Tripura High Court
Defendant vs Mst Nehera Begam on 12 March, 2024
HIGH COURT OF TRIPURA
AGARTALA
RSA 12 of 2022
Md. Ismail Miah,
son of late Khurshid Miah,
resident of Kamalasagar, Miah Para,
P.O. Kamalasagar, P.S. Madhupur,
District : Sepahijala, aged about-54 years,
By occupation-Cultivation, By faith-Muslim,
Citizen of India
----Defendant-Appellant(s)
Versus
Mst Nehera Begam,
wife of Md. Zahir Miah @ Jaher Miah,
resident of kamalasagar, Miah Para,
P.O. Kamalasagar, P.S. Madhupur,
District : Sepahijala
----Respondent(s)
For Appellant(s) : Mr. N. Chowdhury, Adv.
For Respondent(s) : Mr. Sankar Bhattacharjee, Adv.
Date of Hearing : 04.03.2024
Date of Judgment
& Order : 12.03.2024
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Heard Mr. N. Chowdhury, Learned counsel appearing for
the appellant-defendant as well as Mr. Sankar Bhattacharjee, Learned
counsel appearing for the respondent-plaintiff.
2. This is an appeal under Section 100 of CPC challenging
the judgment dated 11.11.2019 and decree dated 22.11.2019 and
corrected decree dated 12.02.2020 in Title Appeal No.35 of 2017
delivered by Learned Additional District Judge, Sepahijala, Bishalgarh
by setting aside the judgment dated 11.11.2019 and decree dated
22.11.2019 in connection with case No.Title Suit 39 of 2014 delivered
by Learned Civil Judge, Senior Division, West Tripura, Agartala, Court
No.2.
3. Before enter into the merit of the appeal, let us discuss
about the subject matter of the dispute cropped up amongst the
parties. One Wahab Ali, S/o of Late Majlu Ali @ Malu Miah represented
by his lawful attorney Md. Jahangir Alam, S/o of Md. Jahir Miah of
Kamalasagar Miah Para, P.O. Kamalasagar, P.S. Bishalgarh, District-
Sepahijala filed one suit before the Court of Learned Civil Judge,
Senior Division, Court No.1, West Tripura, Agartala for a decree of
declaration of title and for recovery of possession under Section 5 of
the Specific Relief Act against the defendant Md. Ismail Miah.
4. According to the plaintiff, the land measuring 1.30 acres
of Mouja-Kamalasagar, Tahashil-Bishalgarh, Revenue Circle-
Bishalgarh, Sabek Khatian No.306, Hal Khatian No.580 comprised in
Old Plot No.812(P) corresponding to Hal Dag No.769/1677 as
described in Schedule-B of the plaint is the part of land measuring
2.34 acres described in Schedule-A of the plaint and Schedule-C is the
suit land which is part of land measuring 1.30 acres of land as
mentioned in Schedule-B of the plaint. According to the original
plaintiff, he was landless and as such on his prayer in the year 1981,
the Government of Tripura allotted land measuring 2.34 acres under
Mouja-Kamalasagar to him and he got delivery of possession of the
entire land measuring 2.34 acres and Khatian was prepared in his
name vide No.306 which was later on finally published in the year
1982 and the said plots of land comprised in Hal Plot No.769 and 740
under Mouja-Kamalasagar which was described in Schedule-A of the
plaint. After getting the allotment, the plaintiff started enjoying the
entire land by constructing dwelling hut and planted various trees
enjoying usufructs therefrom.
5. After that, the Government vide L.A. Case No.12/88
under Serial No.58 in the year 1988 for the purpose of construction of
Border Road acquired land measuring 0.70 acres from Plot No.769(P)
of the total quantum of land measuring 2.34 acres and accordingly,
the plaintiff received award/compensation from the Government. After
acquisition, rest quantum of land measuring 1.30 acres left under Plot
No.769(P) and 0.34 acres of land left under Plot No.740 in Khatian
No.306 under Mouja-Kamalasagar. In the year 1994, the appellant-
defendant requested the plaintiff to allow him to use some land and
out of sympathy, the plaintiff allowed to use some portion of land
from the said land measuring 1.64 acres left after acquisition. The
land was permitted to be used only for the purpose of survival but not
for any other purpose. In the month of May, 2007, all on a sudden,
according to plaintiff, the appellant-defendant started cutting some
valuable trees and when the plaintiff raised protest, that time, some
dispute cropped up amongst them and the plaintiff noticed that the
defendant illegally occupied 0.70 acres of land as mentioned in the
Schedule-C of the plaint which is the suit land of the suit. On
26.12.2007, the plaintiff requested the defendant again to vacate the
suit land as occupied by him as he was not further allowed to remain
as permissive possessor but the defendant denied to vacate the same
and thus, he became as illegal possessor. But that time, the
defendant stated that he is the owner of the suit land. After that, the
plaintiff collected the relevant Khatian No.306 and found that in his
Khatian total land measuring 2.34 acres was shown again, although,
after acquisition, he had left only 1.64 acres of land. After that, he
again enquired the matter and collected a computerized copy of
Khatian No.306 of Mouja-Kamalasagar that time he found that out of
1.64 acres of land in Sabek Plot No.1141(P), Hal Plot No.740 only
0.34 acres of land has been recorded instead of 1.64 acres and after
collecting the same, it was found that in the said Khatian MR Case
No.68/96 was mentioned. Accordingly, he collected the relevant
Khatian against MR Case No.68/96 when he found that a separate
Khatian bearing No.580 under Mouja-Kamalasagar was created in the
name of the defendant as an allottee which was described in
Schedule-B of the plaint. It was also further detected that Sabek Plot
No.812(P) and Hal Plot No.769/1677 is recorded in the name of
defendant which was originally part of land of Khatian No.306
standing in the name of the plaintiff. That time, it came to his
knowledge that the defendant in connivance with Tahashil staff
managed to procure one Khatian in his favour but the plaintiff never
sold the said land to the appellant-defendant.
6. After that, the plaintiff filed an application on 02.05.2011
to the Office of D.M. & Collector, West Tripura for eviction of the
defendant and accordingly, the D.M. & Collector in Revenue Case
No.21/2012 enquired the matter through DCM, Bishalgarh when it
was detected that no such MR Case No.68/96 was found available in
Debipur Tahashil Office and the Khatian No.580 was created without
any instruction from the appropriate authority. After creation of
separate District in Sepahijala, the records of Revenue proceeding was
transferred to D.M. & Collector, Sepahijala and accordingly, on receipt
of the enquiry report of Tahashilder of Debipur Tahashil, the DCM
Bishalgarh submitted his report to SDM, Bishalgarh stating that the
Khatian number created in the name of Ismail Miah vide No.580 may
be treated as illegal and liable to be cancelled. On the basis of field
enquiry report of DCM Bishalgarh and SDM Bishalgarh, D.M. &
Collector, Sepahijala by order dated 30.06.2012 observed that the
opposite party i.e. the appellant-defendant herein by crafty trick got
mutation without producing any valid documents. So, he opined that
the mutation proceeding No.68/96 be liable to be cancelled.
7. Further, according to the plaintiff, before the District
Collector it was crystal clear that MR proceeding No.68/96 was false
and fabricated one and he ordered to identify the official who were
involved with the misdeed. The plaintiff further asserted that that time
the defendant with an ulterior motive filed a suit for declaration of
title, confirmation of possession and perpetual injunction which was
registered as T.S. Case No.124/11 before the Court of Learned Civil
Judge, Senior Division, Court No.2, West Tripura, Agartala. And the
present defendant also filed an injunction petition along with the
original suit but the Learned Court declined to pass any order of
injunction in favour of the defendant vide order dated 15.11.2011.
Thereafter, the defendant preferred one Misc. appeal against the
order dated 15.11.2011 before the Court of Learned Addl. District
Judge, Court No.5, West Tripura, Agartala and by the judgment dated
07.07.2012 the Learned Addl. District Judge, Court No.5, West
Tripura, Agartala dismissed the Misc. appeal. After that, on
12.10.2012, the present defendant filed one petition under Order 26
Rule 9 for local investigation before the Court of Learned Civil Judge,
Senior Division Court No.2 in T.S.124/2011 in respect of land as
mentioned in Schedule-B of the plaint and the Advocate Commissioner
submitted his report on 04.12.2013 and in the report it was asserted
that the plaintiff was in possession of some portion of land along with
huts standing therein where he was residing along with his family
members and the defendant was also illegally possessing some
quantum of land. Ultimately the suit filed by the appellant-defendant
was dismissed. However, with the aforesaid assertions the plaintiff
filed the suit as stated above.
8. It was further asserted that as the plaintiff was aged
about 84 years of age, so he filed the suit through his constituted
attorney. The appellant-defendant contested the suit by filing a
written statement stating that the suit was not maintainable rather he
took the plea that prior to filing of the suit he filed another suit
against the plaintiff which was numbered as T.S.124/11 for
declaration of right, title, confirmation and possession with injunction.
It was further asserted that the suit land along with other lands was
originally belong to Kayemi Taluk No.158 and one Surendranath Nandi
was the owner and later on, it was recorded in khash Khatian and
thereafter, the Government allotted land measuring 1.30 acres to the
defendant from C.S. Plot No.812 and vide mutation he got Khatian
No.580 comprising old C.S. Plot No.812(P) and present C.S. Plot
No.769/1677. The appellant-defendant also in his written statement
submitted that a portion of land measuring 0.70 acres for construction
of road was acquired by the Government from one jotedar Wayab Ali
son of Malum Ali but said Wayab Ali was not the present plaintiff. He
further submitted that Wahab Ali son of Late Majlu Ali left for
Bangladesh since long back and the present plaintiff with a deceitful
manner claimed that he was the owner of the suit land and prayed for
dismissal of the suit. Upon the pleadings of the parties, Learned Court
below framed the following issues :
"ISSUES
1) Is the suit maintainable in its present form and nature?
2) Has the Plaintiff any right, title and interest over the suit
land?
3) Whether plaintiff has any cause of action to institute the
instant suit?
4) Whether the plaintiff is entitled to get a decree of
recovery of possession of land measuring 0.70 acres of land
mentioned in Schedule-C of the plaint after removing all
obstruction/construction therefrom created by the
defendant, his men and agent?
5) What other relief/reliefs the parties are entitled to?''
9. To substantiate the issues, both the parties have adduced
oral/documentary evidence on record :
"In order to prove his claim the plaintiff has examined four
numbers of witnesses namely -
1) Md. Jahangir Alam as P.W.1
2) Md. Jahir Miah as P.W.2
3) Md. Jalil Miah as P.W.3
4) Mr. Sahaalam Miah as P.W.4
The plaintiff had produced some documents which were
exhibited as follows :-
1) Certified copy of Khatian No.306 of Mouja-Kamalasagar -
(Exbt.1)
2) Another Khatian No.580 of Mouja-Kamalasagar -(Exbt.2)
3) Photocopy of application, dated 02.05.2011
4) Photocopy of letter, dated 13.05.2011
5) Certified copy of Order, dated 30.06.2012 along with
certified copy of enquiry report, dated 05.11.2011,
27.10.2011, 26.03.2012, 23.04.2012 and 05.12.2011 -
(Exbt.3 series)
6) Certified copy of letter, dated 28.08.2013 along with
letter, dated 13.08.2013 and letter, dated 02.07.2013 -
(Exbt.4 series)
7) Certified copy of letter, dated 19.03.2012 -(Exbt.5)
8) Copy of Plaint in connection with TS 124 of 2011 -(Exbt.6)
9) Certified copy of order, dated 15.11.2011 in connection
with Misc.143 of 2011 and the Judgment in connection with
Misc. Appeal No.01/2012 -(Exbt.7 series)
10) Certified copy of Commissioner's report in connection
with TS 124/2011 -(Exbt.8)
11) Copy of Tripura Gazette Extra-Ordinary issue, dated
01.06.1988 -(Exbt.9)
The defendant side has also examined four numbers of
witnesses namely-
1) Ismail Miah as D.W.1
2) Abdul Kadir as D.W.2
3) Madhu Miah as D.W.3
4) Hiran Miah as D.W.4
The defendant prayed to adopt already the exhibited
documents on behalf of plaintiff in TS 124/2011, in this suit
on behalf of defendant which were re-numbered as follows :-
1) Certified copy of Khatian No.580 of Mouja-Kamalasagar
(new and old) -(Exbt.A)
2) Another Khatian No.1 of Mouja-Kamalasagar in the name
of Tripura Prasashan connected with Plot No.812 -(Exbt.B)
3) Electric Consumer Pass Book of plaintiff -(Exbt.C)
4) Certified copy of old Survey Settlement Map -(Exbt.D)
5) Certified copy of FIR, Ejahar -(Exbt.E series)
6) Voter list published on 05.01.2012 of Kamalasagar
Assembly Constituency -(Exbt.F)
7) Photo copy of Voter list of Bangladesh of Jagisha
Constituency along with original envelop of Bangladesh (Air
Mail) -(Exbt.G series)(S/O)
8) Certified copy of resolution, dated 28.0.2011 of
Kamalasagar Gaon Panchayat and mutation record in c/w MR
Case No.68/96 -(Exbt.H series)
9) Certified copy of Tripura Gazette (extra ordinary issue),
dated 01.06.1988 -(Exbt.G series)"
10. Finally, on completion of trial and after hearing both
sides, Learned Trial Court below by the judgment dated 02.06.2017
dismissed the suit on the ground that the plaintiff had no right, title
and interest over the suit land. For the sake of convenience, I would
like to mention herein below the operative portion of the judgment
dated 02.06.2017 which reads as under :
"In the result, this suit stands dismissed on contest without
costs.
The plaintiff has no right, title and interest over the suit land
as well as not entitled for a decree of recovery of possession
over the suit land.
With the above observation the suit is finally disposed of on
contest without costs.
Prepare decree accordingly.
Enter the result in Trial Register."
11. Challenging that judgment, the plaintiff as appellant
preferred an appeal before the Court of Learned District Judge, West
Tripura, Agartala which was numbered as T.A.35 of 2017. After that,
the case was assigned to Learned Additional District Judge, Sepahijala
District, Bishalgarh for disposal as per law.
12. Thereafter, the Learned First Appellate Court after
elaborate hearing of arguments of both the sides allowed the appeal
and reversed the finding of the Learned Trial Court by judgment dated
11.11.2019 and accordingly, the decree was prepared. For the sake of
convenience, I would like to refer herein below the operative portion
of the judgment and order of the Learned First Appellate Court which
is as follows :
"In the result this Appeal by the appellant plaintiff succeed
and as a consequence the Judgment dt.02.06.2017 of the Ld.
Trial Court in Title Suit No.39 of 2014 is set aside.
It is hereby declared that the plaintiff appellant is the owner
and possessor of land measuring 1.30 acres described in
schedule B of the plaintiff and he has right, title and interest
over the suit land and he is entitled to recover the suit land
from the possession of the respondent defendant.
Prepare the decree accordingly.
Send down the LC record to the Ld. Trial Court along with a
copy of this Judgment.
This Title Appeal stands disposed of on contest. "
13. It is to be noted here that during pendency of the appeal
before the Learned First Appellate Court, the original plaintiff expired
leaving behind his daughters. So, by way of substitution, Mst. Nehera
Begam was substituted as an appellant before the Learned First
Appellate Court as per order dated 07.08.2019. Thereafter,
challenging the judgment of First Appellate Court, the present
appellant-defendant namely Md. Ismail Miah has preferred the second
appeal before the High Court. At the time of admission of this appeal,
following substantial question of law was framed vide order dated
28.06.2022:
"Whether the judgment and decree passed by
learned Additional District Judge, Sepahijala
District, Bishalgarh in connection with case no.Title
Appeal 35 of 2017 is perverse?"
14. In course of hearing of arguments, Mr. N. Chowdhury,
Learned counsel appearing for the appellant-defendant has submitted
that the original allottee left for Bangladesh since long days back and
thereafter, he did not come back to India but the plaintiff who filed
the suit was a 3rd person who with a deceitful manner filed the suit
before the Learned Trial Court. Learned counsel further submitted that
the appellant have/had no idea regarding allotment of the suit land in
favour of said plaintiff, rather, he was homeless and landless. So, the
Government finding him in possession allotted land measuring 1.30
acres of land to him which was given after observing all formalities.
He also submitted that as alleged by Learned counsel for the present
respondent-plaintiff the appellant was not the custodian of the MR
proceeding rather it remained under the custody of Revenue Authority
who allotted the land to him. So, no responsibility could be casted
upon him with the allegation that said record could not be traced out.
15. He further submitted that as alleged by the respondent-
plaintiff the revenue proceeding is still pending before the Court of
Learned District Collector, Sepahijala, Sonamura but the Learned First
Appellate Court without waiting for the final report of the District
Collector has passed the order which was not legally tenable in the
eye of law.
16. Learned counsel for the appellant also drawn the
attention of the Court that amongst the parties so many cases and
counter cases were filed and just after the election, the respondent-
plaintiff forcefully ransacked his house and tried to oust him from his
allotted land illegally. Furthermore, the name of the original plaintiff
was struck off from the voter list of 2014 as the original Wahab Ali
was not found to be available in the locality during enquiry.
17. Learned counsel for the appellant also submitted that the
present appellant-defendant filed another suit before the Court of
Learned Civil Judge, Senior Division, West Tripura, Agartala which was
numbered as T.S.124/2011 seeking declaration of title, confirmation
of possession and perpetual injunction and the said suit was dismissed
and the record has been called for by the High Court.
18. Learned counsel for the appellant finally submitted that
Learned Trial Court after considering the oral/documentary evidence
on record rightly and reasonably dismissed the suit of the original
plaintiff but the Learned First Appellate Court without any basis just
on the observation of District Collector, Sepahijala in Revenue
proceeding which is still pending for disposal reversed the finding of
the Learned Trial Court most illegally and urged for allowing this
appeal by setting aside the judgment of First Appellate Court.
19. On the other hand, Mr. Sankar Bhattacharjee, Learned
counsel appearing for the respondent-plaintiff submitted that the
original allottee Wahab Ali filed a suit as plaintiff and he got allotment
of 2.34 acres of land from the Government as he was landless and
Khatian was accordingly created in his name in the year 1982 which
was finally published. In the year 1994, the present appellant
requested him to allow him to stay on a portion of the suit land as he
was homeless and he intended to do something. So, considering his
request, the original plaintiff allowed him to stay on a portion of total
land as permissive possessor. But thereafter, in the year 2007 the
present appellant illegally started removing some valuable trees and
when the original plaintiff objected that time he disclosed that he is
the owner of that land and on close scrutiny it was detected that the
present appellant in connivance with the revenue staff managed to
procure a fake Khatian in his name showing that he has given
allotment of land measuring 1.30 acres. Accordingly, the original
plaintiff sought redress before the District Collector for correction of
record and that time it was detected that vide purported and
fabricated MR Case No.68/1996, 1.30 acres of land was illegally
shown to be given allotment in favour of the present appellant and
accordingly, the District Collector by his order dated 30.06.2012
observed that that was obtained by the appellant by applying fraud
and accordingly, necessary direction was given. Even DCM, Bishalgarh
and SDM, Bishalgarh also opined that the Khatian was illegally created
and observed that it should be cancelled.
20. Learned counsel further submitted that the land
measuring 0.70 acres was acquired by the Government from the total
land measuring 2.34 acres for the purpose of construction of border
road and accordingly vide L.A. proceeding bearing No.12/88 the said
land was acquired and the notification was published in the official
gazette and for acquisition, the original plaintiff got
compensation/award from the Government. But the Learned Trial
Court without appreciating the legal position came to an observation
that the original plaintiff was lacking of title over the suit land and
dismissed the suit. But the First Appellate Court after considering all
the legal aspects reversed the finding of Learned Trial Court which
according to Learned counsel was lawful, justified and reasonable and
urged for upholding the judgment of the Learned First Appellate Court
dismissing the appeal with costs.
21. In respect of other allegations leveled by the appellant
against the original plaintiff in course of hearing, Learned counsel
fairly submitted that those part of arguments were not material for
the decision of the case and furthermore, as alleged by the appellant
that the name of Wahab Ali was struck off from the voter list but later
on, the voter list was again corrected by the authority finding him as
the inhabitant of that area and accordingly, the voter list was again
rectified. Learned counsel for the respondent-plaintiff again submitted
that the other grounds were nothing but fabricated imputations of the
appellant.
22. Learned counsel also took the plea that before the
Learned Trial Court no such issue was framed on this fabricated
ground leveled by the present appellant that the original plaintiff was
Bangladeshi National and even before the First Appellate Court no
such plea was taken. So, according to Learned counsel, just to divert
the mind of the Court this false plea has been taken by the appellant
and submitted that since the appellant is in connivance with revenue
staff managed to procure false/fabricated documents in his favour so
he should be punished and urged for dismissal of the appeal with
costs.
23. In course of hearing of argument, Learned counsel for the
respondent plaintiff relied upon one citation of Supreme Court of India
in R.V.E. Venkatachala Gounder versus Arulmigu
Viswesaraswami & V.P. Temple and Another reported in (2003)
8 SCC 752 wherein in para-33 of the said judgment, Hon'ble Apex
Court has observed as under:
"33. The offshoot of the above discussion is that no question
of law much less a substantial question of law arose in the
case worth being gone into the by the High Court in exercise
of its second appellate jurisdiction under Section 100 of the
CPC. The High Court was bound by the findings of fact
arrived at by the two courts below and should not have
entered into the exercise of re-appreciating and evaluating
the evidence. The findings of facts arrived at by the courts
below did not suffer from any perversity. There was no non-
reading or misreading of the evidence. A high degree of
preponderance of probability proving title to the suit
property was raised in favour of the appellant and the courts
below rightly concluded the burden of proof raised on the
plaintiff having been discharged while the onus shifting on
the defendant remaining undischarged. The judgment of the
High Court cannot be sustained and has to be set aside."
Referring the same, Learned counsel submitted that there
is no scope to re-appreciate or to evaluate the evidence on record at
this stage and Learned First Appellate Court after considering all
aspects rightly delivered the judgment in favour of the original
plaintiff i.e. the present respondent plaintiff. I have taken note of the
principle of the aforesaid judgment in deciding this case.
24. I have heard detailed argument of both the sides and
gone through the records of the Learned Court below. After going
through the records of the Learned Courts below it appears that
originally 2.34 acres of land was allotted in the name of the original
plaintiff Wahab Ali by the Government in the year 1981 and thereafter
Khatian was created in his name after final publication vide No.306,
Touzi No.5 showing land measuring 2.34 acres against old C.S.Plot
No.812(P) corresponding to R/S Plot No.769 land measuring 2 acres
and old C/S Plot No.1141(P) corresponding to R/S Plot No.740 land
measuring 0.34 acres, in total land measuring 2.34 acres. From the
said Khatian, it appears that in the relevant column No.24, there was
no adverse entry showing permissive or forceful possession of any
person, even the present appellant also. Thus, it can be inferred that
when the land was allotted and Khatian was finally published in the
year 1982 no other person was there over the total land measuring
2.34 acres except the respondent-plaintiff. Further, on perusal of the
gazette notification dated 01.06.1988 it also appears that from the
said Khatian No.306, 0.70 acres of land was acquired from Plot
No.769(P) for the purpose of construction of road along Tripura
Bangladesh border at Mouza Kamalasagar. It is the admitted position
that said Wahab Ali got compensation/award from the Government in
respect of acquisition of land measuring 0.70 acres of said Khatian
No.306 against C/S Plot No.769(P). After acquisition, it appeared that
land measuring 1.64 acres left in the name of said Wahab Ali, all
though, the Khatian was not rectified/corrected by the authority. In
this regard, I would like to mention herein below the relevant
provision of Section 43(2) of the TLR & LR Act which provides as
under :
"43(2). When all objections have been considered and
disposed of in accordance with the rules made in this behalf,
the survey officer shall cause the record to be finally
published in the prescribed manner."
25. During survey operation after exhausting so many
processes finally published Khatian was prepared. Apart from the
original plaintiff had there be any other person, even the appellant-
defendant also, in that case his/her name would definitely could be
reflected in the relevant column of possession by settlement authority
either as permissive possessor or as forceful possessor or the
settlement authority could pass appropriate order in accordance with
the law. But later on vide MR Case No.68/96 it appears that 1.30
acres of land was given allotment in favour of the appellant defendant
deducting from old Plot No.812(P) showing butted Plot No.76/1677.
The defendant appellant could not prove any allotment order on the
basis of which he got allotment from the Government. The alleged MR
Case bearing No.68/96 could not be produced or proved by the
defendant rather there is evidence on record that record of proceeding
was not available. Furthermore, from the order of District Collector
dated 30.06.2012 in Revenue Case No.21/12 it appears that he
opined that the said proceeding was manipulated one and SDM,
Bishalgarh also opined that the said document was fabricated, illegal
and it was liable to be cancelled. All though, the final order of the
Revenue proceeding could not be produced by either of the parties in
any of the forum even before this Court also. There is also no
evidence on record that the original plaintiff at any point of time
transferred or handed over possession of any land from the suit land
to the appellant defendant by way of any registered instruments. So,
it is crystal clear that the said purported Khatian No.580 in the name
of the defendant appellant was created by the concerned Revenue
authority without any basis most illegally beyond the knowledge of
original plaintiff or his successor i.e. the present respondent plaintiff
also. In this regard, I would like to mention herein below the
observation of the Division Bench of our High Court in Shri
Dhaneswar Debbarma versus The State of Tripura and Other
[judgment dated 15.06.2015 in Writ Appeal No.04 of 2015]
wherein in para-5 of the said judgment, this High Court has observed
as under :
"5. At the outset, we may notice that the land was allotted in
favour of the writ petitioner in the year 1988. Assuming that
there was any error in the allotment, such allotment should
have been challenged within a reasonable time. Allotments
cannot be set aside after expiry of reasonable period. What is
a reasonable period may depend on the facts of a particular
case but normally the reasonable period will not exceed 3
years at the most. It is only in cases where fraud is proved
that the period of limitation will start from the date of
discovery of the fraud. Otherwise within a reasonable period,
proceedings to cancel allotment must start. A person who is
allotted land develops the land by dint of his hand work. He
invests money and time on the land. After he has developed
the land the allotment cannot be set aside after two decades
on the ground that the objector had a better claim to the
land."
26. From the aforesaid observation, it appears that the
allotment once issued cannot be set aside after a reasonable period of
three years by the authority. Here in the given case the allotment was
given in the name of the original plaintiff in the year 1981 and Khatian
was finally published in the year 1982. But from Exbt.A it appears that
his allotment was cancelled by the Revenue authority in the year 1997
beyond the knowledge of the original plaintiff without any proceeding
and also without issuing any notice to the original plaintiff or his
successor which is totally illegal and in operative and not binding upon
the original plaintiff. The Learned Collector by order dated 30.06.2012
rightly observed that the defendant appellant got the same by
applying fraud without producing any valid documents. But the
Learned Trial Court below without considering the legal position of law
just on the basis of purported Khatian No.580 relied upon by the
appellant defendant came to the finding that the plaintiff had lacking
of title over the suit land which was not permissible as per law. So,
Learned First Appellate Court after considering all aspects was pleased
to reverse the judgment and decree of Learned Trial Court which in
my considered view Learned First Appellate Court rightly did so.
Furthermore, as alleged by the appellant defendant as already stated
that the original plaintiff was not a citizen of India, this contention
also could not be proved and there is also no scope to take any
adverse inference against the original plaintiff that he was a foreign
national in absence of any valid documentary evidence on record.
27. Learned counsels at the time of hearing of arguments
confined their arguments only regarding authenticity of the purported
Khatian No.580 standing in the name of the defendant appellant. All
though, the proceeding before the District Collector was still pending
but from the connected correspondences of the DCM, SDM and also in
view of the judgment of this High Court there is no scope to take any
positive views in favour of the defendant appellant. More so,
regarding the land of Kayemi Taluk as submitted by Learned counsel
for the appellant no such documentary evidence was led before any of
the forums that the defendant appellant was a sub-tenant or under
rayat under the original jotedar to substantiate his claim of possession
over the suit land, even no documentary evidence could be produced
and proved by the appellant to take any favourable views in his
favour. Thus, the substantial question of law as formulated stands in
favour of the respondent plaintiff of this appeal.
28. In the result, the appeal filed by the present appellant is
hereby dismissed on contest with costs.
The judgment dated 11.11.2019 sand decree dated
22.11.2019 and corrected decree dated 12.02.2020 in Title Appeal
No.35 of 2017 passed by Additional District Judge, Sepahijala,
Bishalgarh by setting aside the judgment and decree in connection
with case No.Title Suit 39 of 2014 delivered by Learned Civil Judge,
Senior Division, West Tripura, Agartala, Court No.2 is hereby upheld
and accordingly, it is affirmed. The plaintiff appellant is entitled to get
the decree in respect of the suit land as mentioned in the Schedule of
the plaint by evicting the defendant.
Prepare the decree.
Send down the LCRs forthwith.
JUDGE
Date: 2024.03.16 14:01:05 +05'30'
