Tripura High Court
Sri Ranjit Paul vs Sri Subhash Chandra Paul on 6 February, 2024
HIGH COURT OF TRIPURA
AGARTALA
RSA NO.51 of 2022
Sri Ranjit Paul,
S/o. Late Suresh Chandra Paul @ Suresh Paul, aged about
54 years,
Resident of Village- Ujan Dudhpur,
P.S.- Kumarghat, P.O.-82,
District- Unakoti Tripura.
..........Plaintiff- Appellant.
Versus
Sri Subhash Chandra Paul,
S/o. Late Suresh Chandra Paul @ Suresh Paul,
Resident of Village-Ujan Dudhpur,
P.S.- Kumarghat,
District-Unakoti Tripura.
.....Defendant-Respondents.
For Appellant(s) : Mr. S. Lodh, Adv.
For Respondent(s) : Mr. Ratan Datta, Adv.
Date of Hearing : 01.02.2024
Date of delivery of
Judgment and Order : 06.02.2024
Whether fit for
Reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment &Order
The appellant, Ranjit Paul has preferred this
appeal under Section 100 of CPC challenging the judgment
and decree dated 11.05.2022 passed by the Learned District
Judge, Unakoti District, Kailashahar in Title Appeal No.33 of
2019 whereby the Learned District Judge, Unakoti District
Kailashahar has upheld the judgment dated 06.04.2019 and
decree dated 09.04.2019 passed by the Learned Civil Judge,
Senior Division, Kailashahar, Unakoti District, Court No.1 in
T.S. 35 of 2018.
02. Before coming to the conclusion of this appeal, let
us revisit the subject matter of the dispute.
The present appellant as plaintiff filed one suit
before the Court of Learned Civil Judge, Senior Division,
Kailashahar, Unakoti District, Court No.1 for granting decree
of a declaration that the plaintiff has right, title, interest over
the suit land as described in Schedule 'A' of the plaint and for
recovery of possession of the suit land along with mud
house, kacha house and cow shed by evicting the defendant
and also removing all obstructions. The subject matter of suit
of the plaintiff before the Learned Trial Court is that the
father of the plaintiff and the defendant hereinafter called
the respondent Suresh Chandra Paul alias Suresh Paul was
the original owners in possession of the suit land measuring
2 acres of Khatian No.1218, R.S. Plot Nos.2418/3611, 2419,
2420/3612 corresponding to Old C.S. Plot Nos.1618(p),
1805(p) by way of allotment. Said Suresh Paul expired on
15.01.1999 and his wife Kukil Rani Paul expired on
18.05.1984. Suresh Chandra Paul during his lifetime
executed one Will Vide No.2643 dated 27.11.1992 and the
same was registered before Sub-Registrar, Kailashahar and
by the said Will he bequeathed the aforesaid property in
favour of the plaintiff. One Biresh Paul was made an
executant of the Will and after the death of his father, the
plaintiff came to know about the execution of Will from said
Biresh Paul and after that the plaintiff applied for mutation of
the said land in his favour and the said land measuring 2
acres i.e. the suit land was mutated Vide MR.No.20120007
and Khatian No.1218 was created in his name.
03. It was further submitted that the defendant
hereinafter referred as respondent also got 2 acres of land in
his name from the property of his father during his lifetime
and their two sisters were given marriage and they are
respectively residing to their husband's house. According to
the plaintiff, after mutation, since 2012 he was possessing
the suit land by making construction but since he was a
private employee and serving at Guwahati, so, on
05.05.2018 the defendant occupied the house of the plaintiff
and on 07.05.2018 the plaintiff came to the suit land after
getting information and requested the defendant to vacate
the same in presence of the villagers when he refused to
vacate the same.
04. It was further submitted that in the year 2017,
the defendant tried to enter into the suit land for which a
case was filed under Section 145 of Cr.P.C. before the Court
of SDM, Kumarghat and the said case was disposed of on
17.02.2017.
05. It was further asserted that the plaintiff made an
agreement for sale with one Laxmikanta Acharjee of the suit
land by taking advance consideration of Rs.80,000/- on
15.01.2018, but the defendant created obstruction, hence
the plaintiff-appellant filed the suit. The suit of the plaintiff
was contested by the defendant by filing W.S. In the written
statement, it was submitted that the suit was not
maintainable and the same was bad for non-joinder of
necessary party as one Subrata Sarkar was not made party,
who was in possession of a part of suit land measuring 0.66
acres. But said Subrata Sarkar was made a party in the
proceeding before SDM, under Section 145 of Cr.P.C. It was
further submitted that the defendant has been using and
possessing the suit land since 1992, by constructing a pucca
house with full knowledge of the plaintiff and their father
adversely denying the right, title, interest of their father,
mother and plaintiff peacefully, continuously without any
disturbance and also acquired title by way of adverse
possession and the suit was barred by limitation.
06. The answering defendant further submitted that
their father did never execute any Will in respect of the suit
land in favour of the plaintiff and questioned Will was created
fraudulently by creating illegal pressure upon their father as
the defendant has been possessing Hal Plot No.2419
measuring 34 decimals. The defendant further took the plea
that Khatian was created in the name of the plaintiff without
observing required formalities. The defendant also submitted
that the case filed by the plaintiff under Section 145 of
Cr.P.C. was dismissed by SDM after enquiry as it was
revealed from the enquiry report that the defendant was
possessing Plot No.2419 and Hal Plot No.2420/3612
measuring 0.66 acres is under peaceful possession of
Subrata Sarkar and hence, the defendant by filing written
statement prayed for dismissal of the suit of the plaintiff.
07. Upon the pleadings of the parties, Learned Trial
Court below framed the following issues:
(i) Whether the suit is maintainable?
(ii) Whether the suit is bad for non-joinder of
necessary party?
(iii) Whether the WILL No.III-10 dated
27.01.1992 is valid or created fraudulently by
creating illegal pressure?
(iv) Whether the defendant perfected title
over the suit land by way of adverse
possession?
(v) Whether the plaintiff is entitled to the
relief as prayed for and or any other relief or
reliefs in this suit?
08. To substantiate the issues both the parties have
adduced their oral and documentary evidence before the
Learned Trial Court:
APPENDIX
(A) Plaintiffs‟ Exhibits:-
Ext.-1:- Khatian No.1218.
Ext.-2:- Khatian No.903.
Ext.-3:- Death certificate of
deceased Suresh Chandra Paul.
Ext.-4:- Death certificate of deceased
Kukil Rani Paul.
Ext.-5:-Survival certificate of deceased
Suresh Chandra Paul.
Ext.-6:- WILL No.III-10 dated
27.11.1992.
Ext.-6(i):- Signature of Suresh
Chandra Paul in the WILL identified by
PW.1.
Ext.8:- Orders passed by Executive
Magistrate in case No.Misc 26(M)/2017
U/S 145 of Cr.P.C.
(B) Plaintiff‟s Witnesses:-
PW.-1 Sri Ranjit Paul.
PW.-2 Sri Chitta Ranjan Nama.
(C ) Defendant‟s Witnesses:-
DW.- Sri Subhash Chandra Paul.
No documentary evidence was adduced by the
defendant-respondent of the case.
09. However, after taking evidence on record and
after hearing both the sides Learned Trial Court below gave
the following judgment/order. The operative portion of the
judgment runs as follows:
"In the result, the suit of the plaintiff is
decreased on contest without cost with
a declaration that plaintiff is allottee
co-owner/co-sharer of the suit land
along with defendant and other sharers
being the legal heirs of Suresh Chandra
Paul @ Suresh Paul.
The plaintiff is directed to pay deficient
court fees, before this court within 30
days from today to make the judgment
and decree effective, accordingly to the
value of the suit land Rs.1,25,000/- in
view of Clause (v) of Section 7 of the
Court Fees Act deducting the court of
Rs.70/-, which has already been paid.
The suit is disposed of contest without
cost."
10. Challenging that judgment, the plaintiff-appellant
preferred First Appeal before the Learned District Judge,
Unakoti District, Kailashahar which was numbered as Title
Appeal No.33 of 2019. It is to be noted here that before the
Learned First Appellate Court, the plaintiff-appellant filed one
application under Order 41 Rule 27, read with Section 107 of
CPC praying for allowing additional evidence by calling the
witness Md. Makuddas Ali Khadim or to remand back the suit
to the Lower Court. Accordingly, Learned First Appellate
Court by order dated 19.09.2019 allowed the prayer of the
appellant and directed the Learned Trial Court to record the
additional evidence of witness Md. Makuddas Ali Khadim and
thereafter to return back the case record to the Learned First
Appellate Court again and accordingly, Learned Trial Court
recorded the additional evidence of witness and returned
back the record to the Learned First Appellate Court and
finally, after hearing arguments of both the sides, Learned
First Appellant Court by a judgment dated 11.05.2022
uphold the judgment and decree passed by Learned First
Appellate Court with certain modification and accordingly,
decree was drawn up. The operative portion of the judgment
of the Learned First Appellate Court runs as follows:
"In the result the appeal filed by the
plaintiff-appellant, namely, Sri Ranjit
Paul stands fails being devoid of merit
and it stands dismissed.
However, while upholding the judgment
and decree passed by the learned trial
court the same is modified relating to
payment of Court fees by plaintiff-
appellant as the same has not been
challenged by defendant-respondent
side.
Prepare appellate decree accordingly.
Send down the LCR along with a copy of
this judgment.
The case stands disposed of
accordingly."
Challenging that judgment and decree the present
appellant preferred this Second Appeal before the High
Court.
11. At the time of admission of the appeal the
following substantial question of law was formulated by this
Court by order dated 23.03.2023:
"1. Whether the judgment passed by
learned first appellate confirming the
judgment of the trial court is perverse?
2. Whether non consideration of the
evidence adduced by PW.3 on behalf of
plaintiff is bad law?"
12. Heard argument of Mr. S. Lodh, Learned Counsel
for the appellant and also Mr. Ratan Datta, Learned Counsel
appearing for the respondent-defendant.
Learned Counsel for the appellant at the time of
hearing submitted that the present appellant filed one suit
for declaration of title and for recovery of possession before
the Learned Civil Judge, Senior Division, Kailashahar,
Unakoti District. But in the said suit, no decree was granted
regarding recovery of possession of the suit land by the
Learned Trial Court but the Learned Trial Court held that the
plaintiff-appellant is an allottee co-owner/co-sharer of the
suit land along with the defendant and other sharers which
was also erroneous and perverse.
13. Learned Counsel also submitted that thereafter
the said plaintiff-appellant preferred appeal before the
Learned First Appellate Court and before the Learned First
Appellate Court the present appellant filed one application
under Order 41 Rule 27 of CPC read with Section 107 of CPC
on 03.09.2019 for adducing additional evidence by calling
one witness Md. Makuddas Ali Khadim and thereafter,
Learned First Appellate Court by order dated 19.09.2019
allowed the prayer of the plaintiff-appellant and directed the
Learned Trial Court i.e. Civil Judge, Senior Division to record
additional evidence of Md. Makuddas Ali Khadim after
observing all formalities. Learned Trial Court recorded the
evidence of said Md. Makuddas Ali Khadim and after receipt
back of the case record, Learned First Appellate Court after
hearing both the sides delivered the judgment and decree.
But unfortunately, Learned First Appellate Court could not
legally appreciate the evidence on record of the said witness,
Md. Makuddas Ali Khadim in respect of proving the disputed
'Will' as per Section 69 of the Evidence Act and also came to
an erroneous and perverse finding.
Learned Counsel for the appellant further drawn
the attention of the Court referring the para no.4 of the
plaint submitted before the Learned Trial Court and also the
written statement filed by the respondent-defendant in para
no.4 and last part of para no.5 of the written statement and
submitted that since the Learned Trial Court already hold
that the respondent-defendant has failed to prove his right of
adverse possession over the suit land, so, the respondent-
defendant is liable to be evicted from the suit land.
14. He further submitted that the respondent
defendant in one side has taken the plea of his long
possession over the suit land, in another side he has taken
the plea of adverse possession which are contradictory to
each other. Learned Counsel for the appellant further
submitted that from the evidence of PW-1, in his
examination-in-chief, it is proved that he had identified the
signature of his deceased father on the Will which were
marked as Exhibit-6/1 series. But there was no cross-
examination in this regard from the side of the respondent-
defendant and further, PW-3 Md. Makuddas Ali Khadim in his
examination-in-chief very specifically identified the
signatures of the deed writer on the Will as well as the
signatures of the attesting witnesses on the Will. Thus,
according to Learned Counsel for the appellant, the plaintiff-
appellant has duly proved the execution and registration of
the Will as required by law under Section 69 of the Indian
Evidence Act. But the Learned First Appellate Court without
considering the said evidence on record came to an
erroneous finding, for which the intervention of the Court is
required. Learned Counsel submitted that the witnesses of
the appellant-plaintiff also supported his case but both the
Courts below did not consider the evidence on record.
Learned Counsel also submitted that since Exhibit- 6(Will)
was duly executed and registered in accordance with the
provisions of law, so, there was no scope to draw any
suspicious circumstances on the same but the Learned Trial
Court below came to an observation that Exhibit-6 was a
suspicious one and similarly, Learned First Appellate Court
also came to the same finding for which the interference of
the Court is required and urged for setting aside the
judgment of the Learned First Appellate Court.
15. On the contrary, Learned Counsel for the
respondent-defendant submitted before the Court that both
the Courts below gave concurrent finding and there is no
merit in this present appeal and submitted that the plaintiff-
appellant has failed to prove his case before the Learned
Trial Court i.e. in respect of Exhibit-6 and the Learned Trial
Court gave a detailed finding which was affirmed by the
Learned First Appellate Court. He also submitted that in para
4 of the plaint, it was asserted that the testator of the Will
had appointed one Biresh Paul as executor of the Will. But
the appellant has failed to adduce said Biresh Paul as witness
to substantiate the disputed Will as genuine before the
Learned Trial Court. Learned Counsel further submitted that
the Sub-Registrar was not produced by the appellant to
prove the contents of the Will. So, there was no scope to
place any reliance regarding due execution of the Will.
16. Learned Counsel further drawn the attention of
the Court referring para 6 of the plaint and submitted that on
05.05.2018 the respondent-defendant occupied the suit land
and on 07.05.2018 the plaintiff-appellant requested the
defendant-respondent to vacate this suit land. But referring
the cross-examination part of PW-2, i.e., the witness of the
appellant, who in his cross-examination very specifically
stated that the suit land was under possession of the
respondent-defendant since last 30/35 years. Similarly, PW-
1 in his cross-examination also specifically stated that in Dag
No.2418 his brother Subhasish Chandra Paul made one mud-
wall and GCI sheet house and the said house is there for last
30/35 years. So, the version of the plaintiff-appellant is
contradictory to each other and the story of possession and
dispossession, according to Learned Counsel for the
respondent-defendant was totally a dire falsehood because
according to Learned Counsel for the respondent-defendant,
the plaintiff-appellant never possessed the suit land at any
point of time. So, the question of his possession and
dispossession does not arise. Rather he (defendant)
possessed the same since from the time of his deceased
father. Learned Counsel also at the time of hearing of
argument referred the provision of Section 69 of the Indian
Evidence Act and submitted that the plaintiff-appellant has
failed to prove the Will(Exhibit-6) as required by law and
furthermore, referring the cross-examination part of PW-3,
he also submitted that the said witness could not say that
the Will was made voluntarily. He had no acquaintance with
the testator of the Will, so, no reliance could be placed upon
the evidence of said witness PW-3. So, according to Learned
Counsel for the respondent-defendant, the Learned Trial
Court rightly and reasonably and thereafter, the Learned
First Appellate Court rightly delivered the judgment
dismissing the appeal of the present appellant.
17. Learned Counsel also submitted that in Exhibit-6
it was mentioned that the suit land was 'jote' land but
factually, it was an allottee land. There was no explanation in
this regard from the side of the appellant. Furthermore, since
the respondent-defendant has challenged the validity of the
Will, so, it was the duty of the plaintiff-appellant that the
testator was in sound state of mind at the time of execution
of Will. So, Learned Trial Court rightly came to a conclusion
that the Exhibit-6 was of full suspicious circumstances and
ultimately, hold that no relief could be granted to the
plaintiff-appellant on the basis of said Will. Learned Counsel
for the respondent, finally, submitted that the Learned Trial
Court at the time of disposal of the suit had referred so many
judgments of the Hon'ble Apex Court and relying upon those
judgments refused to grant any relief in respect of recovery
of possession. But the Learned Trial Court came to the
conclusion that the plaintiff-appellant was one of the co-
owner/co-sharer of this suit land along with other lands and
there is no substantial question of law involved in this appeal
and at this stage, there is no scope to determine any facts
rather than law. So, Learned Counsel submitted before the
Court for dismissal of the appeal with costs.
18. Learned Counsel of both the sides in course of
hearing also relied upon some citations which would be
discussed in due course. From the arguments of both the
sides, it appears that Learned Counsel for the appellant tried
to convince the Court that the Learned Court below did not
appreciate the Will executed by Suresh Paul i.e. the father of
the parties in favour of the present appellant, which was a
registered one. Learned Counsel for the appellant also
submitted that the present appellant duly proved the Will i.e.
Exhibit-6 as per provision of Section 69 of the Evidence Act
read with Section 63 of the Indian Succession Act. According
to Learned Counsel, the appellant as PW-1 in course of his
examination-in-chief before the Learned Trial Court, duly
proved the Will executed by his father. There is no cross
from the side of the contesting defendant-respondent in this
regard and more so, through the evidence of PW-3, Md.
Makuddas Ali Khadim, the appellant also could prove the Will
as per Section 69 of the Evidence Act. But the Learned First
Appellate Court failed to appreciate the evidence of the said
witness, PW-3. Even the Learned Trial Court did not consider
the evidence of PW-1 regarding execution of Will by the
testator in favour of the appellant.
19. On the contrary, Learned Counsel for the
respondent-defendant submitted that the 'Will' was full of
suspicious circumstances and the appellant could not prove
that the testator was in sound state of mind at the time of
execution of Will and furthermore, from the cross-
examination of PW-3 it also appears that he could not
specifically say regarding the due execution of the Will by the
testator for which Learned Court below came to conclusion
that the Will was under full suspicious circumstances and
ultimately, rejected the Will. Regarding recitals of the Will,
Learned Counsel for the defendant-respondent submitted
that it was an allottee land but on the body of the Will it was
written that it was a 'jote' land. There was no explanation
from the side of the appellant, so, a doubt is created
regarding genuineness of the Will. I have gone through
Exhibit-6 and also gone through the evidence on record.
20. Now, for the sake of convenience, I would like to
refer herein below the relevant provision of Section 63 of the
Indian Succession Act and also the relevant provision of
Section 69 of the Indian Evidence Act:
Section 63 of the Indian Succession Act:
"63. Execution of unprivileged wills.--
Every testator, not being a soldier
employed in an expedition or engaged
in actual warfare, [or an airman so
employed or engaged,] or a mariner at
sea, shall execute his will according to
the following rules:-
(a) The testator shall sign or shall affix
his mark to the will, or it shall be signed
by some other person in his presence
and by his direction.
(b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that
it shall appear that it was intended
thereby to give effect to the writing as
a will.
(c) The will shall be attested by two or
more witnesses, each of whom has
seen the testator sign or affix his mark
to the will or has seen some other
person sign the will, in the presence
and by the direction of the testator, or
has received from the testator a
personal acknowledgment of his
signature or mark, or of the signature
of such other person; and each of the
witnesses shall sign the will in the
presence of the testator, but it shall not
be necessary that more than one
witness be present at the same time,
and no particular form of attestation
shall be necessary."
"Section 69 of the Indian Evidence Act:
69. Proof where no attesting witness
found.--
If no such attesting witness can be
found, or if the document purports to
have been executed in the United
Kingdom, it must be proved that the
attestation of one attesting witness at
least is in his handwriting, and that the
signature of the person executing the
document is in the handwriting of that
person."
From the aforesaid provisions it is clear that for
valid execution of the Will, the Will shall be attested by two
or more witnesses each of whom had seen the testator to
sign or affix his mark to the Will. Here in the case at hand,
the scribe or the attesting witnesses are no more alive. So,
the plaintiff appellant produced one additional witness, Md.
Makuddas Ali Khadim, deed writer, who had the occasion to
work with this scribe as well as the attesting witnesses. Since
all of them were deed writers/Advocate Clerk. As per Section
69 of the Evidence Act, it appears that if the attesting
witnesses cannot be found, it must be proved that the
attestation of one witness atleast is in his hand writing and
that the signature of the person executing the document is in
the hand writing of that person. Because the attestation of a
Will means testifying of signatures of the executors. It is not
just a mere formality to be valid. A Will should be attested
by two or more witnesses and propounder should examine
one attesting witness to prove the Will. Attesting witness
should speak not only about testator signature or affixing his
mark to the Will but also that each of the witnesses had
signed the Will in presence of the testator.
21. Now, if we go through the evidence on record, it
appears that the plaintiff as PW-1 in his examination-in-chief
before the Court identified the signature of his father Suresh
Chandra Paul on the Will which were marked as Exhibit-6/1
series. To counter his evidence there was no cross-
examination from the side of the respondent-defendant in
this regard. Now, if we go through the evidence of PW-3 Md.
Makuddas Ali Khadim, who in course of his examination-in-
chief specifically stated that he knew the hand writing and
signature of the writer of the Will Vide No.III-35 dated
27.11.1992. According to this witness, the writer of the Will
Dhirendra Kumar Datta is no more and accordingly, he
identified the hand writing of the deed writer Dhirendra
Kumar Datta as scribe which was marked as Exhibit-6 and
also the signatures of deed writer Dhirendra Kumar Datta
marked as Exhibit-6(ii) series. The said witness further
stated that the witnesses of the Will Prafulla Ranjan
Dasgupta and Dwijendra Chandra Malakar were also dead
and he knew their signatures as Dwijendra Chandra Malakar
was a deed writer and Prafulla Ranjan Dasgupta was an
advocate's clerk and he identified the signatures of
Dwijendra Chandra Malakar as an attesting witness marked
Exhibit-6(iii) and the signature of Prafulla Ranjan Dasgupta
marked Exhibit-6(iv). Thus, from the evidence it is clear that
the propounder i.e. the plaintiff-appellant of this case rightly
and lawfully proved the execution of Will before the Court
but the Learned First Appellate Court failed to appreciate
that part of evidence and came to an erroneous finding that
Exhibit-6 was not duly proved.
22. Learned Counsel for the respondent although tried
to draw the attention of the Court that said PW-3 had no
idea about said Suresh Chandra Paul, executant of the Will
and he also could not say as to whether the Will executed,
made voluntarily or not. In this regard, it can be said that it
was not possible for PW-3 on that relevant point of time, as
to whether the testator executed the Will voluntarily or not
and it was not his duty also. More so, he was not present at
the time of execution of the Will. Said witness PW-3
appeared in pursuance of Section 69 of the Evidence Act to
prove the signature of the attesting witnesses as well as the
scribe and PW-1 already admitted the signature of his father,
Suresh Chandra Paul.
23. Furthermore, from the contents of the Will, it
appears that the testator, Suresh Chandra Paul during his
lifetime through Exhibit-6 although bequeathed 2 acres of
land in favour of the present plaintiff-appellant and at the
same time he also gifted more 2 acres of land in favour of
the respondent-defendant in support of CS Plot Nos. 2421
and 2416 of Khatian No.1140 and Jote No.791 and further
stated that in course of the marriage ceremony of the
daughters, he gave dowry among them, according to his
capacity and both of them peacefully residing to the
residences of their husbands. So, from the contents of the
Will, i.e. Exhibit-6, it is clear that he has distributed his
property with full conscious and sound state of mind and
presented the same for registration before the Sub-Registrar
after due execution and accordingly, the same was
registered by the Sub-Registrar, Kailashahar and after going
through the contents as well as from the evidence on record,
it appears to this Court that the disputed Will was not made
under suspicious circumstances, which in my considered
view, Learned Trial Court/First Appellate Court wrongly
interpreted at the time of delivering the judgment.
24. Regarding possession, both the parties have
adduced witnesses in support of their case. It is on record
that the present appellant was at Guwahati for a
considerable period of time for the purpose of his
employment. So, it is quite natural that he did not have any
overall control over the suit land and it may so happen that
the respondent-defendant in his absence utilized the same
for his personal purpose for the time being. But that
utilization/temporary possession cannot become the grounds
to be a lawful owner. The respondent-defendant although
took the plea that he was adversely possessing the suit land
and thus, he acquired right of adverse possession over the
suit land. But in this regard, the Learned Trial Court at the
time of delivering the judgment came to the conclusion that
the respondent-defendant has failed to establish his right of
adverse possession over the suit land and furthermore,
before the First Appellate Court also, there was no such
cross-appeal/objection from the side of respondent
challenging the observation of the Learned Trial Court. So,
the plea of adverse possession cannot be accepted as a valid
one. More so, after knowing the contents of the Will, it
appears that the present plaintiff-appellant applied for
mutation and as per TLR and LR Act, there are certain
procedures before allowing mutation and vide MR case
No.20120007 his prayer for mutation was allowed finding
him in possession and the suit land was rightly recorded in
the name of the present plaintiff-appellant. The respondent-
defendant did not challenge that Khatian standing in the
name of appellant before any other forum. Nor there was
any counter-claim by the respondent-defendant challenging
the creation of Khatian before the Learned Trial Court in
favour of the plaintiff-appellant and more so, to substantiate
the case the respondent-defendant save and except his
evidence did not adduce any other witnesses in support of
his defence.
25. Learned Counsel for the respondent although
drawn the attention of the Court that the witnesses of the
plaintiff and specifically PW-1 during their cross-examination
asserted that the defendant was possessing the suit land.
But from their evidence, it is not clear as to how the
respondent-defendant possessing the suit land. Because his
right of adverse possession had already been dismissed by
the Learned Trial Court. More so, mere possession over a
property for a long period of time does not grant the right of
adverse permission on its own. As already stated, the
appellant was out of State for a considerable period, so,
naturally in his absence respondent-defendant being the
brother can utilize the same for his personal purpose
temporarily in absence of the plaintiff. But that possession
cannot be treated as a valid possession in the eye of law.
More so, since the plaintiff-appellant has been able to prove
his valid right, title, interest over the suit land, so, the story
of possession by the respondent-defendant cannot be
accepted as lawful possession at this stage.
Furthermore, if the story of possession as alleged
by the respondent-defendant is allowed by any Court of law
in that case no lawful owner in the country having valid
right, title and interest on his land would be able to protect
his property and there would be multiple numbers of
litigations across the country in this regard. So, the story of
the defendant as alleged cannot be accepted.
26. Learned Counsel for the appellant, in course of
hearing of argument relied upon one citation in Shyamal
Majumder vs Manju Rani pal and Another dated
01.04.2022 reported in (2022) SCC Online Tri 311. In
para no.25 this High Court observed as under:
"25. From the body of the Will, it has
come to our notice that the Sub-
Registrar, Sadar has endorsed the
presentation of the Will by late Gita
Rani Majumder. It is clearly written that
"Presented for Registration at 12 A.M.
on the 6th Nov. day at the Sadar Sub-
Registry office by Smt. Gita Rani
Majumder". The testator Gita Rani
Majumder also put her signature
beneath the said endorsement. Again,
the Sub-Registrar endorsed at the last
page of the Will that the testator
admitted the execution of the Will
(Exbt.-„C‟) and under the stamp and
seal it is clearly written that "Execution
is admitted by Smt. Gita Rani Majumder
..." and, therefore, the Sub-Registrar
put his signature thereon dated
6/11/2010."
27. He also relied upon another citation of a co-
ordinate bench of this High Court in connection with case No.
RSA 17 of 2021 wherein in para No.8, this High Court further
observed as under:
"8. It is settled proposition of law that
while deciding the genuinity and
propriety of a Will, the Court is to look
upon its execution part and the
subsequent registration, if any. From
the evidences of PW3 and PW5, the two
attesting witnesses have categorically
deposed that Lt. Joshoda Bala
Chakraborty was fully conscious when
the Will was executed, though, her
hands were trembling due to arthritis
and for that reason, she put her thumb
impression on the Will. They have also
categorically deposed that on her
dictation, the Will was written by PW2,
the scribe. It was read over to her and
she understood the contents of the Will
and having satisfied with the contents
of the Will, she put her thumb
impression on the Will in front of them.
Thereafter, on her request, PW3 and
PW5 put their respective signatures as
attesting witnesses on the Will.
PW2, the scribe in clear terms
has deposed that Jashoda Bala
Chakraborty herself approached him
expressing her willingness to execute a
Will in favour of the plaintiff.
Accordingly, he had written the Will. He
further deposed that at the time of
execution of the Will she was free and
in sound disposing mind and further, Lt.
Joshoda Bala Chakraborty was in a
perfect position to understand the
contents of the Will. The contents being
written according to her wish, it was
read over to her and after being
satisfied, she put her thumb impression
on the Will as her hands were trembling
due to arthritis. At her request, two
neighbouring witnesses were along
present during the process of execution
who put their respective signatures on
the Will as attesting witnesses after the
thumb impression was put by Lt.
Jashoda following her request."
28. Here in the case, it appears that the deceased
Suresh Chandra Paul himself presented the Will before the
Sub-Registrar, Kailashahar for registration after due
execution and accordingly, it was registered in accordance
with law and as already discussed from the contents of the
Will, it is clear that the deceased, testator by the
Will(Exbihit-6), not only bequeathed the suit land in favour of
the present plaintiff-appellant of this case, rather in the Will
it was specifically mentioned by him that he also gave more
2 acres of land from his 'jote' in favour of the respondent-
defendant of the suit. So, this Court can safely arrive to a
finding that the 'Will' in question was proved in accordance
with law and the factors required to draw suspicious
circumstances as observed by Learned Trial Court are wholly
absent and the plaintiff-appellant has rightly and lawfully
proved due execution of the Will and from the contents of
the Will, it appears that the testator had expressed his last
desire on the body of the Will. So, there was no question to
form any suspicious circumstance on the purported Will as
alleged by the suit land.
29. Learned Counsel for the respondent-defendant in
course of hearing of argument relied upon one citation of the
Hon'ble Supreme Court in Rangammal v. Kuppuswami &
Anr. dated 13.05.2011 reported in AIR (2011) SC 2344
wherein in para no.19, 21, 22 and 24 observed as under:
"19. Application of Section 101 of the
Evidence Act, 1872 thus came up for
discussion in this matter and while
discussing the law on the burden of
proof in the context of dealing with the
allegation of sham and bogus
transaction, it was held that party
which makes allegation must prove it.
But the court was further pleased to
hold wherein the question before the
court was "whether the transaction in
question was a bona fide and genuine
one" so that the party/plaintiff relying
on the transaction had to first of all
prove its genuineness and only
thereafter would the defendant be
required to discharge the burden in
order to dislodge such proof and
establish that the transaction was sham
and fictitious. This ratio can aptly be
relied upon in this matter as in this
particular case, it is the
plaintiff/respondent No.1-Kuppuswami
who relied upon the alleged sale deed
dated 24.2.1951 and included the
subject-matter of the property which
formed part of the sale deed and
claimed partition. This sale deed was
denied by the defendant/appellant on
the ground that it was bogus and a
sham transaction which was executed
admittedly in 1951 when she was a
minor. Thus, it was the
plaintiff/respondent No.1 who should
have first of all discharged the burden
that the sale deed executed during the
minority of the appellant was genuine
and was fit to be relied upon. If the
courts below including the High Court
had felt satisfied on this aspect, only
then the burden could be shifted on the
defendant/appellant to dislodge the
case of the plaintiff that the sale deed
was not genuine. But when the plaintiff
merely pleaded in the plaint but failed
to lead any evidence - much less proof,
that the sale deed was genuine and was
executed in order to discharge the
burden of legal necessity in the interest
of minor, then the High Court clearly
misdirected itself by recording in the
impugned order that it is the
defendant/appellant herein who should
have challenged the genuineness of the
sale deed after attaining majority
within the period of limitation."
"21. It has been further held by the
Supreme Court in the case of State of J
& K v. Hindustan Forest Company, 2006
(12) SCC 198, wherein it was held that
the onus is on the plaintiff to positively
establish its case on the basis of
material available and it cannot rely on
the weakness or absence of defence to
discharge onus."
"22. It was still further held by this
Court in the matter of Corporation of
City of Bangalore v. Zulekha Bi, 2008
(11) SCC 306 (308): (AIR 2008 SC
(supp) 885:2008 AIR SCW 4959) that it
is for the plaintiff to prove his title to
the property. This ratio can clearly be
made applicable to the facts of this
case, for, it is the plaintiff who claimed
title to the property which was a
subject-matter of the alleged sale deed
of 24.2.1951 for which he had sought
partition against his brother and,
therefore, it was clearly the plaintiff
who should have first of all established
his case establishing title of the
property to the joint family out of which
he was claiming his share. When the
plaintiff himself failed to discharge the
burden to prove that the sale deed
which he executed in favour of his own
son and nephew by selling the property
of a minor of whom he claimed to be
legal guardian without permission of
the court, it was clearly fit to be set
aside by the High Court which the High
Court as also the courts below have
miserably failed to discharge. The onus
was clearly on the plaintiff to positively
establish his case on the basis of
material available and could not have
been allowed by the High Court to rely
on the weakness or absence of defence
of the defendant/appellant herein to
discharge such onus."
"24. It is further well-settled that a suit
has to be tried on the basis of the
pleadings of the contesting parties
which is filed in the suit before the trial
court in the form of plaint and written
statement and the nucleus of the case
of the plaintiff and the contesting case
of the defendant in the form of issues
emerges out of that. This basic
principle, seems to have been missed
not only by the trial court in this case
but consistently by the first appellate
court which has been compounded by
the High Court."
Referring the same, Learned Counsel drawn the
attention of the Court that it was the duty of the plaintiff-
appellant to disprove the allegation of sham and bogus
transaction and onus lies upon the plaintiff-appellant to
discharge the same. But here in the case, the plaintiff-
appellant has failed to discharge his onus to prove the suit
and prayed for upholding the judgment passed by Learned
First Appellate Court.
30. I have already discussed in detail that the Exhibit-
6 was duly proved and executed by the executant, Suresh
Paul, in favour of the plaintiff-appellant which was a
registered Will and on the basis of the Will, the suit land was
recorded in the name of the plaintiff-appellant. The
respondent-defendant possessed the suit land in absence of
the plaintiff-appellant, but ultimately tried to establish his
right of adverse possession over the same which the Learned
Trial Court already been decided against him and the
Learned First Appellate Court erroneously came to a wrong
finding that the disputed Will (Exhibit-6) was a sham
transaction and uphold the judgment of the Learned Trial
Court.
31. So, after hearing both the sides and going
through the records of the Learned Court below as well as
after considering the citations as referred by Learned
Counsel of the parties, it appears that the present plaintiff-
appellant became the absolute owner of the suit land by dint
of the registered Will and got possession of the same and
since the plaintiff-appellant has been able to prove his title
over the suit land. So, he is entitled to remain in possession
of the suit land and the defendants without having any valid
right, title and interest over the suit land is liable to be
evicted from the suit land by due process of law. It is also
the settled position of law that the decree of Civil Court shall
always prevail over the order of Executive Magistrate passed
under Section 145 of Cr.P.C. Thus, the substantial question
of law framed by this Court is accordingly answered in
affirmative in favour of the appellant of this case.
32. In the result, the appeal filed by the plaintiff-
appellant is hereby allowed on contest with costs. The
judgment and decree passed by the Learned First Appellate
Court upholding the judgment of Learned Civil Judge, Senior
Division, Kailashahar, North Tripura is hereby set aside. The
right, title and interest of the plaintiff-appellant over the suit
land is hereby declared. The respondent-defendant is asked
to vacate the suit land in favour of the plaintiff-appellant,
failing which the plaintiff-appellant shall recover the same by
due process of law removing all obstructions there from.
With this observation the appeal stands disposed of. Pending
applications, if any, also stands disposed of.
Prepare decree accordingly and send down the
LCRs.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.02.08 18:05:01
+05'30'
Purnita
