Tripura High Court
Smt. Haridasi Paul vs Smt. Uma Deb on 22 July, 2024
HIGH COURT OF TRIPURA
AGARTALA
RSA No.36 of 2023
Smt. Haridasi Paul,
W/O. Lt. Haribal Paul,
Resident of Teliamura Bazar,
P.S.- Teliamura, P.O.- Teliamura,
District-Khowai Tripura
.......The Petitioner Appellant
Versus
1. Smt. Uma Deb,
W/O. Lt. Ashok Sankar Deb,
2. Sri Ashis Deb,
S/O. Lt. Ashok Sankar Deb,
3. Sri Biswanath Deb,
S/O. Lt. Ashok Sankar Deb,
4. Smt. Purnima Deb,
D/O. Lt. Ashok Sankar Deb,
All are resident of Teliamura,
P.O. & P.S. Teliamura, Teliamura,
District-Khowai Tripura.
5. Smt. Shikha Deb (Sen),
D/O. Lt. Ashok Sankar Deb,
W/O. Sri. Lal Mohan Sen,
Resident of Dhaleswar, P.S.- East Agartala,
Agartala, Dist.- West Tripura.
6. Smt. Rekha Deb (Sarkar),
D/O. Lt. Ashok Sankar Deb,
W/O. Lt. Subinoy Ch. Sarkar,
Resident of Airport Road, Natunnagar,
P.S.-Airport, Agartala,
Dist.- West Tripura.
7. Smt. Rina Deb (Shil),
D/O. Lt. Ashok Sankar Deb,
W/O. Sri Gobinda Prasad Shil,
Resident of Bank of Amar Sagar, Udaipur,
P.O. & P.S. Radhakishorepur,
Dist.- Gomati Tripura.
......The Plaintiff D.H. O.P. Respondents
8. Sri Biswanath Paul,
S/O. Lt. Gouranga Ch. Paul,
9. Sri. Prabir Ch. Paul,
S/O. Lt. Gouranga Ch. Paul,
10. Sri. Pradip Ch. Paul,
S/O. Lt. Gouranga Ch. Paul,
11. Smt. Yamuna Paul,
W/O. Lt. Gouranga Ch. Paul,
12. Smt. Jayarani Paul,
D/O. Lt. Gouranga Ch. Paul,
13. Sri Nitai Ch. Paul,
S/O. Lt. Haribal Paul,
All are residents of Teliamura Bazar,
P.O. & P.S.- Teliamura,
District- Khowai Tripura
......The Defendant JD O.P. Respondents
For Appellant(s) : Mr. D. Deb, Adv,
Mr. D. Debnath, Adv.
For Respondent(s) : Mr. Sankar Deb, Sr. Adv,
Mr. R. Dasgupta, Adv.
Date of Hearing : 11.07.2024
Date of delivery of
Judgment and Order : 22.07.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This Second Appeal under Section 100 of CPC is
preferred challenging the judgment and order dated
27.07.2023 delivered by Learned Addl. District Judge,
Khowai, Tripura, in connection with case No.Civil Misc
(Appeal) 02 of arising out of Misc.45 of 2021 in Ex(T) 25 of
2018.
02. Heard Learned Counsel, Mr. D. Deb along with
Learned Counsel, Mr.D. Debnath for the appellant and also
heard Learned Senior Counsel, Mr. Sankar Deb assisted by
Learned Counsel, Mr. R. Dasgupta for the D.H. plaintiffs O.P.
respondents. None appeared on behalf of J.D. O.P.
respondents.
03. At the time of hearing, Learned Counsel for the
appellant drawn the attention of this Court that the present
appellant as petitioner filed a petition under Order XXI, Rule
97-101 of CPC before the Court of Learned Civil Judge,
Senior Division, Court No.2, Khowai in connection with case
No.Ex(T) 25 of 2018 which arose out of Suit No.T.S. No.49 of
2016 filed by the plaintiff D.H. O.P. respondents claiming
adverse possession over the suit land on the ground that the
appellant was not made party in the aforesaid suit filed by
the D.H. plaintiffs O.P. respondents. But the Learned Court
below did not consider the evidence on record of the
appellant-petitioner and ultimately, dismissed the said
petition.
Thereafter, the present appellant filed an appeal
before the Court of Learned District Judge under Order XXI,
Rule 103 of CPC, Khowai, which was later on transferred to
the Court of Learned Addl. District Judge, Khowai in
connection with case No.Civil Misc. (Appeal) No.02 of 2022.
Learned First Appellate Court heard both the sides and
finally, dismissed the appeal affirming the judgment and
order of Learned Civil Judge, Senior Division in connection
with Case No.Misc. (Appeal) No.45 of 2021 with modification
of exonerating the payment of cost of Rs.20,000/- on the
ground that the appeal is a statutory right of the petitioner-
appellant. After that, the present appellant has preferred this
appeal on the ground that both the Courts below did not
consider the long standing possession of the appellant,
herein, being an aged lady. Nor they appreciated the
evidence on record and urged for allowing this appeal setting
aside the judgment of the Learned First Appellate Court and
to pass an order for restoration of possession of the suit land
i.e. the decreetal land to the appellant.
04. On the other hand, Learned Senior Counsel, Mr.
Sankar Deb, for the plaintiff D.H. O.P. respondents first of all
drawn the attention of this Court that this appeal is not
maintainable on the ground that in view of the provision
provided under Section 100 of CPC, since no decree was
passed by the Learned First Appellate Court, so, this present
appeal is not maintainable as the same is barred by law.
Learned Senior Counsel, Mr. Sankar Deb thereafter
submitted that regarding the subject matter of the suit land,
so many litigations took place amongst the parties and
finally, the matter went up to the Hon'ble Supreme Court
and the Hon'ble Supreme Court allowed the case of the
plaintiff D.H. O.P. respondents. So, according to Learned
Senior Counsel, Mr. Sankar Deb, the petition filed by the
appellant before the Learned Trial Court was not at all
maintainable as she had got no basis to file any application
before the Executing Court and Learned Senior Counsel, Mr.
Sankar Deb also submitted that the application filed by the
appellant before the Learned Trial Court was nothing but to
delay the process of execution of decree granted in favour of
the plaintiff D.H. O.P. respondents.
Learned Senior Counsel, Mr. Sankar Deb, further
submitted that one Gouranga Chandra Paul i.e. the son of
the present appellant and his brother, Nitai Paul initially filed
a suit before the Court of the then Learned Assistant District
Judge, West Tripura, Agartala in connection with T.S. No.73
of 1994 for declaration and for consequential relief claiming
their possession over the suit land since 1968 and on the
basis of an agreement to purchase. They further asserted
that they have acquired right of adverse possession over the
suit land by their long possession. But the said suit was
dismissed by a judgment on 29.04.2002.
Learned Senior Counsel further submitted that in
the said suit, the Learned Court below framed an issue No.3
on the assertions of agreement to purchase of the suit land
from the predecessor of the present respondents and
thereafter, the suit was dismissed. Challenging that
judgment and decree, said Gouranga Chandra Paul and his
brother, Nitai Chandra Paul further preferred an appeal which
was numbered as Title Appeal No.24 of 2002 and the case
was heard by the then Learned Additional District Judge,
Court No.2, West Tripura, Agartala and the Learned Court
after hearing both the sides, dismissed the appeal by
judgment dated 18.08.2006.
Learned Senior Counsel further drawn the
attention of this Court that during the pendency of that
appeal, Sri. Gouranga Chandra Paul was expired, so, his
legal heirs were substituted. But that time no petition was
submitted by the present appellant claiming to be the legal
heir of said Gouranga Chandra Paul before the Learned First
Appellate Court. Thereafter, said legal heirs preferred Second
Appeal before the High Court which was numbered as RSA
36 of 2006 and this High Court by judgment dated
20.06.2014 was pleased to allow the appeal partly with
certain observations that as the plaintiffs of the original suit
were in possession of the suit land, so, they could not be
evicted by due process of law. Thereafter, the plaintiff D.H.
O.P. respondents filed one suit before the Court of Learned
Civil Judge, Senior Division, Court No.2, West Tripura,
Agartala against the legal heirs of said Gouranga Chandra
Paul and Nital Chandra Paul for a decree of recovery of
possession and the Learned Civil Judge, Senior Division,
West Tripura, Agartala in connection with case No.T.S. No.49
of 2016 dated 03.04.2018 decreed the suit in favour of the
present D.H. O.P. respondents.
According to Learned Senior Counsel, in the
aforesaid cases, nowhere the name of the present appellant
was shown as the legal heir of Sri. Gouranga Chandra Paul.
After that, challenging that judgment and decree, the
defendants of the said suit as appellant has preferred an
appeal before the Court of Learned District Judge, West
Tripura, Agartala which was numbered as T.A. No.15 of 2018
and the then Learned District Judge, by judgment dated
29.04.2019 further dismissed the appeal in favour of the
original plaintiffs of case No.T.S. No.49 of 2016 and
accordingly, decree was drawn up.
Thereafter, challenging that judgment of the then
Learned District judge, West Tripura, Agartala, the appellant-
defendants of that suit again preferred Second Appeal before
the High Court which was numbered as RSA 24 of 2019 and
this High Court by order dated 14.05.2019 also dismissed
the appeal as no substantial question of law was made out.
After that, the said appellant-defendants further
approached before the Hon'ble Supreme Court challenging
the said judgments of the High Court and the Hon'ble
Supreme Court by order dated 03.09.2021 in Special Leave
to Appeal No.20169 of 2019 dismissed the SLP.
Learned Senior Counsel, Mr. S. Deb again
submitted that before the High Court and also before the
Hon'ble Supreme Court, nowhere, the appellants being the
legal heirs of said Gouranga Chandra Paul never shown the
name of the present appellant as the legal heir of said
Gouranga Chandra Paul. Thus, they have suppressed the
name of the present appellant as one of the legal heir of said
Gouranga Chandra Paul.
Learned Senior Counsel also submitted that
thereafter, the D.H. plaintiff O.P. respondents filed execution
petition before the Court of Learned Civil Judge, Senior
Division for putting the decree into execution on 06.07.2018
which was numbered as Ex(T) 25 of 2018 arising out of T.S.
49 of 2016. In the said execution proceeding, the present
appellant being a stranger/third party filed one objection
petition on 12.11.2021 under Order XXI, Rule 97-101 of CPC
and on the basis of that a separate misc. case was registered
by Learned Trial Court and after hearing and taking evidence
on record, Learned Trial Court/Executing Court dismissed the
petition which was numbered as Civil Misc. No.45 of 2021 by
order dated 29.09.2022 and after that the present appellant
again preferred an appeal under Order XXI, Rule 103 of CPC
challenging the judgment and order dated 29.09.2022 before
the Court of Learned District Judge which was numbered as
Civil Misc. (Appeal) No.02 of 2022 and thereafter, after
hearing, Learned Additional District Judge, Khowai by order
dated 27.07.2023 passed in Civil Misc. (Appeal) No.02/2022
dismissed the appeal upholding the order of Learned Trial
Court/Executing Court.
Thereafter, the present appellant again preferred
another appeal under Section 104 read with Order XXI, Rule
103 of CPC against the said order of Learned First Appellate
Court before this Court which was numbered as SAO 01 of
2023 and this High Court after hearing both the sides also
dismissed the same and in para No.19, this High Court came
to the observation that the present appellant has failed to
convince the Court by producing any documentary evidence
to say that the appellant was/is in adverse possession having
right over the property. After that, this Second Appeal under
Section 100 of CPC is again preferred by the appellant.
Referring the entire episode, Learned Senior
Counsel drawn the attention of this Court that the order
impugned was not a decree passed in an appeal for which
this Second Appeal under Section 100 of CPC is not
maintainable. Moreover, there were no substantial questions
of law to formulate in this appeal, so, Learned Senior
Counsel prayed for dismissal of this appeal at the stage of
admission.
05. More so, in course of hearing of argument,
Learned Senior Counsel for the appellant further drawn the
attention of the Court referring Exhibit P/1, exhibited in
connection with case No.Misc.No.45 of 2021. From the said
exhibited document, it appears that the present appellant is
shown to be a legal heir of said deceased, Gouranga Chandra
Paul but surprisingly, the other legal heirs of Gouranga
Chandra Paul, during these few years, at the time of pressing
for litigations from the lower Court to Hon'ble the Supreme
Court, nowhere they have projected the name of the present
appellant as one of the legal heir of said deceased, Gouranga
Chandra Paul. There is also no evidence on record that the
present appellant is/was separated from the other legal heirs
of said Gouranga Chandra Paul.
06. Thus, according to Learned Senior Counsel, it is
clear that the legal heirs of Gouranga Chandra Paul
intentionally and purposefully suppressed the name of the
present appellant as their co-sharer over the suit land left by
the deceased, Gouranga Chandra Paul. The decree passed
against the other legal heirs of Gouranga Chandra Paul and
Nital Chandra Paul is also equally binding upon the present
appellant. Now from the record of the Execution Court,
passed in Misc. No.45 of 2021, it appears that the present
appellant could not produce any cogent evidence on record
to substantiate that the appellant has/had acquired right of
adverse possession over the suit land. Although she filed the
application as a stranger/third party, but the story of the
appellant that she was a stranger/third party cannot be
accepted, since it is on record that she was one of the legal
heirs of Gouranga Chandra Paul and the decree passed
against the other defendants J.Ds. are also equally binding
upon her.
Further, as referred by Learned Senior Counsel for
the D.H. O.P. respondents, at the time of hearing of
argument regarding earlier pendency of different cases,
Learned Counsel for the appellant in course of hearing of
argument did not dispute to that fact.
07. Learned Senior Counsel also submitted that
although the appellant relied upon Exhibit-P/2 i.e. the
Khatian No.60 under Mouza-Teliamura relied upon by the
appellant before the Executing Court but wherein in column
No.16, the name of Gouranga Paul had been shown as
forceful possessor but during the revisional survey and
settlement operation, the said record was published on
15.10.1990, wherein the said wrongful entry in the name of
Gouranga Chandra Paul was deleted from the Khatian as he
was not in lawful possession of the suit land at any point of
time. In this regard, the appellant could not give any
explanation.
08. Finally, Learned Senior Counsel submitted that
since there is no scope to prefer any appeal under Section
100 of CPC as the order passed by the Learned First
Appellate Court was not a decree and since the appeal under
Section 104 read with Order XXI, Rule 103 of CPC filed by
the appellant before the High Court which was numbered as
SAO 01 of 2023 was dismissed with detailed observations.
So, Learned Senior Counsel urged for dismissal of this appeal
with costs.
09. I have heard detailed arguments of both the sides
and gone through the records of the Learned Court below. As
already stated by Learned Counsel for the respondent DHs
that initially Gouranga Chandra Paul, being the son of the
present appellant and his brother Nitai Chandra Paul filed
one suit which was numbered as T.S. No.73 of 1994 before
the Court of Learned Assistant District Judge, West Tripura,
Agartala for a decree of declaration and for consequential
relief. The said suit was dismissed by judgment and order
dated 29.04.2002. In the said suit, as alleged by the Learned
Senior Counsel, one specific issue was framed which is as
follows:
"3. Whether Defendant No.1 agreed to sell
the suit land to the plaintiff and accepted
Rs.19,000/- being consideration but
refused to execute the sale deed
subsequently and whether sale deed to the
Defendant No.2 collusive?"
And Learned Court below after conclusion of trial
gave the following judgment/order dated 29.04.2002 in
connection with case No. T.S. No.73 of 1994:
"The suit is dismissed on contest without
cost. The Plaintiffs are not entitled to get
declaration that they have acquired the title
over the suit land by way of adverse
possession and permanent injunction and
also for declaration that the deed executed
by the Defendant No.2 and also reconvence
deed by the Defendant No.2 in favour of the
Defendant No.1, null, and void as prayed
for. The parties are directed to bear their
respective cost of the suit considering the
circumstances. In other words, the
Plaintiffs are not entitled to any relief in
this suit and the parties shall bear their
respective cost of the suit."
10. Challenging that judgment, said Gouranga
Chandra Paul (since dead) and his brother preferred an
appeal which was numbered as T.A. No.24 of 2002 and
during the pendency of that appeal on his death, his
following legal heirs were substituted, namely:
1. Smt. Jamuna Rani Paul, wife of Sri
Gouranga Chandra Paul.
2. Sri Pradip Paul, son of Sri Gouranga
Chandra Paul.
3. Sri Prabir Paul, son of Sri Gouranga
Chandra Paul.
4. Sri Biswanath Paul, son of Sri Gouranga
Chandra Paul.
5. Smt. Jayarani Paul, daughter of Sri
Gouranga Chandra Paul.
11. But surprisingly, the appellant relied upon Exhibit-
P/1 as already stated, wherein the name of the present
appellant is shown as the legal heir of Gouranga Chandra
Paul, but in the substitution application her name was
suppressed by the legal heirs, the reason best known to
them. However, Learned Additional District Judge, Court
No.2, West Tripura, Agartala in connection with Title Appeal
No.24 of 2002 dated 18.08.2006 dismissed the appeal. The
operative portion of the judgment and order of the Learned
First Appellate Court runs as follows:
"17. Hence, ordered that the appeal is dis-
allowed and dismissed on contest but
without cost.
Send down the LCR along with a copy of
this judgment."
12. Challenging that judgment, the legal heirs of
Gouranga Chandra Paul and said Nitai Chandra Paul
preferred Second Appeal before this High Court, which was
numbered as RSA No.36 of 2006 and this High Court by
judgment dated 20.06.2014 partly allowed the appeal
preferred by them. The operative portion of the order runs as
follows:
"22.In the present case, the appellate Court
arrived at a definite finding that the
plaintiffs are in possession of the suit land
but the plaintiffs failed to prove their
adverse possession. Since the plaintiffs are
in possession of the suit land they cannot
be evicted save due process of law and
therefore, they are entitled to get an
injunction in their favour as prayed for in
the suit. Their claim of title by adverse
possession, since not maintainable, has
been rightly refused by the Courts below.
23.The appeal, therefore, is partly allowed.
24.The defendant-respondents are
restrained from entering into and/or
disturbing the possession of the plaintiffs in
the suit land save and except due process
of law.
25. Parties are to bear their own costs"
13. Thereafter, in pursuance of the judgment of the
Hon'ble High Court the present D.H. plaintiff O.P.
respondents filed one regular suit before the Court of
Learned Civil Judge, Senior Division, Court No.2, West
Tripura, Agartala, which was numbered as T.S. No.49 of
2016 and Learned Trial Court below by judgment and order
dated 03.04.2018 decreed the suit in favour of the present
D.H. plaintiffs O.P. respondents. The operative portion of the
judgment and order runs as follows:
"In the result, this suit stands decreed
without contest and without costs that
plaintiffs are entitled for recovery of the
possession of the suit land measuring 1½
gandas of Mouja-Teliamura, Khatian no.60,
plot no.2362 by way of eviction of the
defendants from the suit land. The
defendants are hereby directed to handover
the vacant possession of the suit land to
the plaintiffs within 2(two) months from
today.
With the above observation the suit is
disposed of without contest and without
costs. "
14. Challenging that judgment, the respondent-
defendants of said suit No.T.S. 49 of 2016 preferred an
appeal before the Court of Learned District Judge, which was
numbered as T.A. No.15 of 2018 before the Court of Learned
District Judge, West Tripura, Agartala. Learned District Judge
by judgment and order dated 29.04.2019 dismissed the said
appeal. The operative portion of the judgment and order
runs as follows:
"Now, therefore, it is held that the appeal is
devoid of merit and accordingly same is
dismissed with cost in favour of the
plaintiffs-respondents.
The judgment passed by Ld. Civil Judge,
Senior Division, Court No.2, West Tripura,
Agartala dated 03.04.2018 in Title Suit
no.49 of 2016 and consequent decree
thereof are affirmed.
The appeal is disposed of on contest."
15. Again, the defendants of the original suit i.e. the
appellants of the aforesaid Title Appeal No.15 of 2018,
further preferred Second Appeal before the High Court which
was numbered as RSA 24 of 2019 and after hearing both the
sides, this High Court by judgment and order dated
14.05.2019 again dismissed the appeal filed by the
appellants. The operative portion of the order of the High
Court runs as follows:
"Mr. Biswas, learned counsel has further
submitted that the suit may be remanded
for extending opportunity to the defendant-
appellants to file the written statement, but
in a categorical words the first appellate
court has discarded such prayer, inasmuch
as, according to the first appellate court, no
fruitful purpose in the circumstances of the
case would be served. If the suit is
remanded, this will be nothing short of
abuse of the process of the court. In the
premises as stated, the judgment of the
trial court has been held to have not
suffered any wrong or illegality. By means
of this appeal, the said judgment of the
first appellate court has been challenged.
No substantial question of law is made out
in this appeal. The grounds of objection as
raised are all shut and closed in the former
suit or by the order of this High Court when
similar objection was carried out. Hence,
this appeal stands dismissed.
However, Mr. Biswas, learned counsel has
submitted that the appellants may
approach the apex court in respect of the
order passed by this court, if some
reasonable time is provided to them.
Within a period of 3(three) months, the
appellants may take recourse as proposed.
During that time, the execution case as
reported to have set in motion shall not
proceed."
16. After that, the said appellants further preferred
SLP before the Hon'ble Supreme Court and the Hon'ble
Supreme Court in SLP No.SLA (C) No.20169 of 2019 by
order dated 03.09.2021 dismissed the Special Leave to
Appeal:
"We do not see any reason to interfere. The
Special Leave Petitions are, accordingly,
dismissed.
Pending application, if any, also stand
disposed of."
17. Thereafter, the decree-holders preferred
execution case which was numbered as Ex(T)25 of 2018
before the Learned Trial Court wherein the present appellant
filed an application under Order XXI, Rule 97-101 of CPC
which was numbered as Misc.45 of 2021 and after taking
evidence, Learned Trial Court below dismissed the same
application filed by the appellant. The operative portion of
the order dated 29.09.2022 runs as follows:
"27. As a sequel to the above findings, I
hold that the petitioner even failed to
establish her claim of possession over any
part of the decretal land and accordingly
she is not entitled to any relief at all. The
petition stands dismissed.
28. The petitioner is asked to pay an
amount of Rs. 20,000/- (Rupees Twenty
Thousand) to the DH/OPs for resisting the
execution without any just ground."
18. Challenging that order, the present appellant
further preferred appeal before the Court of Learned
Additional District Judge, Khowai which was numbered as
Civil Misc. (Appeal) No.02 of 2022 and the same was also
dismissed by order dated 27.07.2023. For the sake of
convenience, I would also like to refer here in below the
operative portion of the order of Learned First Appellate
Court in Misc. (Appeal) No.02 of 2022 which runs as follows:
"Due to the aforesaid findings, I hold that
the appellant petitioner has failed to
establish her claim of possession over any
part of the decreetal land and the Trial
Court has arrived at a correct finding after
considering all the oral and documentary
evidences. So, I do not find any ground to
interfere with the order of Ld. Civil Judge
(Sr. Div) Court No.2, Khowai dated
29.09.2022 in connection with case No.Misc
45 of 2021 arising out of Ex(T) 25 of 2018.
But the cost which has been imposed upon
the petitioner to pay an amount of
Rs.20,000/- to the D.H./O.Ps appears to be
exorbitant and meaningless because the
statue provides, every right to the
petitioner for resisting the execution if he
or she has any legitimate case. Right to
appeal is a statutory right which can be
exercised by any legitimate person to
substantiate his or her claim. The present
appellant is an aged lady about 90 years of
age and she may not be knowing the
intricacies of law, so for preferring appeal,
I do not find prudent to impose cost of
Rs.20,000/- upon the appellant petitioner.
So I direct that the cost of Rs.20,000/-
imposed upon the appellant-petitioner is
hereby rejected and I order no cost to be
paid by the appellant-petitioner to the
D.H/O.Ps.
In the result the appeal is dismissed as it is
devoid of merit.
The Stay Order, if any, shall stands vacated.
With the aforesaid observation the present
appeal is disposed of on contest.
Let the copy of this Final Order along with
the L.C Record be sent back to the
concerned Trial Court after observing all
legal formalities."
19. Thereafter, as already stated the appellant again
preferred appeal before the High Court under Order XXI,
Rule 103 read with Section 104 of CPC which was numbered
as SAO No.01 of 2023 and after hearing both the sides, this
High Court by judgment and order dated 05.10.2023 also
dismissed that appeal. The operative portion runs as follows:
"[21] The present SAO has also been filed
under Order XXI, Rule 103 of CPC. As per
Rule 103, it relates to Rule 97 to 101 and
none of the rules comes to the rescue of
the appellant for preferring the present
appeal. Section 104 of CPC prescribes no
appeals lie except on the enumerated
provisions of the Code.
Since the claim of the appellant has been
rejected by the Court below in case No.Civil
Misc. (Appeal) 02 of 2022 by order dated
27.07.2023, if the same is read in
consonance with the Rule 103 of CPC, it
needs to be treated itself as a decree.
Hence, the appellant herein, aggrieved by
the said decree, ought to have preferred a
regular appeal under the Code of Civil
Procedure but not an appeal against the
order.
In view of the above, the SAO is not
maintainable and accordingly, the same is
dismissed.
As a sequel, miscellaneous application(s),
pending if any, shall also stand closed."
20. From the said judgment, it appears that in para
No.19 of the said judgment, this High Court specifically gave
the following observation:
"[19] It is seen from the record i.e from the
petitions filed by the appellant in the
instant SAO as well as in the Civil Misc.
(Appeal) 02 of 2022 and Civil Misc.45 of
2021, that one of the defendants, „Sri Nitai
Ch. Paul‟ is the son of „Lt. Haribal Paul‟
and the present appellant herein, Smt.
Haridasi Paul, wife of Lt. Haribal Paul is
related to the Page 10 of 11 defendant in
the suit. The name of the said defendant
(respondent herein) reflected in the cause-
title of the aforesaid petitions, is as under:
".......13. Sri Nitai Ch. Paul
S/O Lt. Haribal Paul -all are
residents of Teliamura Bazar,
PO & PS Teliamura, District
Khowai, Tripura"
It is reasonably presumed that
appellant herein is the mother of the
defendant. In view of the same, this Court
has no hesitation to draw adverse inference
against the appellant and the defendant to
say that since the defendant had failed to
succeed, they have found out a method by
filing an application under Order XXI Rule
97 to 103 before the Court below
contending that the appellant herein is a
stranger/third party to the suit. Therefore,
the judgment and decree and the execution
proceeding is not binding on her.
Admittedly, the appellant herein, failed to
convince the Court below by producing any
documentary evidence to say that the
appellant is in adverse possession and he is
having right over the property.
In view of the above, this Court draws
an adverse inference against the appellant
as well as the defendant as indicated
above."
21. Further, I would also like to refer herein below the
relevant portion of Section 104 of CPC which runs as follows:
"104. Orders from which appeal lies.--(1)
An appeal shall lie from the following
orders, and save as otherwise expressly
provided in the body of this Code or by any
law for the time being in force, from no
other orders:--
[***]
[(ff) an order under section 35A;]
[(ffa) an order under section 91 or
section 92 refusing leave to institute a
suit of the nature referred to in
section 91 or section 92, as the case
may be;]
(g) an order under section 95;
(h) an order under any of the
provisions of this Code imposing a fine
or directing the arrest or detention in
the civil prison of any person except
where such arrest or detention is in
execution of a decree;
(i) any order made under rules from
which an appeal is expressly allowed
by rules:
[Provided that no appeal shall lie against
any order specified in clause (ff) save on
the ground that no order, or an order for
the payment of a less amount, ought to
have been made.]"
22. Now, after hearing detailed argument of both the
sides and after going through the records of the Learned
Court below and after going through the series of judgments
and the last judgment of this High Court in SAO No.01 of
2023 wherein this High Court already gave a specific finding
in para No.19 of the said judgment that the appellant has
failed to prove her right of adverse possession over the suit
land. So, this Court deems it prudent to decide the following
questions to decide this appeal:
"1) Whether the appeal filed by the
appellant is maintainable under Section 100
of CPC?
2) Whether there is any substantial
questions of law to be formulated in this
appeal?"
23. Learned Counsel for the appellant as already
stated that in pursuance of the judgment of the High Court in
SAO No.01 of 2023, the appellant has preferred this Second
Appeal under Section 100 of CPC. Learned Counsel further
submitted that both the Courts below failed to appreciate the
evidence on record of the appellant regarding her plea of
adverse possession over the suit land for which the appellant
was compelled to file the Second Appeal under Section 100
of CPC.
Learned Counsel for the appellant further
submitted that the order passed by the Learned First
Appellate Court was a decree, so, there was every scope on
the part of appellant to file this Second Appeal, since, as per
Section 100 of CPC, appeal shall lie to the High Court from
every decree passed in appeal and the order of Learned
Additional District Judge was also a decree, so, on this point,
Learned Counsel for the appellant submitted that this
present appeal is very much maintainable and since the
Learned Courts below failed to appreciate the evidence on
record, the plea of adverse possession raised by the
appellant. So, the interference of this Court is required and
urged for setting aside the order passed by Learned
Additional District Judge, Khowai, Judicial District in Civil
Misc. (Appeal) No.02 of 2022.
24. On the other hand, as already stated, Learned
Senior Counsel, Mr. S. Deb for the respondents D.H.
submitted that this present appeal was not maintainable as
the order passed by Learned Additional District Judge was
not a decree, so, the present appeal filed under Section 100
of CPC be dismissed henceforth.
Learned Senior Counsel further submitted that the
present appellant suppressed the fact that she was one of
the legal heirs of Gouranga Chandra Paul and as already
stated the legal heirs of Gouranga Chandra Paul in the series
of litigations pending amongst the rival parties never
submitted that the appellant was one of the legal heirs.
25. Now, only to resist the decree with a vague plea
of possession, she appeared before the Learned Trial Court
stating to be a stranger and a third party filed objection
petition which was lawfully dismissed by the Learned Trial
Court in Civil Misc. No.45 of 2021 and thereafter, the present
appellant preferred an appeal under Order XXI, Rule 103 of
CPC, which was also dismissed by the Learned First Appellate
Court on the ground that the plea of adverse possession
could not be established by the appellant. So, Learned Senior
Counsel urged for dismissal of this appeal being not
maintainable and there are no substantial questions of law to
be formulated.
26. Now for the sake of convenience, I would like to
refer herein below the relevant provisions under Order XXI,
Rule 97-101 of CPC which provides as under:
"97. Resistance or obstruction to
possession of immovable property.--
(1) Where the holder of a decree for the
possession of immovable property or the
purchaser of any such property sold in
execution of a decree is resisted or
obstructed by any person in obtaining
possession of the property, he may make
an application to the Court complaining of
such resistance or obstruction.
(2) Where any application is made under
sub-rule (1), the Court shall proceed to
adjudicate upon the application in
accordance with the provisions herein
contained.
98. Orders after adjudication.--(1) Upon
the determination of the questions referred
to in rule 101, the Court shall, in
accordance with such determination and
subject to the provisions of sub-rule (2),--
(a) make an order allowing the
application and directing that the
applicant be put into the
possession of the property or
dismissing the application; or
(b) pass such other order as, in
the circumstances of the case, it
may deem fit.
(2) Where, upon such determination, the
Court is satisfied that the resistance or
obstruction was occasioned without any
just cause by the judgment-debtor or by
some other person at his instigation or on
his behalf, or by any transferee, where such
transfer was made during the pendency of
the suit or execution proceeding, it shall
direct that the applicant be put into
possession of the property, and where the
applicant is still resisted or obstructed in
obtaining possession, the Court may also,
at the instance of the applicant, order the
judgment-debtor, or any person acting at
his instigation or on his behalf, to be
detained in the civil prison for a term which
may extend to thirty days.
99. Dispossession by decree-holder or
purchaser.--(1) Where any person other
than the judgment-debtor is dispossessed
of immovable property by the holder of a
decree for the possession of such property
or, where such property has been sold in
execution of a decree, by the purchaser
thereof, he may make an application to the
Court complaining of such dispossession.
(2) Where any such application is made,
the Court shall proceed to adjudicate upon
the application in accordance with the
provisions herein contained.
100. Order to be passed upon application
complaining of dispossession.--Upon the
determination of the questions referred to
in rule 101, the Court shall, in accordance
with such determination,--
(a) make an order allowing the
application and directing that the
applicant be put into the
possession of the property or
dismissing the application; or
(b) pass such other order as, in
the circumstances of the case, it
may deem fit.
101. Question to be determined.--All
questions (including questions relating to
right, title or interest in the property)
arising between the parties to a proceeding
on an application under rule 97 or rule 99
or their representatives, and relevant to the
adjudication of the application, shall be
determined by the Court dealing with the
application, and not by a separate suit and
for this purpose, the Court shall,
notwithstanding anything to the contrary
contained in any other law for the time
being in force, be deemed to have
jurisdiction to decide such questions."
27. In the given case, the appellant challenging the
order passed by the Learned Trial Court in Civil Misc.45 of
2021 arising out of Ex(T)25 of 2018 preferred appeal before
the Court of Learned District Judge which was later on
transferred to the Court of Learned Additional District Judge,
Khowai and the case was numbered as Civil Misc. (Appeal)
02 of 2022 under Order XXI, Rule 103 of CPC and
challenging the order of dismissal of appeal, they preferred
SAO before the High Court which was also dismissed by this
High Court vide order dated 05.10.2023 in connection with
SAO 01 of 2023, as already stated.
28. Now, we are to decide whether the order passed
under Order XXI, Rule 103 of CPC is a decree or not. For the
sake of convenience, I would like to refer herein below Order
XXI, Rule 103 of CPC, which provides as under:
"103. Orders to be treated as decrees.--
Where any application has been
adjudicated upon under rule 98 or rule 100,
the order made thereon shall have the
same force and be subject to the same
conditions as to an appeal or otherwise as
if it were a decree."
29. In this regard, I would like to refer one citation of
our Hon'ble Supreme Court reported in Asgar and Others
vs. Mohan Varma and Others dated 05.02.2019, reported
in (2020) 16 SCC 230, wherein in para No.46 Hon'ble the
Apex Court observed as under:
"46 .In view of the settled position in law,
as it emerges from the above decisions, it
is evident that the appellants were entitled,
though they were strangers to the decree,
to get their claim to remain in possession of
the property independent of the decree,
adjudicated in the course of the execution
proceedings. The appellants in fact set up
such a claim. They sought a declaration of
their entitlement to remain in possession in
the character of lessees. Under Order 21
Rule 97, they were entitled to set up an
independent claim even prior to their
dispossession. Under Order 21 Rule 101, all
questions have to be adjudicated upon by
the court dealing with the application and
not by a separate suit. Upon the
determination of the questions referred to
in Rule 101, Order 21 Rule 98 empowers
the court to issue necessary orders. The
consequence of the adjudication is a decree
under Rule 103."
30. Further, in Sameer Singh and Another vs.
Abdul Rab and Others dated 14.10.2014 reported in
(2015) 1 SCC 379, wherein in para No.22, Hon'ble the
Apex Court also observed as under:
"22. In Babulal: Babulal v. Raj Kumar,
(1996) 3 SCC 154 the appellant
apprehending that it would be dispossessed
in an execution proceeding had filed an
application based on possessory title and
obtained interim injunction. He had also
filed an application stating, inter alia, that
he should not be dispossessed. His
objection was overruled by the executing
court holding that since he had not been
dispossessed, an application under Order
21, Rule 98 was not maintainable. The said
view was affirmed by the High Court in civil
revision petition. The Court while
interpreting the Order 21, Rules 98 to 102
referred to the decision in Bhanwar Lal v.
Satyanarain:(1995) 1 SCC 6 and opined
that it is clear that an adjudication is
required to be conducted under Order 21,
Rule 98 before removal of the obstruction
caused by the objector or the appellant and
a finding is required to be recorded in that
behalf. The Court ruled that the order is
treated as a decree under Order 21, Rule
103 and it is subject to an appeal. It has
been observed in the said case that prior to
1976, the order was subject to suit, but
under the amended Code, right of suit
under Order 21, Rule 63 of old Code has
been taken away, and the determination of
the question of the right, title or interest of
the objector in the immovable property
under execution needs to be adjudicated
under Order 21, Rule 98 which is an order
and is a decree under Order 21, Rule 103
for the purpose of appeal subject to the
same conditions as to an appeal or
otherwise as if it were a decree. The Court
further opined that the procedure
prescribed is a complete code in itself and,
therefore, the executing court is required
to determine the question.
31. From the aforesaid principals of law laid down by
the Hon'ble Supreme Court, it is clear that the order passed
under Order XXI, Rule 103 be treated as a decree which is
subjected to an appeal. More so, in deciding the matters in
controversy, this Court also has done some legal exercise on
on ChatGPT, searching for the following query:
"i) Whether the Second Appeal would lie
under Section 100 of CPC challenging the
order passed in First Appeal under Order
XXI, Rule 103?
Research taking assistance of GPT-4o
shows:
An order passed under Order 21 Rule 103
of the Civil Procedure Code (CPC) is
considered a decree. As such, it is
appealable as a decree under Section 96 of
the CPC. A second appeal to the High Court
under Section 100 of the CPC is permissible
against the first appellate court's order
under Order 21 Rule 103, provided that the
appeal involves a substantial question of
law. Thus, a second appeal under Section
100 CPC cane be preferred against an order
of the first appellate court under Order 21
Rule 103, subject to the condition that it
raises a substantial question of law."
From the above, also it appears that there is
scope for preferring appeal under Section 100 of CPC, if
there is material to raise substantial question of law.
32. Situated thus, as submitted by the Learned Senior
Counsel, Mr. S. Deb for the respondent D.H., that the
present appeal is not maintainable under Section 100 of CPC
is not correct, cannot be accepted, rather it appears that the
appeal filed by the appellant was very much maintainable
under Section 100 of CPC before the High Court since, the
order of Learned Additional District Judge in Misc. Appeal
No.45 of 2021 was a decree.
33. Now, regarding formulation of substantial
question of law in the light of judgment of the Hon'ble
Supreme Court of India in Nazir Mohamed vs. J. Kamala
And Ors. reported in (2020) 19 SCC 57, it appears that
the following factors are needed to be taken into
consideration:
"(i) The word "substantial" means having
substance, real, of sound worth, important
or considerable. It contrasts with
something technical, of no consequence, or
merely academic.
(ii) A substantial question of law must be
debatable, not previously settled by law or
binding precedent, and must have a
material bearing on the decision of the case
and/or the rights of the parties.
(iii) There must be a foundation for the
question of law laid in the pleadings, and it
should emerge from the findings of fact by
lower courts. It must be necessary to
decide the question of law for a just
decision of the case.
(iv) The High Court will generally not
interfere with the concurrent findings of
the lower courts. Exceptions include cases
where material evidence has been ignored
or where there is no evidence at all.
(v) The legal effect of the terms of a
document is a question of law.
Misconstruction of a document or wrong
application of a legal principle in construing
a document gives rise to a question of law.
(vi) A question of law having a material
bearing on the decision of the case,
affecting the rights of the parties, will be
substantial if it is not covered by any
specific legal provisions or settled legal
principles and involves a debatable legal
issue.
(vii) A substantial question of law arises
when a court below has decided a matter
ignoring or acting contrary to a clear
principle or binding precedent. This arises
not because the law is debatable but
because the decision violates the settled
position of law.
34. Further in M. Radheshyamlal v. V. Sandhya
and Another dated 18.03.2024 reported in (2024) SCC
OnLine SC 318 wherein in para Nos.11 and 12, the Hon'ble
Apex Court observed as under:
"11. In the case of Karnataka Board of
Wakf v. Govt. of India, in paragraph 11, this
Court has laid down the law regarding the
plea of adverse possession. Paragraph 11
reads thus:
"11. In the eye of the 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 the
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 Sakina
[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 the
true owner, it is for him to clearly
plead and establish all facts necessary
to establish his adverse possession.
[Mahesh Chand Sharma (Dr.) v. Raj
Kumari Sharma [(1996) 8 SCC 128.]"
(underline supplied)
12. Therefore, to prove the plea of adverse
possession:-
(a) The plaintiff must plead and prove that
he was claiming possession adverse to the
true owner;
(b) The plaintiff must plead and establish
that the factum of his long and continuous
possession was known to the true owner;
(c) The plaintiff must also plead and
establish when he came into possession;
and
(d) The plaintiff must establish that his
possession was open and undisturbed.
35. Here in the given case from the record of the
Learned Trial Court, it appears that the present appellant has
totally failed the aforesaid factors to establish her right of
adverse possession over the decreetal land. So, both the
Learned Court below/Executing Court and the Learned First
Appellate Court rightly turned down the claim of the
appellant in respect of the suit land. Furthermore, in the
application filed by the appellant before the Executing Court,
the quantum of land was shown as 14 ½ gandas in the
schedule but factually, it should be 0.030 acres. There was
no explanation in this regard from the side of the appellant in
course of hearing of argument. Even, in view of the principle
of law laid down by the Hon'ble Apex Court in Nazir
Mohamed vs. J. Kamala And Ors.(supra) and also on
perusal of the records of the Learned Court below, further it
appears that there is no material in this case to formulate
any substantial question of law. So, the points for
determination, as mentioned above are accordingly
answered in negative.
36. Situated thus, after hearing both the sides and
also on considering the materials on record, it appears to this
Court that there is/are no material in this appeal to
formulate any substantial questions of law. So, the present
appeal filed by the appellant under Section 100 of CPC is not
maintainable and the same is liable to be dismissed which I
hereby do.
37. In the result, the appeal filed by the appellant
under Section 100 of CPC is hereby dismissed on contest on
the ground that there is no materials to formulate any
substantial questions of law in this appeal. Hence, the same
is dismissed on admission stage. The judgment/order dated
27.07.2023 delivered by the Learned Additional District
Judge, Khowai in connection with case No.Civil Misc (Appeal)
No.02 of 2022 arising out of the case No.Misc.45 of 2021 in
Ex(T) 25 of 2018 is hereby upheld and accordingly, it is
affirmed.
38. Since, the subject matter of the dispute is a long
pending one and the matter is pending for execution of
decree before the Learned Trial Court. So, all endeavour
should be made by the Learned Trial Court to execute the
decree passed in connection with T.S. 49 of 2016 in case
No.Ex(T) 25 of 2018 preferably within a period of three
months from the date of receipt of the copy of this
judgment.
Prepare decree accordingly.
Send down the LCRs along with copy of the
judgment for immediate compliance.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.07.23 16:01:43
+05'30'
Purnita
