Tripura High Court
Sri Binode Mallik vs Sri Chandan Nath And Ors on 4 September, 2023
Page 1 of 2
HIGH COURT OF TRIPURA
AGARTALA
RSA No.22 of 2023
Sri Binode Mallik
....Appellant(s)
Versus
Sri Chandan Nath and Ors.
....Respondent(s)
For the Appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate
Mrs. Ankita Pal, Advocate
For Respondent(s) : None
HON'BLE MR. JUSTICE ARINDAM LODH
Order
04/09/2023
Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Mrs.
Ankita Pal, learned counsel appearing for the appellant.
This is a second appeal filed by the original defendant, appellant herein
against the judgments passed by the Courts below in favour of the plaintiff-
respondents.
The fact of the case is that the plaintiff-respondents have instituted a suit
for declaration of right, title and interest along with a prayer of recovery of Khas
possession of the suit land prescribed in Schedule B of the plaint. The plaintiffs
have taken a plea in their prayer that their purchased deed comprises the suit
land described in Schedule 'B' of the plaint. The defendant-appellant on being
summoned contested the suit by filing written statement. Both the parties
adduced their respective evidences. On their consent, issues were framed.
Learned trial Judge after considering the evidences and materials on record came
to a finding that the plaintiff-respondents have been able to establish that their
purchased deed i.e. the title deed comprises land of Schedule B described in the
plaint, and accordingly, decreed the suit in favour of the plaintiff-respondents.
Feeling aggrieved, the defendant had preferred a first appeal before the
Court of learned District Judge, North Tripura, Dharmanagar. Both the parties
argued the case before the court of learned first appellate Court. The first
appellate Court having heard the arguments and after examining the evidences
available on record did not find any ground to interfere with the findings of the
learned trial Court. Accordingly, the first appellate Court had upheld and
affirmed the judgment passed by learned trial Court.
Being aggrieved by and dissatisfied with the judgments passed by the
Courts below, the defendant-appellant has preferred the instant second appeal
before this Court.
The matter has come up for admission. In my opinion, to admit the second
appeal, the appellant has to substantiate whether the appeal consists of
substantial questions of law.
Mr. Chakraborty, learned senior counsel has eloquently submitted that both
the Courts below have erroneously came to a finding that the suit land described
in Schedule B of the plaint attracts the title deed of the plaintiffs. According to
learned senior counsel, it was the duty of the Court to appoint a survey
commissioner to identify the land in question.
I find no force in the submission of learned senior counsel. It is settled
proposition of law that if the Courts find that the land is adequately identifiable
from the pleadings as well as from the evidences of the parties, there is no need
to appoint a survey commissioner for identification of the suit land. Moreso, if
one of the contesting parties, particularly, the defendant raises a question of
identification of the suit land, he could raise this plea before the learned Courts
below and seek for appointment of survey commissioner to identify the suit land.
In the instant case, the defendant-appellant had not taken the recourse of law for
the reasons best known to him. As such, he is estopped of raising the plea which
is directly related to a question of fact.
In view of this, I do not find any ground to formulate substantial question
of law for the purpose of admitting this appeal.
Accordingly, the instant second appeal stands dismissed.
Pending application(s), if any, also stands dismissed.
JUDGE
SANJAY Digitally signed by
SANJAY GHOSH
GHOSH 16:12:32 +05'30'
Date: 2023.09.04
Snigdha
