Tripura High Court
Smti. Puspa Rani Das(Roy) vs Smti Maya Rani Roy (Das) on 4 July, 2024
HIGH COURT OF TRIPURA
AGARTALA
RFA 17 of 2023
1. Smti. Puspa Rani Das(Roy),
wife of late Ram Dulal Roy,
resident of Old Agartala,
P.S. Bodhjungnagar, District- West Tripura
2. Sri Partha Sarathi Roy,
son of late Ram Dulal Roy,
presently residing at Ashraya Vishi Building,
Varthur, Bangaluru
----Appellant(s)
Versus
1. Smti Maya Rani Roy (Das),
wife of late Jahar Lal Das,
daughter of late Beni Madhab Roy,
resident of Old Agartala,
P.S. Bodhjungnagar, District-West Tripura
2. Smti. Ful Malati Roy (Majumder),
wife of Sri Nityananda Majumder,
daughter of Late Beni Madhab Roy,
resident of Krishnadaspur, P.S. Gobardhanpur,
South District- South 24 Pargana, West Bengal-743371
----Respondent(s)
3. Sri Pritam Roy,
son of late Ram Dulal Roy,
resident of Old Agartala,
P.S. Bodhjungnagar,
District-West Tripura
----Proforma-Respondent(s)
For Appellant(s) : Mr. S. Pandit, Adv.
Mr. S. Das, Adv.
For Respondent(s) : Mr. Samarjit Bhattacharjee, Adv.
Date of Hearing : 28.06.2024
Date of delivery of
Judgment & Order : 04.07.2024
Whether fit for reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This is an appeal under Section 96 read with Order 41 of CPC
by the appellants against the judgment and preliminary decree dated
05.04.2022 delivered by Learned Civil Judge, Senior Division, Court
No.1, West Tripura, Agartala in connection with Case No.T.S.(P)130 of
2017.
2. Heard Mr. S. Pandit, Learned counsel appearing for the
appellants as well as Mr. Samarjit Bhattacharjee, Learned counsel
appearing for the respondent-plaintiffs. None appears on behalf of the
proforma-respondent No.3.
3. Before proceeding with the merit of this appeal, let us
discuss about the subject matter of the suit filed before the Learned Trial
Court. The respondent-plaintiffs filed a partition suit before the Court of
Learned Civil Judge, Senior Division, Court No.1, West Tripura, Agartala
seeking partition of the suit land as mentioned in schedule of the plaint.
According to the respondent-plaintiffs, one Benimadhab Roy (since dead)
was the father of the respondent-plaintiffs and one Ram Dulal Roy, the
predecessor of the present appellants. Said Benimadhab Roy expired in
the year 1986 leaving behind two daughters i.e. the respondent-plaintiffs
herein and his son Ram Dulal Roy (since dead by this time) as his only
legal heirs to succeed to his property as per law for inheritance and
succession. After his death, his son and daughters inherited the said
property in equal share. The respondent-plaintiffs in their plaint further
alleged that on 08.01.2016 they requested Ram Dulal Roy, the
predecessor of the present appellants for amicable partition of the suit
land which was recorded in the name of said Ram Dulal Roy but in vain.
After that, the respondent-plaintiffs filed petition for correction of ROR in
respect of the suit land recorded in khatian Nos.1303/1 and 1303/2. It
was further alleged that tehsildar of Uttar Champamura went for field
enquiry but on 26.10.2017 said Ram Dulal Roy (since dead) threatened
the plaintiffs. Thereafter, they filed the partition suit as alleged. On
receipt of summons, said Ram Dulal Roy appeared and contested the
same by filing written statement. In the written statement, said Ram
Dulal Roy admitted that the suit land was belonging to his father and
also admitted that the respondent-plaintiffs are also the legal heirs of
said late Benimadhab Roy but Ram Dulal Roy questioned the
maintainability of the suit and further submitted that record of right was
prepared in his name on the basis of possession. So, no decree could be
passed against him and finally prayed for dismissal of the suit with costs.
4. Upon the pleadings of the parties, following issues were
framed by the Learned Trial Court :
"I) Whether the suit is maintainable in its present form and
nature ?
II) Whether there is any cause of action ?
III) Whether the suit is insufficiently stamped ?
IV) Whether the suit land is liable to be partitioned amongst
the plaintiff and the defendants ?
V) Whether the plaintiff is entitled to a decree of cancellation
of Khatian No-1303/1 and 1303/2 ?
VI) Whether the plaintiffs are entitled for a decree as prayed
for ?
VII) Whether the plaintiffs are entitled for any other
relief/reliefs ?"
5. Thereafter, in the meantime the case was posted for
evidence. By that time, said Ram Dulal Roy expired and his legal heirs
were substituted i.e. the present appellants and the proforma-
respondent and inspite of receiving summons they did not turn up before
the Court and finally, on the basis of evidence on record of the
respondent-plaintiffs and on perusal of the documentary evidence on
record, the Learned Trial Court delivered the judgment. For the sake of
convenience, I would like to mention herein below the name of witnesses
of the respondent-plaintiffs and the exhibited documents :
"1) Original Khatian No.645 of Mouja Uttar Champamura
[Exbt.1],
2) Computerised Khatian No.1303/2 of Mouja Uttar
Champamura [Exbt.2],
3) Original Khatian No.1303/1 of Mouja Uttar Champamura
[Exbt.3],
4) Certified copy of mutation report [Exbt.3/1],
5) Certified copy of Sale deed No.I-5193, 6 Sheets [Exbt.4],
6) Mutation report in connection with MR 425 [Exbt.5],
7) Certified copy of Sale deed No.I-1253 [Exbt.6],
8) Certified copy of Sale deed No.I-1254 [Exbt.7],
9) Certified copy of Gift deed No.I-6337 [Exbt.8],
10) Original receipt of copy of petition filed before the DM and
Collector dated 07.07.2017 in connection with MR 454 of 2017
[Exbt.9],
11) Caste certificate of Fulmalati Roy [Exbt.10],
12) Admit Card of Fulmalati Roy [Exbt.11],
13) Citizenship Card [Exbt.12]"
The operative portion of the judgment/order dated
05.04.2022 runs as follows:
"As a result thereof, the suit of the plaintiffs is decreed with
the observation that each of the plaintiffs are entitled to one
third share of the suit land and the defendants are together
entitled to one third share of the suit land.
The plaintiffs are directed to submit deficit court
fees.
Prepare preliminary decree accordingly and put up
before me for signature within 14(fourteen) days from today
after submission of deficit court fees by the plaintiffs.
The parties are at liberty to amicably partition the
suit land as per the judgment passed today, failing which the
plaintiff is to take steps accordingly.
Thus, this case is disposed on contest.
Pronounced in the open court."
6. In course of hearing of arguments, Mr. S. Pandit, Learned
counsel appearing for the appellants submitted that the Learned Trial
Court below passed an erroneous judgment as because before the
Learned Trial Court, the present appellants could not contest the suit as
because the proforma-respondent received summons on their behalf but
he did not intimate anything to the present appellants for which they
could not adduce any oral/documentary evidence in support of their
defence but only during the period of survey commission, they could
know that the suit was filed against their predecessor. Furthermore, the
Learned Trial Court below ignoring the documentary evidence on record
without affording any opportunity to the present appellants passed an
erroneous judgment and furthermore, the respondent-plaintiffs never
possessed the suit land at any point of time. So, Learned counsel for the
appellants finally prayed for allowing this appeal by setting aside the
judgment with a further request to direct the Learned Trial Court to allow
the respondent-plaintiffs to submit additional written statement and to
allow them to adduce oral/documentary evidence in support of their
defence.
7. On the other hand, Mr. Samarjit Bhattacharjee, Learned
counsel appearing for the respondent-plaintiffs first of all submitted that
the Learned Trial Court below after considering the oral/documentary
evidence on record passed a reasoned judgment protecting the interest
of both the rival parties of the suit. Learned counsel for the respondent-
plaintiffs further submitted that from the record of the Learned Trial
Court below it would reveal that the present appellants inspite of
receiving summons and inspite of allowing opportunity did not appear
before the Court nor adduce any oral/documentary evidence in support
of their case but at the time of survey commission they appeared before
the Court and raised objection.
8. Learned counsel for the respondent-plaintiffs further
submitted that from the judgment of the Learned Trial Court below it is
crystal clear that said Ram Dulal Roy has/had no valid document in
respect of his absolute title over the suit land save and except the
khatians which were also relied upon by the respondent-plaintiffs and
marked as Exbts.2 & 3 which does not confer any title.
9. Finally, according to Learned counsel for the respondent-
plaintiffs by the judgment there is/was no chance of prejudice of the
present appellants. Now with a view to harass the respondent-plaintiffs
who are also old and aged and to burden them with litigation this appeal
has been filed by the present appellants without any basis. So, Learned
counsel for the respondent-plaintiffs prayed for dismissal of this appeal
with costs.
10. It was further submitted said Ram Dulal Roy, the
predecessor of the present appellants contested the suit by filing written
statement and after his death, no step was taken by them. Even, inspite
of receipt of summons from the Court, they did not bother to contest the
suit. Now, with a false plea of non receipt of summons and ignorance
about the fact of the case, this appeal has been filed by the appellants
for which Learned counsel for the respondent-plaintiffs urged before the
Court that there is no scope to interfere with the judgment of the
Learned Trial Court at this stage.
11. I have heard detailed arguments of both the sides and gone
through the record of the Learned Court below very carefully. After
hearing both the sides, it is crystal clear that the case of the present
appellants is based upon two khatians i.e. khatian Nos.1303/1 and
1303/2 which were marked as Exbts.2 & 3 at the instance of
respondent-plaintiffs before the Learned Trial Court. It is an admitted
position that the suit land was originally belonged to one Benimadhab
Roy, there is no dispute on record in this respect. After his death, the
suit land dwelled upon the respondent-plaintiffs and said Ram Dulal
Roy(since dead) at present the legal heirs of said Benimadhab Roy. It is
an admitted position that presently, the suit land is lying vacant. Said
Ram Dulal Roy during his life time on receipt of summons from the Court
appeared and filed written statement. In the written statement, said
Ram Dulal Roy only took the plea that he possessed the suit land since
long back and the record of rights was prepared in his name but at the
time of hearing of this appeal, Learned counsel for the appellants
submitted that the present appellants and their predecessors have/had
acquired right of adverse possession over the suit land but in support of
exclusive title over the suit land of said Ram Dulal Roy, the present
appellants save and except Exbts.2 & 3 could not show any other
relevant documents to take presumption that said Ram Dulal Roy, was
the exclusive lawful title holder/owner of the suit property.
12. It is on record that after the death of said Ram Dulal Roy,
the appellants and the present proforma-respondent were substituted
but inspite of receipt of summons, they did not appear before the
Learned Trial Court nor adduced any oral/documentary evidence on
record. Even, after the death of said Ram Dulal Roy also, they did not
think it necessary to contest the suit. So, the story of non-receipt of
summons by the present appellants or their ignorance about the suit
cannot be accepted.
13. Since, at the time of hearing of argument of this case, a
scope was given to the appellants' side to show any relevant documents
in support of title over the suit land either by said Ram Dulal Roy or by
the present appellants and the proforma-respondent but they could not
produce any such documentary evidence on record before the Court.
Rather, Learned counsel stressed upon Exbts.2 & 3 as already stated
above.
14. Learned Court below at the time of determination of the suit
has/have framed in total seven numbers of issues and ultimately
decreed the suit in favour of the present respondent-plaintiffs. Further,
Learned Court below in para-11 of the judgment came to the conclusion
that on the basis of Exbts.2 & 3, no inference could be drawn that said
Ram Dulal Roy was the lawful owner of the suit land as the khatians
does not confer any title.
15. In course of hearing of arguments, Learned counsel for the
appellants drawn the attention of the Court referring one judgment of
the Hon'ble Apex Court. In Vidya Devi alias Vidyavati (dead by
L.R.‟s) versus Prem Prakash and Others reported in (1995) 4 SCC
496 wherein in paras-21 & 22 it has been observed as under :
"21. Normally, where the property is joint, co-sharers are the
representatives of each another. The co-sharer who might be
in possession of the joint property shall be deemed to be in
possession on behalf of all the co-sharers. As such, it would be
difficult to raise the plea of adverse possession by one co-
sharer against the other. But if the co-sharer or the joint
owner had been professing hostile title as against other co-
sharers openly and to the knowledge of others joint owners,
he can, provided the hostile title or possession has continued
uninterruptedly for the whole period prescribed for recovery
of possession, legitimately acquire title by adverse possession
and can plead such title in defence to the claim for partition.
22. "Adverse possession" means hostile possession, that is, a
possession which is expressly in denial of the title of the true
owner. (See:/ Gaya Parshad Dikshit Vs. Nirmal Chander and
another (AIR 1984 SC 930). The denial of title of the true
owner is a sign of adverse possession. In Ezaz Ali Vs. Special
Manager, Court of Wards (AIR 1935 PC 53), it was observed:
"The principle of law is firmly established that a
person, who bases his title on adverse possession, must show
by clear and unequivocal evidence that his possession was
hostile to the real owner and amounted to a denial of his title
to the property claimed."
Relying upon the same, Learned counsel for the appellants
submitted that the present appellants relies upon khatian Nos.1303/1
and 1303/2 standing in the name of said Ram Dulal Roy which were
marked at the instance of the respondent-plaintiffs. In addition to that,
by way of his long standing possession over the suit land said Ram Dulal
Roy also acquired right of adverse possession over the suit land. But the
Learned Court below did not consider the same and decreed the suit
ignoring the factual position. So, Learned counsel urged for setting aside
the judgment of the Learned Trial Court and to direct the Trial Court to
allow the present appellants to submit additional written statement and
also to adduce oral/documentary evidence on record.
16. On the other hand, Learned counsel for the respondent-
plaintiffs in addition to his submission relied upon the judgment of the
Hon'ble Supreme Court of India in P. Kishore Kumar versus Vittal K.
Patkar in Civil Appeal No.7210 of 2011 dated 20.11.2023 wherein
in paras-11 to 15 it has been observed as under :
"11. It is trite law that revenue records are not documents of
title.
12. This Court in Sawarni vs. Inder Kaur and Ors. : (1996) 6
SCC 223 held that mutation in revenue records neither creates
nor extinguishes title, nor does it have any presumptive value
on title. All it does is entitle the person in whose favour
mutation is done to pay the land revenue in question.
13. This was further affirmed in Balwant Singh & Ors vs.
Daulat Singh (Dead) by LRs and Ors.:(1997) 7 SCC 137
wherein this Court held that mere mutation of records would
not divest the owners of a land of their right, title and interest
in the land.
14. In Jitendra Singh vs. State of Madhya Pradesh and
Ors.:(2021) SCC Online SC 802, this Court after considering a
catena of judgments, reiterated the principle of law as
follows:
"6. ***mutation entry does not confer any right,
title or interest in favour of the person and the
mutation entry in the revenue record is only for the
fiscal purpose."
15. We may also profitably refer to the decision of this Court
in Sita Ram Bhau Patil vs. Ramchandra Nago Patil (Dead) by
LRs. and Ors.: (1977)2 SCC 49 wherein it was held that there
exists no universal principle that whatever will appear in the
record of rights will be presumed to be correct, when there
exists evidence to the contrary."
17. In reference to the present context, Learned counsel for the
respondent-plaintiffs further referred another decision of the Hon'ble
Apex Court in Union of India & Others versus Vasavi Cooperative
Housing Society Limited & ors. reported in (2014) 2 SCC 269
wherein the Apex Court in paras-20 & 21 observed as under :
"20. We notice that the trial court as well as the High Court
rather than examining that question in depth, as to whether
the plaintiffs have succeeded in establishing their title on the
scheduled suit land, went on to examine in depth the
weakness of the defendants‟ title. The defendants relied on
the entries in the GLR and their possession or repossession
over the suit land to non-suit the plaintiffs. The court went on
to examine the correctness and evidentiary value of the
entries in the GLR in the context of the history and scope of
the Cantonment Act, 1924, the Cantonment Land
Administration Rules, 1925 and tried to establish that no
reliance could be placed on the GLR. The question is not
whether the GLR could be accepted or not, the question is,
whether the entries in the GLR by themselves may not
constitute title, but the question is whether the entries made
in Ext. A-3 would confer title or not on the plaintiff.
21. This Court in several judgments has held that the revenue
records do not confer title. In Corpn. of the City of Bangalore
v. M. Papaiah:(1989) 3 SCC 612 this Court held that :
"5. ... It is firmly established that the revenue
records are not documents of title, and the question
of interpretation of a document not being a
document of title is not a question of law."
In Guru Amarjit Singh v. Rattan Chand:(1993) 4 SCC 349 this
Court has held that:
"2. ... that entries in the Jamabandi are not proof of
title."
In State of H.P. v. Keshav Ram:(1996) 11 SCC 257 this Court
held that:
"5. ... an entry in the revenue papers by no stretch
of imagination can form the basis for declaration of
title in favour of the plaintiffs.""
Relying upon the same, Learned counsel for the respondent-
plaintiffs submitted that on the basis of khatians there is no scope to
presume that said Ram Dulal Roy had valid title over the suit land as
because the khatian does not confer any title. Furthermore, Learned
counsel for the respondent-plaintiffs submitted that the Learned Court
below after considering all aspects rightly delivered the judgment
protecting the share of all the rival parties.
18. Learned counsel for the respondent-plaintiffs thereafter
referred another judgment of this High Court in Sarada Bala Roy and
Others versus Gouranga Chandra Roy and Others in RSA 10 of
2018 dated 25.04.2019 wherein in paras-35, 36, 44, 51, 67, 74, 80 &
95 it has been observed as under :
"35. It may be further clarified that Section 43(3) of the TLR &
LR Act, 1960 only speaks about the record of right as finally
published has a presumptive value unless the contrary is
proved.
36. While interpreting the nature and scope of Section 43(3)
of the TLR & LR Act, this Court (when it was under the Gauhati
High Court) in Parija Bibi Vs. Santi Ranjan Datta, reported in
1995 (II) GLT 174 (decided on 12.01.1995) had held that
"Section 43(3) of the Act envisages that entry in the record of
rights as finally published shall be presumed to be correct
until the contrary is proved."
44. In the light of the legal positions as discussed in the
preceeding paragraphs, I am also of the view that exhibit A
series, B series and C series are not the documents of title.
51. The concept of joint family is common both in Mitakshara
and Dayabhaga law. The difference is that in Mitakshara law
the essence of a co-parcener lies in unity of ownership but in
Dayabhaga School of law, the joint family exists in unity of
possession. It is the unity of possession that makes them co-
parceners. So long as there Page 18 of 36 is unity of
possession no co-parcener in or under the Dayabhaga law can
say that a particular share in the property belongs to him.
(emphasis supplied)
67. I can easily say that Lalmohan Roy styled himself as the
karta of the joint family at Agartala, India as Manmohan used
to reside in Bangladesh but according to me, it does not take
away the ownership right of Lt. Manmohan Roy over the suit
land.
74. The court put a question as to whether he has fabricated
the partition document in collaboration with the parties
against which the said witness has answered, "absolutely
not". The preparation of the said partition deed, i.e. exhibit-7
also gets support from the deposition of PW3 when the said
witness has stated categorically that "there was a
Bantannama under the guidance of Nishi Kanta Roy, Amin of
our village, there were separate shares of all."
80. On recapitulation of the legal position as delineated in the
preceeding paragraphs it can easily be said that in absence of
any document of title this Court may draw a presumption that
the suit land in question was ancestral property of the plaintiff
as well as the defendants.
95. According to me, the principle culled out in the above
decision will not help the appellants in any manner. The above
decision crystallizes the principle that when it is established
that the plaintiff has been able to establish the fact of a joint
family property having found the nucleus (Tripura Sundari
Kapali herein) from which the suit property in question has
been acquired, and when the defendant claims that it is a self-
acquired property, then, burden shifts on the defendant to
establish that the property was acquired without the aid of the
joint family property."
Referring the same, Learned counsel further submitted that
the citation as referred by the Learned counsel for the appellants rather
supports the case of the respondent-plaintiffs and submitted that since
the suit property was a joint property, so, if for arguments sake said
Ram Dulal Roy was in possession of the suit property also in that case
his apparent possession as co-sharer shall be deemed to be in
possession on behalf of all the co-sharers. So, on the basis of that
judgment, there is no scope to accord any relief in favour of the present
appellants and finally urged for dismissal of this appeal.
19. I have perused the aforesaid citations referred by the
Learned counsels. As already stated, the present appellants could not
show any satisfactory document of title regarding the exclusive
ownership of their predecessor over the entire suit land before the
Learned Trial Court and even to this Court also at the time of hearing of
argument they could not show any document of title, rather, the
documents proposed to be relied upon by them are already been marked
as exhibits by the respondent-plaintiffs (Exbts.2 & 3). On perusal of the
same, there is no scope to take any presumption of absolute ownership
over the suit land by their predecessor. So, the submission of Learned
counsel for the appellants that the predecessor of the present appellants
was the absolute owner of the suit land cannot be accepted as because
the entry in revenue records does not confer any title over the suit
property in view of the principle of law laid down by the Hon'ble Apex
Court. So, the citations as referred by Learned counsel for the
respondent-plaintiffs appears to be more significant and relevant for the
decision of this case.
20. The Hon'ble Apex Court in B.R. Patil versus Tulsa Y.
Sawkar and Others reported in 2022 SCC Online SC 240 wherein in
paras-26 & 27 observed as under :
26. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalita and
Others : (2004) 1 SCC 271 the court inter alia held as follows:
"31. In Vidya Devi v. Prem Prakash :(1995) 4 SCC
496 this Court upon referring to a large number of
decisions observed:
"27. ... It will be seen that in order that the
possession of co-owner may be adverse to others, it
is necessary that there should be ouster or
something equivalent to it. This was also the
observation of the Supreme Court in P. Lakshmi
Reddy case [P. Lakshmi Reddy v. L. Lakshmi Reddy,
AIR 1957 SC 314] which has since been followed
in Mohd. Zainulabudeen v. Sayed Ahmed
Mohideen:(1990) 1 SCC 345.
28. „Ouster‟ does not mean actual driving out of the
co-sharer from the property. It will, however, not be
complete unless it is coupled with all other
ingredients required to constitute adverse
possession. Broadly speaking, three elements are
necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of hostile
animus, (ii) long and uninterrupted possession of
the person pleading ouster, and (iii) exercise of
right of exclusive ownership openly and to the
knowledge of other co-owner. Thus, a co-owner, can
under law, claim title by adverse possession against
another co-owner who can, of course, file
appropriate suit including suit for joint possession
within time prescribed by law."
32. Yet again in Darshan Singh v. Gujjar Singh
[(2002) 2 SCC 62] it is stated:
"It is well settled that if a co-sharer is in
possession of the entire property, his
possession cannot be deemed to be adverse for
other co-sharers unless there has been an
ouster of other co-sharers."
It has further been observed that:
"9. In our view, the correct legal position is
that possession of a property belonging to
several co-sharers by one co-sharer shall be
deemed that he possesses the property on
behalf of the other co-sharers unless there has
been a clear ouster by denying the title of other
co-sharers and mutation in the revenue records
in the name of one co-sharer would not amount
to ouster unless there is a clear declaration
that title of the other co-sharers was denied."
27. The possession of a co-owner however long it may be,
hardly by itself, will constitute ouster. In the case of a co-
owner, it is presumed that he possesses the property on
behalf of the entire body of co-owners. Even non-participation
of rent and profits by itself need not amount to ouster. The
proof of the ingredients of adverse possession are
undoubtedly indispensable even in a plea of ouster. However,
there is the additional requirement in the case of ouster that
the elements of adverse possession must be shown to have
been made known to the co-owner. This is apparently for the
reason that the possession of a co-owner is treated as
possession of other co-owners. While it may be true that it
may not be necessary to actually drive out the co-owner from
the property as noticed in Mohd. Zainulabudeen (since
deceased) by lrs. v. Sayed Ahmed Mohideen and Others, mere
continuance in the possession of a co-owner does not suffice
to set up a plea of ouster. The possession of the co-owner will
also be referable to lawful title. The possession of the
appellant even of the ground floor of the building on the land
in question, was entirely in accord with his right as a co-
owner."
From the aforesaid principle of law laid down by the Hon'ble
Apex Court it appears to me that the present appellants in course of
hearing of arguments could not satisfy the Court that since it was a joint
family property, so, the plea of the appellants that their predecessor was
in possession of the entire suit land cannot be deemed to be adverse for
other co-sharers unless there has been ouster of other co-sharers and
there is no such evidence on record like that.
21. In course of hearing of arguments, Learned counsel for the
appellants further took the plea the present appellants and their
predecessor acquired right of adverse possession over the suit land but
in this regard, the appellants could not show any documentary evidence
on record either to the Lower Court or even before this Court also. So,
the plea taken by Learned Counsel for the appellants cannot be accepted
at this stage in absence of cogent evidence on record.
22. Thus, after hearing both the rival parties and also after going
through the aforesaid citations and after going through the record of the
Learned Court below it appears to me that the Learned Trial Court below
after elaborate discussions and considering all aspects rightly delivered
the judgment and there was no perversity on that.
23. In the result, the appeal filed by the present appellants
stands dismissed being devoid of merit but considering the facts and
circumstances of the case no order is passed as to costs.
The judgment and preliminary decree dated 05.04.2022
delivered by Learned Civil Judge, Senior Division, Court No.1, West
Tripura, Agartala in connection with Case No.T.S.(P)130 of 2017 is
hereby upheld and accordingly it is affirmed. From the record of the
Learned Trial Court, it appears that presently the case is pending for
hearing on the report of Survey Commissioner. So, the Learned Trial
Court below after proper hearing of both the parties and affording
opportunity shall consider the report of Survey Commissioner and if
required, a fresh Survey Commission be conducted for this purpose the
cost of which would be borne by the respective parties and thereafter
shall pass a final decree within a period of 4(four) months from the date
of receipt of copy of this judgment.
Draw the decree accordingly.
Send down the LCRs forthwith along with a copy of the
judgment.
Pending application/s, if any, also stands dismissed.
JUDGE
Date: 2024.07.09 11:37:44 +05'30'
