Tripura High Court
Sri Pradip Bhowmik @ Lalit Bhowmik vs Sri Pijush Sarkar on 25 January, 2024
HIGH COURT OF TRIPURA
AGARTALA
RSA No.35 of 2022
Sri Pradip Bhowmik @ Lalit Bhowmik,
Son of late Nabadwip Bhowmik,
Resident of Laxmanpara, Amtali,
P.S. Amtali, District: West Tripura
----Defendant-Appellant (s)
Versus
Sri Pijush Sarkar,
Son of Sri Umesh Chandra Sarkar,
Resident of Amtali Madhyapara,
P.S. Amtali, District: West Tripura
---- Plaintiff-Respondent (s)
For Appellant(s) : Mr. P. Chakraborty, Adv.
For Respondent(s) : Mr. A. Sengupta, Adv.
Date of Hearing : 18.01.2024
Date of delivery of
Judgment and Order : 25.01.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
The appellant Pradip Bhowmik @ Lalit Bhowmik has
filed this second appeal under Section 100 of the CPC
challenging the judgment dated 26.04.2022 and decree
dated 30.04.2022 passed by the Learned District Judge,
Agartala, West Tripura in Title Appeal No.7 of 2021
affirming the judgment dated 22.02.2021 and decree dated
25.02.2021 passed by Learned Civil Judge (Senior Division),
Court No.2, Agartala, West Tripura in Title Suit No.70 of
2017. Before concluding the appeal on merit let us revisit
the facts of the case before the Trial Court below.
02. The respondent as plaintiff filed a suit before the
court of Learned Civil Judge (Senior Division), Court No.2,
West Tripura, Agartala which was registered as TS.70 of
2017. It was the case of the respondent-plaintiff is that suit
land measuring 4 gandas (0.080 acres) as the part and
parcel of land measuring 0.60 acres purchased by the
respondent-plaintiff vide registered sale-deed bearing No.1-
4493 dated 02.07.2004 from one Krishna Ch. Sarkar, son of
late Palai Ch. Sarkar of Madhyapara, P.S. Amtali, West
Tripura. Said Krishna Chandra Sarka purchased the suit
land from his vendor namely Dhananjoy Chowdhury at a
consideration price of Rs.1,00,000/- (one lakh). After
purchase of the suit land the respondent-plaintiff applied for
mutation over the land and as such the competent authority
after necessary enquiry mutated his purchased land
measuring 0.60 acres and ROR was prepared in his name
Khatian No.1262 under Mouja Madhupur, CS Plot No.3066
(P) 3067, RS Plot No.3725,3726 bounded in the North by
the legal heirs of one Amulya Sarkar, Pradip Bhowmik
(possessor), in the South Nitai Sarkar and others, in the
East Santosh Sarkar, Pijush Sarkar and others and in the
West legal heirs of Atul Bhowmik and others. It was further
asserted by the respondent-plaintiff that the appellant-
defendant filed one case under Section 145 of Cr.P.C. before
the court of S.D.M. Bishalgarh which was numbered as NGR
7 (EX) 03 against the vendor of the respondent-plaintiff
including the respondent. In the said proceeding final order
was passed on 23.11.2009 whereby S.D.M. Bishalgarh
purportedly decided that the appellant-defendant was the
possessor of the suit land. Thereafter the respondent-
plaintiff filed a suit for declaration of title, confirmation of
possession and for perpetual injunction against the
appellant-defendant over the suit land before the court of
Civil Judge (Jr. Division), Bishalgarh which was numbered as
TS 08 of 2011. In the said suit on receipt of notice the
present appellant-defendant though appeared but did not
submit any written statement inspite of granting several
adjournments and finally Learned court of Civil Judge (Jr.
Division) passed judgment and decree on 05.09.2013
declaring that the respondent-plaintiff has had title over the
suit land confirmed the possession of the respondent-
plaintiff over the suit land and also restrained the appellant-
defendant from entering into the suit land. Thereafter on
07.05.2017, the appellant-defendant encroached the suit
land. The respondent-plaintiff requested him to vacate the
same but he did not pay any heed to his request and
thereafter the respondent-plaintiff filed the suit as stated
above before the Learned court of Civil Judge (Sr. Division),
Court No.2, Agartala.
03. The present appellant-defendant contested the
suit by filing written statement before the Learned court
below. It was asserted by the appellant-defendant that the
suit was not maintainable and there was no cause of action
for the suit, suit was barred by limitation and it was also
bad for non-joinder of necessary parties. It was further
asserted that the respondent-plaintiff after obtaining fraud
and foul play obtained decree in connection with case No.TS
08 of 2011. It was the further case of the appellant-
defendant that the suit land appertaining to RS Plot No.3726
under Mouja Madhupur originally belonged to Maharani
Kanchan Prava Devi under Kayemi Taluk No.169 and the
present appellant-defendant has got his other land adjacent
North-West corner to the suit land and as such the
appellant-defendant finding the suit land vacant on
20.09.1971 entered therein and since then he has been
possessing the same denying the right, title and interest of
the true owner in hostile assertion beyond the statutory
period of limitation. The appellant-defendant further
submitted that the predecessor vendor of the respondent-
plaintiff namely Krishna Chandra Sarkar and his persons on
21.02.1971 resisted the appellant-defendant and his
labourers in cultivating the suit land as well as in growing
vegetables and also threatened the appellant-defendant to
vacate the suit land. But the appellant-defendant did not
vacate the same rather constructed huts and residing
therein along with family members in hostile manner
denying the right, title and interest of the vendor
respondent-plaintiff. Subsequently the respondent-plaintiff
created the sale-deed in respect of the suit land in his
favour which attempted to take forceful possession of the
suit land and for that the appellant filed one case before the
court of S.D.M. Bishalgarh bearing No.NGR 7(Ex)/2003 and
subsequently after field verification S.D.M. Bishalgarh by an
order declared possession of the appellant-defendant over
the suit land. It was further submitted that the respondent-
plaintiff after playing fraud to the Learned court below
obtained the decree.
04. Upon the pleadings of the parties following issues
were framed by the Learned court below:
(i) Whether the suit is maintainable in it's present
form and nature?
(ii) Whether the plaintiff has cause of action for filing
the suit?
(iii) Whether the suit is barred by limitation?
(iv)Whether the plaintiff is entitled to get recovery of
possession of the suit land by evicting the defendant
therefrom after removing all obstruction created by the
defendant?
(v)Whether the plaintiff is entitled for perpetual
injunction not to disturb the possession over the suit
land caused by the defendant?
(vi)Whether the defendant got right over the suit land
by adverse possession denying the right, title and
interest and possession in the suit land of the plaintiff
and his vendor?
(vii)Whether the plaintiff is entitled to get the decree
as prayed for?
(viii)To what other relief/reliefs parties are entitled?
05. In support of his case before the Learned Trial
court the respondent-plaintiff adduced two witnesses and
relied upon some documentary evidences which are marked
as exhibits as under:
(A) Respondent-plaintiff's Exhibits:-
1. Exbt.1(a) to 1(c) - Sale Deed vide no.1-7493;
2. Exbt.2 - Certified Copy of Khatian No.1262;
3.Exbt.3 - Certified Copy of Old Khatian No.1262;
4.Exbt.4 - Certified Copy of Old Khatian No.1966;
5. Exbt.5 - (a) to 5(f) - Certified Copy of Judgment dated
05.09.2013 passed by the Court of Ld. Civil Judge (Jr.
Div.), Bishalgarh in connection with TS 08 of 2011;
6. Exbt. 6 (a) to 6 (c) - Original Corrected Deed Vide No.
1-8669 dated 27.09.2001
(B) Respondent-plaintiff's Witnesses:-
1. P.W.1 :- Sri Pijush Sarkar;
2. P.W.2 :- Sri Litan Sarkar
06. Before the Learned Trial Court the appellant-
defendant also adduced three witnesses and relied upon
some documents which were marked as exhibits as
mentioned below:
A. Appellant-defendant's Exhibits:-
1. Exbt.A (a) to A(g) :- Certified to be True Copy of
Judgment dated 23.11.2009 passed by SDM, Bishalgarh in
Case No.NGR 07 (EX) 03 exhibited subject to objection by
counsel for the plaintiff;
2. Exbt.-B:- Certified to be True Copy of Order dated
12.10.2006 passed by the Court of the Executive
Magistrate, Bishalgarh in Case No.NGR 7 (EX) 03;
3. Exbt.- C (a) to C (b):- Certified to be True Copy of Field
Inquiry Report dated 02.12.2006 in connection with Case
No.NGR 7 (EX)/ 03;
4. Exbt.D (a) to D(d):- Certified to be True Copy of
Registered Sale Deed Vide No.1-442 dated 12.02.2001.
(B) Respondent-plaintiff's Witnesses:-
1. Sri Anup Bhowmik @ Lalit Bhowmik;
2. Sri Shaymal Chandra Sarkar;
3. Smt. Gita Rani Bhowmik
07. Finally after considering the evidence on record
and hearing the parties Learned Trial Court by a judgment
and order dated 22.02.2021 decreed the suit in favour of
the respondent-plaintiff. The operative portion of order of
the Learned Trial Court reads as follows:-
"In the result, the suit of the plaintiff is decreed on
contest against the defendant.
It is declared that the plaintiff is entitled to get recovery
of possession of the suit land by evicting the defendant
and by removing all obstructions thereform.
The defendant is hereby directed to hand over khas
possession of the suit land to the plaintiff within 2(two)
months from the date of decree.
Permanent injunction is also granted restraining the
defendant from making any interference to the peaceful
possession of the said land by the Plaintiff, after the said
land is duly recovered by the plaintiff, and to abstain
from doing any act or omission prejudicial to the interest
of the plaintiff regarding the said land.
The suit is disposed of accordingly on contest.
Prepare a decree accordingly and place before me for my
signature within 15 days from today.
The record shall be consigned to the Record Room after
due compliance."
08. Challenging that judgment the present appellant-
defendant preferred an appeal before the court of the
Learned District Judge, West Tripura, Agartala which was
numbered as Title Appeal No.07 of 2021 and the Learned
First Appellate Court by judgment and order dated
26.04.2022 dismissed the appeal of the present appellant
and confirmed the judgment and decree of the Learned Trial
Court below. The operative portion of the judgment and
order dated 26.04.2022 is extracted here under:
"In the result, this appeal filed by the defendant-
appellant is devoid of merit and the same is dismissed.
The judgment and decree passed by the Ld. Trial Court in
T.S. 70 of 2017 dated 22.02.2021 & 25.02.2021,
respectively, is upheld and affirmed.
This Title Appeal stands disposed of on contest with cost.
Prepare the decree accordingly."
09. Challenging that judgment the present appellant-
defendant has preferred this second appeal as stated above.
Before the High Court at the time of admitting the appeal
following two substantial questions of law were framed by
the order dated 01.08.2022 which are as follows:
"i) Whether the judgment and decree of both the Courts
below in regard to non-consideration of a document
relating to possession of the defendant appellant are
perverse?
ii) Whether it is the duty of the 1st Appellate Court to
decide the appeal keeping in view the scope and power
conferred to it under Section 96 read with Order 41, Rule
31 of the Code of Civil Procedure and due to non-
compliance with the requirement of Order 41, Rule 31 the
Judgment and decree is unsustainable in law and is
perverse?"
10. At the time of hearing Learned counsel for the
appellant submitted that both the courts below have
committed serious error in passing the judgment as there
is/was no cause of action by the respondent-plaintiff to file
the suit before the Learned court below. The present
appellant was/is possessing the suit land since the year
1971 denying the right, title and interest of the respondent-
plaintiff and the Learned SDM, Bishalgarh in a proceeding
under Section 45 of Cr.P.C. declared possession in favour of
the appellant-defendant and thereafter the respondent-
plaintiff manufactured a date showing his cause of action on
07.05.2015 filed a false suit because the respondent-
plaintiff never possessed the suit land at any point of time.
So question of his dispossession from the suit land did never
arise and his possession has already been declared and
confirmed by Learned SDM Bishalgarh in a proceeding under
Section 145 of Cr.P.C. But the Learned First Appellate Court
did not consider said aspect and passed an erroneous
judgment affirming the judgment of Learned Court below.
Although the respondent-plaintiff filed a suit before the
court of Learned Civil Judge, Junior Division, Bishalgarh, but
practically he did not get any relief for want of possession
and since the respondent-plaintiff never possessed the suit
land at any point of time so the story of possession and
dispossession was misconceived and as such the
respondent-plaintiff was/is not entitled to get any benefit
relief and referred para-33 of the judgment of the Learned
Trial Court below wherein Learned Court below also
admitted the possession of the appellant over the suit land.
Similarly the First Appellate court also in para-21 of the
judgment admitted that the present appellant-defendant
was in possession of the suit land but finally dismissed the
appeal without taking into consideration the right of the
adverse possession of the appellant-defendant over the suit
land since long back and ultimately dismissed the appeal
upholding the judgment of the Learned court below which
according to Learned counsel for the appellant was totally
illegal, inoperative and not binding upon the present
appellant-defendant as because the appellant all along
was/is peaceful possession the suit land and urged for
setting aside the judgment of the Learned court below.
11. On the contrary, Learned counsel for the
respondent-plaintiff has vehemently opposed the
submission made by the Learned counsel for the appellant
and submitted that there is no merit in the appeal as
because the appellant could not make any case to be
decided in his favour resulting which both the Learned court
below and the First Appellate Court rightly and reasonably
delivered the judgment in favour of the respondent-plaintiff
of this case and there is no scope to interfere the judgment
passed by the Learned First Appellate court.
12. Learned counsel for the respondent has further
submitted that the respondent-plaintiff purchased the suit
land from one Krishna Ch. Sarkar by registered sale-deed
who also got possession of the same and said Krishna Ch.
Sarkar also purchased the same from one Dhananjoy
Chowdhury in lieu of consideration price and his purchased
land was initially recorded in the name of Dhananjoy
Chowdhury. Thereafter the total purchased land measuring
0.60 acres of land mutated in the name of said Krishna
Chandra Sarkar and after that the total purchased land was
recorded in the name of the respondent-plaintiff and in the
relevant column there was no such entry regarding
possession of the appellant-defendant over the suit land at
any point of time. So the story of his possession over the
suit land was a dire falsehood and furthermore before the
court of SDM Bishalgarh, it was asserted by the present
appellant-defendant that the suit land was his purchased
land. But later on, before the Civil court the present
appellant-defendant took the plea of adverse possession
which are contradictory to each other. Learned counsel also
drawn the attention of this court to draw presumption under
Section 43(4) of TLR and LR Act regarding record of rights
and finally submitted that both the courts below after
elaborate hearing and considering the evidence on record
delivered the judgment in favour of the respondent-plaintiff
and the present appellant-defendant before the Civil court
at Bishalgarh in respect of receiving notice although
appeared but did not contest the suit with a belief that there
is no chance of his success in that suit and ultimately that
suit proceeded ex-parte against the appellant-defendant
and challenging that suit the present appellant did not file
any appeal before the competent court. So according to
Learned counsel since the case of the respondent-plaintiff
was based on title and which was duly proved before the
Learned court below. So Learned counsel urged before the
court to upheld the judgment of the Learned First Appellate
court.
13. This court has heard detailed argument of
Learned counsel of both the side. It is on record both the
courts below gave concurrent finding declaring the suit in
favour of the respondent-plaintiff of this case.
14. Learned counsel for the appellant-defendant in
course of hearing confined his argument only on the point
that there was no cause of action to file the suit and the
possession of the appellant was confirmed by an order of
Learned SDM, Bishalgarh. But to substantiate his claim over
the suit land he could not adduce any convincing
documentary evidence on record. From the record of the
Learned court below it appears that the respondent-plaintiff
purchased the suit land from one Krishna Chandra Sarkar
who purchased the same from one Dhananjoy Chowdhury.
To substantiate title and possession over the suit land the
respondent-plaintiff proved and relied upon some
documentary evidences which were marked as exhibits
before the court below. I have gone through those exhibited
documents also. It appears that the suit land was originally
recorded in the name of Dhananjoy Chowdhury and during
the stage of attestation in the year 1986 suit land was
recorded in the name of Dhananjoy Chowdhury in Khatian
No.1166. In the said khatian in the respective column there
was no entry in the column No.24 regarding possession of
any person including the present appellant-defendant.
Similarly, the suit land was recorded in the name of Krishna
Chandra Sarkar inKhatian No.1262 vide M.R No.40/2001
and in the said khatian also in the respective column No.24
there is no entry regarding possession of any person
including the present appellant-defendant. After that the
suit land was recorded in the name of the respondent-
plaintiff and ROR was prepared in his name and in his
khatian also in the respective column there is no entry
regarding possession of any person including the present
appellant-defendant. If we believe the story of possession of
the suit land by the appellant-defendant from the year
1971, in that case his name definitely could reflect in the
column of possession of the respective khatians. There is
also no cogent evidence on record from the side of the
appellant-defendant that challenging those khatians he
sought any relief to any Revenue Forum for correction of
record and also for incorporation of his name in the
respective column of the khatian. So the story of possession
as asserted by the appellant-defendant appears to be dire
falsehood. More interestingly the present appellant-
defendant before the court of the SDM took the plea that
the suit land was originally belongs to one Pyari Mohan
Sarkar and from said Pyari Mohan Sarkar one Subal
Bhowmik purchased the same and after his death the
present appellant-defendant started possessing the same.
But surprisingly before the Civil court he took a different
plea of adverse possession.
15. Learned counsel for the appellant at the time of
hearing could not explain anything in this regard because
from the judgment dated 23.11.2009 delivered by Learned
SDM, Bishalgarh which is marked as Exbt.A(a) to A(g) it
appears that before the SDM the present appellant raised
that plea. But surprisingly before the Civil court he took the
plea of adverse possession. Similarly as already stated, the
present respondent-plaintiff filed a suit before the court of
Learned Civil Judge(Junior Division) claiming declaration of
title and confirmation of possession and perpetual injunction
and in that suit also the present appellant although
appeared but did not contest the same by filing written
statement nor adduced any oral/documentary evidence on
record and the suit was decreed on 05.09.2013 in favour of
the respondent-plaintiff of this appeal. The present
appellant did not prefer any appeal challenging the said
judgment. Learned Trial Court in delivering the judgment
regarding admissibility of the final order of Executive
Magistrate relied upon one judgment of the Hon'ble
Supreme Court of India in Bhinka and Others vs. Charan
Singh reported in AIR 1959 SC 960 wherein in para No.16
Hon'ble the Apex Court observed as under:
"This leads us to the consideration of the legal effect of
the order made by the Magistrate under s. 145 of the
Code of Criminal Procedure. Under s. 145(6) of the Code,
a Magistrate is authorized to issue an order declaring a
party to be entitled to possession of a land until evicted
therefrom in due course of law. The Magistrate does not
purport to decide a party's title or right to possession of
the land but expressly reserves that question to be
decided in due course of law. The foundation of his
jurisdiction is on apprehension of the breach of the
peace, and, with that object, he makes a temporary order
irrespective of the rights of the parties, which will have
to be agitated and disposed of in the manner provided by
law. The life of the said order is conterminous with the
passing of a decree by a Civil Court and the moment a
Civil Court makes an order of eviction, it displaces the
order of the Criminal Court. The Privy Council
in Dinomoni Chowdhrani v. Brojo Mohini
Chowdhrani (1901) 29 Ind App 24, 33, tersely states the
effect of orders under s. 145 of the Code of Criminal
Procedure thus:
"These orders are merely police orders made to
prevent breaches of the peace. They decide no
question of title...............
We, therefore, hold that a provisional order of a
Magistrate in regard to possession irrespective of the
rights of the parties cannot enable a person to resist the
suit under s. 180 of the Act."
I also agree with the citation of the Hon'ble Apex
court of India and it is true that once the Civil court passes
any judgment and decree in respect of any suit land the
order of the Executive Magistrate in a proceeding under
Section 145 would automatically go and the judgment of
Civil court would prevail over the order of the Magistrate
and this is also the settled position of law. In this regard
Learned counsel for the appellant could not submit anything
before the court at the time of hearing.
16. Learned court below also regarding adverse
possession relied upon few judgments of the Hon'ble
Supreme Court. In Karnataka Board of Wakf vs. Govt. of
India & Others reported in (2004) 10 SCC 779 Hon'ble
the Apex court in para-11 observed as under:
"11.In the eye of law, an owner would be deemed to be
in possession of a property so long as there is no
intrusion. Non-use of the property by the owner even for
a long time won't affect his title. But the position will be
altered when another person takes possession of the
property and asserts a right over it. Adverse possession
is a hostile possession by clearly asserting hostile title in
denial of the title of true owner. It is a well- settled
principle that a party claiming adverse possession must
prove that his possession is 'nec vi, nec clam, nec
precario', that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity
and in extent to show that their possession is adverse to
the true owner. It must start with a wrongful disposition
of the rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory period. (See : S
M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v.
Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State
of Karnataka (1997) 7 SCC 567). Physical fact of
exclusive possession and the animus possidendi to hold
as owner in exclusion to the actual owner are the most
important factors that are to be accounted in cases of this
nature. Plea of adverse possession is not a pure question
of law but a blended one of fact and law. Therefore, a
person who claims adverse possession should show (a)
on what date he came into possession, (b) what was the
nature of his possession, (c) whether the factum of
possession was known to the other party, (d) how long
his possession has continued, and (e) his possession was
open and undisturbed. A person pleading adverse
possession has no equities in his favour. Since he is
trying to defeat the rights of true owner, it is for him to
clearly plead and establish all facts necessary to establish
his adverse possession. (Dr. Mahesh Chand Sharma v. Raj
Kumari Sharma (1996) 8 SCC 128)."
17. In Civil Appeal No.7764 of 2014 dated
07.08.2019 Hon'ble the Supreme Court in Ravinder Kaur
Grewal & Ors. vs. Manjit Kaur & Ors. reported in (2019)
8 SCC 729 further observed that:
"16.In Padminibai v. Tangavva & Ors., AIR 1979 SC 1142,
a suit was filed by the plaintiff for recovery of possession
on the basis that her husband was in exclusive and open
possession of the suit lands adversely to the defendant
for a period exceeding 12 years and his possession was
never interrupted or disturbed. It was held that he
acquired ownership by prescription. The suit filed within
12 years of his death was within limitation. Thus, the
plaintiff was given the right to recover possession based
on adverse possession as Tatya has acquired ownership
by adverse possession. This Court has observed thus:
"1. Tatya died on February 2, 1955. The
respondents, Tangava and Sundra Bai are the co
widows of Tatya. They were coplaintiffs in the
original suit.
11. We have, therefore, no hesitation in holding in
agreement with the courts below that Tatya had
acquired title by remaining in exclusive and open
possession of the suit lands adversely to Padmini
Bai for a period far exceeding 12 years, and this
possession was never interrupted or disturbed. He
had thus acquired ownership by prescriptions.
(emphasis supplied)."
18. In Chatti Konati Rao and Others vs. Palle
Venkata Subba Rao reported in AIR 2011 SC 1480,
Hon'ble the Apex Court in para-12 further observed as
under:
"12. We have bestowed our thoughtful
consideration to the submission advanced and we
do not find any substance in the submission of Mr.
Bhattacharya. What is adverse possession, on
whom the burden of proof lie, the approach of the
court towards such plea etc. have been the subject
matter of decision in a large number of cases. In T.
Anjanappa v. Somalingappa (2006) 7 SCC 570, it
has been held that mere possession however long
does not necessarily mean that it is adverse to the
true owner and the classical requirement of
acquisition of title by adverse possession is that
such possessions are in denial of the true owner's
title. Relevant passage of the aforesaid judgment
reads as follows:
"20. It is well-recognised proposition in law
that mere possession however long does not
necessarily mean that it is adverse to the
true owner. Adverse possession really
means the hostile possession which is
expressly or impliedly in denial of title of the
true owner and in order to constitute
adverse possession the possession proved
must be adequate in continuity, in publicity
and in extent so as to show that it is adverse
to the true owner. The classical
requirements of acquisition of title by
adverse possession are that such possession
in denial of the true owner's title must be
peaceful, open and continuous. The
possession must be open and hostile enough
to be capable of being known by the parties
interested in the property, though it is not
necessary that there should be evidence of
the adverse possessor actually informing the
real owner of the former's hostile action."
19. From the aforesaid citation it appears that
adverse possession means the hostile possession which is
expressly or impliedly in denial of title of true owner. In
order to substantiate adverse possession the possession
proved must be adequate in continuity, publicity and in
extent so as to show that it is adverse to the true owner.
Here, the present appellant before the court of the
Executive Magistrate took the plea that his predecessor
purchased the suit land. But before the Civil Court he took
the plea of adverse possession. In this regard Learned
counsel for the appellant could not give any proper
explanation at the time of hearing. It was the further case
of the appellant that he entered into the possession of the
suit land in the year 1971. But in this regard he could not
prove any documentary evidence. More interestingly over
the suit land the respondent-plaintiff adduce three exhibited
documentary evidence Exbt.1(a) to 1(c)- Sale Deed No.1-
7493, Exbt.2 Certified copy of Khatian No.1262, Exbt.3
Certified copy of old Khatian No.1262, Exbt.4 Certified copy
of old Khatian No.1966. From those documents it appears
that the suit land was initially recorded in the name of one
Dhananjoy Chowdhury. Thereafter on purchase the same
was recorded in the name of Krishna Chandra Sarkar and
after that on purchase the same was recorded in the name
of present plaintiff in the case and as already stated in the
said khatian in the respective column of possession there
was no entry regarding possession of the appellant-
defendant over the suit land. The respondent-plaintiff
purchased the suit land on 02.07.2004 by a registered title
deed [Exbt.1a- Exbt.1c] and thereafter the same was
mutated in his name and the Revenue Authority finding him
in possession recorded the suit land in his name in Khatian
No.1262. In this regard I would like to refer herein below
the provisions of Section 43 sub-section 3 of TLR & LR Act,
1960 which reads as under:
"(3) Every entry in the record of rights as finally
published shall, until the contrary is proved, be presumed
to be correct."
The appellant-defendant never did take any
steps to challenge those khatians also before any other
authority.
20. So after hearing elaborate arguments of the
Learned counsel of both the sides and after going through
the record of the Learned court below it appears that the
appellant-defendant has failed to satisfy the court regarding
his claim of adverse possession over the suit land at any
point of time rather the appellant in two forums took
different pleas. Before the SDM he took the plea that the
suit land was his purchased land which he got by way of
inheritance and before the Civil Court he took a different
plea of adverse possession, not only that regarding his
possession over the suit land he could not adduce any
documentary evidence on record to draw attention of this
court. Thus in my considered view, the Learned First
Appellate Court rightly and reasonably delivered the
judgment in favour of the respondent-plaintiff of the suit
and furthermore the judgment of Civil Court shall always
prevail over the finding of any criminal court and this is the
settled position of law. Thus the substantial questions of law
as formulated by the court are accordingly decided in
negative against the appellant of this case.
21. In the result, this appeal stands dismissed on
contest with costs. The judgment dated 26.04.2022 and
decree dated 30.04.2022 passed by the Learned District
Judge, Agartala, West Tripura in Title Appeal No.7 of 2021
affirming the judgment dated 22.02.2021 and decree dated
25.02.2021 passed by Learned Civil Judge (Senior Division),
Court No.2, Agartala, West Tripura in Title Suit No.70 of
2017 is hereby upheld and accordingly it is affirmed.
Prepare decree accordingly and send down the
LCRs along with a copy of this judgment.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.01.29 04:51:23
-08'00'
Moumita
