satyajit Singha.
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4.              The learned Trial Court after considering all the

materials available on record held that:-

                                „ In the back drop of the contentions both sides I
          am of the view that the relief claimed by the Plaintiff is tenable in the
          eye of law and is not barred by the Section 34 of the SR Act as
          seeking partition in this suit is not a further relief of declaration as
          claimed by the plaintiffs in this suit rather any other relief.
                                And as such I am of view that the plaintiff is
          entitled to right tile and interest over the suit land and recovery of
          possession.
                                And the relinquishment deeds dated 08.02.0210
          marked as exhibit-8 and the relinquishment deed dated 04.12.2009
          marked as exhibit M are in my opinion are void as they are found
          from evidence to be arising out of the same contract and induced by
          fraud and such void.
                                Hence the issues no iii and vi are decided in
          positive in favour of the plaintiff
                                                       ORDER

So in fine, this Court declare the right, title, interest of the Plaintiff over the suit land.

The Defendant side is asked to put the plaintiff in possession over the suit land immediately after removing all the encumbrances therefrom."

5. Aggrieved thereby, the defendant-respondents

preferred an appeal bearing No. Title Appeal No.21 of 2019

before the Court of learned Addl. District Judge, Unakoti Judicial

District Kailashahar against the Judgment dated 12.03.2019 and

decree dated 18.03.2019 passed by the learned Civil Judge (Jr.

Division) Kailashahar, Unakoti, Judicial District in T.S. 14 OF

2014.

6. Vide Judgment and Order dated 23.09.2019, the learned

First Appellate Court disposed of the said appeal in the following

terms:-

" Due the above mentioned facts, circumstances and legal principles, I am of the considered view that the plaintiffs are not entitled to any relief of declaration of exclusive owner of the suit land and

recovery of possession by evicting the defendants from the suit land, which can be possible in a properly constituted partition suit making all the sharers as party and bringing all the joint property in picture and disclosing all the necessary facts about the total quantum of original land and quantum of land transferred by respective share-holder etc. As a result, the judgment and decree passed by the learned trial court is liable to be set aside.

7. Aggrieved thereby, the plaintiffs as appellants herein as

preferred this present appeal praying to set aside the judgment

of the learned First Appellate Court below.

8. This present appellant was admitted on 17.03.2022 and

following substantial questions of law were framed:-

" (i) Whether the non-observance of the law prescribed under Section 17 of the Indian Registration Act can save the validity of the title deeds?

(ii) Whether the Ld. 1st Appellate Court below being the last Court of fact and law has the obligation to appreciate the pleadings and evidence on record properly in accordance with law?"

9. Heard Mr. G.K. Nama, learned counsel appearing for the

plaintiff-appellants as well as Mr. H. Deb, learned counsel

appearing for the defendant-respondents.

10. Mr. G.K. Nama, learned counsel appearing for the

plaintiff-appellants submits that his clients have executed the

impugned exchange deed before the Notary Public and delivered

possession of the suit land, similarly, the respondents also

executed another exchange deed and delivered possession as

agreed. But respondent No.1 alone executed the exchange deed

in respect of the joint land property recorded in khatian

No.1318/2 and also in respect of the land owned by the uncle of

the appellants recorded in khatain No.1318/3, fraudulently. But

the learned 1st Appellate Court below failed to appreciate the

fraud committed by respondent No.1, instead the Court below

made a third case holding that the suit land is the joint property

of both the parties to the case. From the perusal of the

exchange deed which the respondents executed and the

relevant khatian i.e. Khatain Nos.1318/2 and 1318/3, it is

clearly evident that the respondents have transferred in favour

of the appellants the land owned by other people but the

respondents have taken possession of the land owned by the

appellants which learned Court below did not consider.

According to the learned counsel appearing for the plaintiff-

appellants, such evidence made it clear that the respondents by

practicing fraud have taken possession of the land owned by the

appellants. Further, the learned counsel submitted that as per

the Registration Act, a transfer of property value of which is

more than one hundred shall be registered. The Notary public is

not the Registering authority, hence both the relinquishment

deeds are void, and possessing of land based on the said void

deed is also illegal.

11. On the other hand, Mr. H. Deb, learned counsel

submits that judgment as passed by the learned 1 st Appellate

Court is just and proper and needs no interference.

12. Heard both sides and perused the evidence on

record.

13. Here it is evident from the record that the

defendant-respondents were in possession of the suit land from

prior to the relinquishment deeds. Thus the possession of the

defendant-respondents cannot be said to be an act of fraud,

misrepresentation, and illegal.

14. However to the extent of declaration of documents

is concerned, the appeal is allowed in terms of the lower Court

Judgment as the same seems to be just and proper. But, it is

obligatory for the plaintiff-appellants to ask for partition in every

case. The respondents herein being the co-owners, it is a settled

proposition of law that every co-owner has right over every inch,

part, and parcel of the joint land. Without filing a partition suit a

co-owner/co-sharer cannot be dispossessed from joint land. A

co-owner can be dispossessed if there is material that the said

co-owner had taken possession illegally or by force dispossessed

another co-owner. As shares of everybody are involved in the

said landed property, liberty is given to them to take steps, in

accordance with the law.

15. With the above observation and direction, this

present second appeal is partly allowed to extend indicated

here-in-above. Stay if any stands vacated. Pending

application(s), if any also stands closed.

CHIEF JUSTICE (ACTING)

suhanjit