Defendant vs Sri Moti Lal Saha
2024 Latest Caselaw 429 Tri

Tripura High Court

Defendant vs Sri Moti Lal Saha on 13 March, 2024

                   HIGH COURT OF TRIPURA
                         AGARTALA
                     RSA NO.17 of 2022

      Sri Harendra Kumar Das,
      S/o Lt. Upendra Kumar Das
      Resident of- Pashchim Charakbai (Madhyapara)
      P.S- Baikhora, District- South Tripura

                                 ......Defendant-Appellant
                       Versus

01. Sri Moti Lal Saha,
    S/o Lt. Jagabandhu Saha
    Resident of Pashchim Charakbai (Madhyapara)
    P.S.-Baikhora, District- South Tripura.


02. Smt. Chandana Saha (Baishnab)
    W/o Sri Ratan Baishnab
    Resident of Pashchim Charakbai (Madhyapara)
    P.S- Baikhora, District- South Tripura.
03.   Smt. Archana Saha (Paul),
      W/o Sri Badal Paul
      Resident of Pashchim Charakbai (Madhyapara)
      P.S- Baikhora, District- South Tripura.

                                 .....Plaintiff-Respondents

04. The State of Tripura, Represented by:-

District Magistrate & Collector, South Tripura Belonia, District- South Tripura.

05. The Sub-Divisional Magistrate, Santir Bazaar, South Tripura.

06. Sri Nimai Das, S/o Lt. Nani Das Resident of Pashchim Charakbai (Madhyapara) P.S- Baikhora, District- South Tripura.

07. Smt Santoshi Das, W/o Sri Nepal Das Resident of Pashchim Charakbai (Madhyapara) P.S- Baikhora, District- South Tripura

.....Defedant-Respondents

For Appellant(s) : Mr. D.R Chowdhury, Sr. Adv, Mr. S. Sarkar, Adv.

For Respondent(s) : Mr. S.M. Chakraborty, Sr. Adv, Ms. S. Deb (Gupta), Adv.

Date of Hearing       :     01.03.2024
Date of delivery of
Judgment and Order :        13.03.2024
Whether fit for
Reporting             :     YES

         HON‟BLE MR. JUSTICE BISWAJIT PALIT

                     Judgment & Order

The appellant Harendra Kumar Das, by means of

this appeal has challenged the judgment and decree dated

16.02.2022 delivered by Learned District Judge, South

Tripura, Belonia in connection with Title Appeal No. 11 of

2016 whereby the Learned First Appellate Court has affirmed

the judgment dated 07.05.2016 and decree dated

27.05.2016 delivered by Learned Civil Judge, Junior Division,

Belonia in connection with case No. T.S. 16 of 2011.

02. Heard Learned Senior Counsel, Mr. D.R.

Choudhury assisted by Learned Counsel Mr. S. Sarkar for the

appellant-defendant and also heard Learned Senior Counsel

S.M. Chakraborty assisted by Smt. Sujata Deb (Gupta) for

the respondent-plaintiffs. None appeared on behalf of the

rest defendant-respondents i.e. the State.

03. Before entering into the merit of the case, let us

discuss about the subject matter of the dispute amongst the

parties for which the suit was filed. The respondent-plaintiffs

filed one suit before the Court of Learned Civil Judge, Junior

Division, Belonia, South Tripura which was numbered as T.S.

16 of 2011 seeking a decree for declaration of title of the

plaintiffs over the suit land and along with recovery of

possession over the suit land with further declaration that

the order dated 27.02.2010 passed by SDM, Santirbazar,

cancelling the order of allotment of the suit land in the name

of respondent-plaintiffs as void and illegal. The total suit land

comprised land measuring 0.16 acres as mentioned in

Schedule-B of the plaint. According to the respondent-

plaintiffs, the predecessor of the respondent-plaintiffs,

Jagabandhu Saha got allotment of land measuring 0.20 acres

of land and land measuring 2 acres on 31.07.1973 and

15.03.1974 respectively as per Section 14(1) of TLR & LR Act

and the TLR & LR (Allotment of Land) Rules, 1962 from the

Government. The said allotment was given with condition

that the allottee will not transfer any portion of the allotted

land within 10 years from the date of allotment. After the

allotment 0.20 acres of allotted land was recorded in Khatian

No. 918 comprising Old C.S. Plot No. 1521 and 1522/2383

and another 2 acres of land was recorded in Khatian No. 944

comprising Old C.S. Plot No. 1522/2384 in the name of the

predecessor of the respondent-plaintiffs. Thereafter, on

expiry of 10 years, from the date of allotment, said

Jagabandhu Saha (since dead) sold 1.63 acres of land out of

the aforesaid land and rest land measuring 0.57 acres of

land remained with him. After the death of said Jagabandhu

Saha, the present respondent-plaintiffs and their mother

Late Ashubala Saha, being the legal heirs of late Jagabandhu

Saha became the owner of the suit land and during resurvey

operation the name of the respondent-plaintiffs and their

mother was recorded in Khatian No.937 for land measuring

0.57 acres as joint possessors. In the middle part of

December, 1987, the defendant No.3 of the main suit was

given permission to possess 8 gandas of land i.e. 0.16 acres

of the suit land as mentioned in Schedule-B of the plaint and

later on, during resurvey operation, the name of Nani Das

was mentioned in column No. 16 of the said Khatian as a

permissive possessor and since then, the suit land as

mentioned in Schedule-B was under his peaceful possession.

But thereafter, in the year 2004, said Nani Das without any

authority handed over the possession of the said land i.e. the

suit land to the present appellant-defendant, Harendra

Kumar Das. The respondent-plaintiffs requested said Nani

Das and Harendra Kumar Das to hand over the possession of

the suit land to the respondent-plaintiffs but they did not pay

any heed to their request. Thereafter, the appellant-

defendant made an application to the D.M. & Collector, South

Tripura, Udaipur for cancellation of allotment of the suit land

and the SDM, Santirbazar drew up of a revenue proceeding

and on 27.02.2010, the SDM, Santirbazar cancelled the

allotment order of Jagabandhu Saha/Respondent plaintiffs in

respect of the suit land as mentioned in Schedule-B of the

plaint i.e. 0.16 acres in respect of Plot No. 1552(P)

corresponding to resurvey Plot No. 3878 and Khatian No.

937 with an observation that the appellant-defendant has

been possessing the land for the last 45 years and on the

basis of enquiry report of Tahashildar Belonia, TK. After that,

the respondent-plaintiffs had sent a legal notice to DM &

Collector, South Tripura, Udaipur and SDM, Santirbazar but

inspite of receiving notice they did not take any steps.

04. Hence, the respondent-plaintiffs filed the suit

before the Learned Trial Court. The appellant-defendant

contested the suit by filing written statement denying the

claim of the respondent-plaintiffs and submitted that

although 0.16 acres of land was recorded in the name of

respondent-plaintiffs even though the said land was under

possession of said Nimai Das and Smt. Santoshi Das i.e. the

defendant Nos. 3(A) and 3(B) of the main suit and the

present appellant-defendant prior to allotment of land to the

respondent-plaintiffs. According to them, since the

respondent-plaintiffs were not in possession of the suit land

at any time, so, the SDM, Santirbazar rightly cancelled the

allotment of the suit land as mentioned in Schedule-B of the

plaint.

05. Upon the pleadings of the parties, Learned Trial

Court (Civil Judge, Junior Division, Belonia, South Tripura)

framed the following issues:

Issues

1) Whether the suit is maintainable in its present form and nature?

2) Whether the plaintiffs are the joint owners over the B schedule of the plaint as mentioned in the plaint?

3) Whether the order passed by the SDM Shantirbazar in Revenue Case No.

09/09 dated 27.02.2010 is liable to be declared as illegal and void?

4) Whether the plaintiffs are entitled to get a decree of recovery of possession by evicting the defendant Nos 3 and 4 from the „B‟ schedule of the land as mentioned in the plaint?

5) Whether the plaintiffs are entitled to get any other relief or reliefs, as prayed for?

06. To substantiate the issues, both the parties have

adduced oral/documentary evidence on record:

A) Plaintiffs‟ Witnesses:-

PW-1 Sri Matilal Saha

PW-2 Sri Umesh Sutradhar

PW-3 Sri Ratan Das Baishnab

B) Plaintiffs‟ Exhibits:-

under Mouja-West Charakbai (Exhibit

1),

ii) Khatian No. 918 under Mouja-West Charakbai (Exhibit 2),

iii) Certified Copy of finally published Khatian no-937 under Mouja-West Charakbai (Exhibit 3),

iv) Postal receipt and acknowledgement there on in respect to notice u.s 80 (1) of CPC (Exhibit 4 series).

C) Defendants‟ Witnesses:-

DW-1 Sri Harendra Kr Das

DW-2 Sri Gopal Krishna Debnath

DW-3 Sri Subhash Kuri Reang

DW-3A Sri Nemai Das Banik

DW-4 Sri Shiba Prasad

D) Defendants‟ Exhibits:-

i) True copy of registered partition deed (Exhibit D-1 series, 5 sheets)

ii) Certified copy of Khatian No. 937, Exbt. D-2

iii) Certified copy of sale deed bearing no 1-670 (Exbt D-3Series 4 sheets)

iv) Certified copy of sale deed bearing no 1-221 (Exbt D-4Series, 4 sheets)

v) Certified copy of application dated 13.07.2006 (Exbt D-5 Series, 2 sheets)

vi) True copy of map (Exbt D-6)

vii) True copy of map (Exbt D- 7Series, 1 sheet)

Viii) Original copy of show cause notice (Exbt D-8 Series, 2 sheets)

ix) Original copy of allotment (Exbt D-

9 Series, 2 sheets)

x) Original copy of allotment order (Exbt D-10)

xi) Original copy of inquiry report (Exbt D-11 Series, 2 sheets)

xii) Original copy of inquiry report (Exbt D-12 Series, 2 sheets)

xiii) Certified copy of Khatian no 628/1, 628/2, 1243 (Exbt D-13 Series, 2 sheets)

xiv) Certified copy of Khatian no 1/81 (Exbt D-14)

xv) Certified copy of order dated 27.02.2010 and 31.07.2010 (Exbt D-

15 Series, 4 sheets)

xvi) Original copy of notice in revenue proceeding (Exbt D-16 Series, 2 sheets)

xvii) True copy of Sabek Khatian bearing No. 396, 457 and 272 (Exbt D-

17 Series, 3 sheets)

07. Finally, on conclusion of trial and after hearing

arguments of the parties, Learned Court below by judgment

dated 07.05.2016 decreed the suit in favour of the

respondent-plaintiffs. For the sake of convenience, the

operative portion of the order of Learned Trial Court runs as

follows:

                           "In view of my decisions          on   the
                           aforesaid issues the suit         of   the
                           plaintiffs is hereby decreed.

It is hereby declared that the plaintiffs are the joint owners over the land specified B schedule of the plaint.

It is also declared that the order passed by the Ld SDM Shantirbazar in Revenue Case No. 09/2009, dated

27.02.2010 is illegal, void and inoperative.

The defendant No 3 and 4, their men and agents are hereby directed to hand over the possession of the suit land to the plaintiffs.

With the aforesaid orders, this case is disposed of on contest.

Prepare a decree accordingly and place before me for signature within 15 days from today."

08. Challenging that judgment, the present

defendant-appellant preferred an appeal before the Court of

Learned District Judge, South Tripura, Belonia which was

numbered as Title Appeal No.11 of 2016 and the Learned

First Appellate Court, after hearing arguments of both the

sides, by judgment dated 16.02.2022 dismissed the appeal

filed by the appellant. The operative portion of the judgment

of the Learned First Appellate Court runs as follows:

"In the result, I find no merit in the appeal to interfere with the judgment and decree passed by the learned trial Court in Case No. T.S. 16 of 2011. Therefore, the appeal merits rejection which I hereby do.

Prepare appellate decree accordingly.

                            The case     is    thus   disposed       of   on
                            contest."

09. Challenging that judgment of the Learned First

Appellate Court, the appellant-defendant has preferred this

appeal under Section 100 of CPC before the High Court. At

the time of admission of the appeal, vide order dated

18.04.2022 the following substantial question of law was

framed:

I. Whether the Ld‟ courts below without proper appreciation of the Exbt. D-11 the field verification report

of the Revenue Inspector and the order of cancellation of the allotment in question in the name of the Plantiff- Respondents by the SDM, Santir Bazaar, Belonia, South Tripura District, Exbt. D-16 passed the judgment and decree in favour of the Plaintiff- Respondents?

II. Whether the judgment and decree passed by the Ld‟ Courts below are perverse?

10. At the time of hearing of argument, Learned

Senior Counsel for the appellant, Mr. D.R. Choudhury

assisted by Learned Counsel Mr. S. Sarkar drawn the

attention of the Court that the respondent-plaintiffs did

never possess the suit land at any point of time rather it was

under peaceful possession of one Nani Das and thereafter,

the present appellant-defendant and for that on the basis of

his prayer, the SDM, Santirbaazar rightly cancelled the

allotment order illegally granted in favour of the respondent-

plaintiffs. But the Learned Courts below did not consider the

same and most arbitrarily misinterpreted the judgment of

this High Court delivered in connection with case no. W.A.

No.4 of 2015 and cancelled the order of SDM, Santirbazar

without any basis for which the interference of the Court is

required.

Learned Senior Counsel also referred the para no.

5 of the said judgment and submitted that by the said

judgment this High Court considered the period of „3‟ years

but that 3 years would be counted from the date of

knowledge. Because according to Learned Senior Counsel,

the defendant-appellant and Sri Nani Das had no knowledge

that the suit land as mentioned in Schedule-B of the plaint

was allotted in the name of the respondent-plaintiffs and

when the matter came to his knowledge, immediately, he

sought redress before the Revenue Authority and the

Revenue Authority after physical verification found that the

suit land was under peaceful possession of the appellant-

defendant since last 45 years and cancelled the order of

allotment granted in favour of the respondent-plaintiffs. He

also referred another judgment of the Hon‟ble Andhra

Pradesh High Court reported in AIR (1995) AP 23 and AIR

(2009) SC 3115 and further referred the provision of

Section 14 and 15 of TLR and LR Act, 1960 and finally,

submitted that by the said impugned judgment, the lawful

title of the defendant-appellant has been cancelled by the

Learned Trial Court and finally urged for setting aside the

judgment passed by Learned First Appellate Court.

11. On the contrary, Learned Senior Counsel for the

respondents, Mr. S.M. Chakraborty, assisted by Learned

Counsel Ms. S. Deb(Gupta) submitted before the Court that

both the Courts below, after considering the evidence on

record decreed the suit in favour of the respondent-plaintiffs

and Learned Senior Counsel submitted that the suit land as

mentioned in Schedule-B was under the possession of the of

the respondent-plaintiffs and their predecessor Jagabandhu

Saha since long back beyond the statutory period of

limitation and finding the predecessor of the respondent-

plaintiffs in possession, the Revenue Authority vide allotment

order dated 15.03.1974 allotted land measuring 2 acres in

favour of the predecessor of the respondent-plaintiffs and

also vide allotment order dated 31.07.1973 allotted land

measuring 0.20 acres in favour of the predecessor of the

respondent-plaintiffs.

Learned Senior Counsel also submitted that had

the defendant-appellant or said Nani Das be in possession of

the suit land as mentioned in Schedule-B, in that case, either

the name of said Nani Das or the present defendant-

appellant definitely could be reflected in relevant column of

the respective Khatian Nos. 944 and 918. So, it is crystal

clear that on those lands excepting Sri Jagabandhu Saha,

during his life time no other person/persons have/had any

possession over the same which reveals from Exhibit-1 and

2. Learned Senior Counsel further submitted that the

respondent-plaintiffs in their plaint admitted that said

Jagabandhu Saha during his life time transferred land

measuring 1.63 acres of land from his allotted land keeping

the rest land measuring 0.57 acres with him. And after his

death, vide mutation proceeding No.MR 20080049 the said

land measuring 0.57 acres was recorded in the name of the

respondent-plaintiffs and their mother in Khatian No.937.

12. Learned Senior Counsel further submitted that the

respondent-plaintiffs in their plaint also mentioned that in

the year 1987 they gave permission to one Nani Das

(defendant No.3 of the main suit) to posses land measuring

0.16 acres (8 Gandas) i.e. the suit land as mentioned in

Schedule-B of the plaint for the purpose of utilization for

which his name was reflected in Khatian No.937 in the

respective column of possession against Old C.S. Plot

No.1522(P) corresponding to Revisional C.S. Plot No.3878 as

permissive possessor. But later on, said Nani das, in the year

2004 without any authority handed over the possession of

the suit land as mentioned in Schedule-B of the plaint to the

present defendant-appellant and after that he could manage

the survey staff and obtained a concocted report of

possession over the suit land and on the basis of which SDM,

Santirbaazar cancelled the allotment of the suit land most

arbitrarily and illegally as because according to Learned

Senior Counsel, the SDM, Santirbaazar had no authority to

cancel the order of allotment granted to the predecessor of

the respondent-plaintiffs or the present respondent-plaintiffs

in view of Rule 15 of TLR and LR (Allotment of Land) Rules

1980. Furthermore, according to Learned Senior Counsel,

prior to given permission to said Nani Das, in the middle part

of December, 1987, he never possessed the suit land and he

only came to posses the suit land as a permissive possessor

from the month of December, 1987 and thereafter, he

handed over the possession to defendant No.4, i.e. the

present appellant without any authority and managed to

obtain order in his favour for which Learned Trial Court below

rightly decreed the suit in favour of the respondent-plaintiffs

cancelling the order of SDM, Santirbaazar dated 31.07.2010

in Revenue Case No.9 of 2009.

Learned Senior Counsel further submitted that the

judgment of the Division Bench of this High Court passed in

W.A. No.4 of 2015 (supra), the limitation period of 3 years

was rightly mentioned and the Learned Court below in view

of the principle of the said judgment decreed the suit in

favour of the respondent-plaintiffs and finally submitted that

the substantial questions of law in this case stands in favour

of the respondent-plaintiffs and urged for dismissal of this

appeal with costs confirming the judgment and decree of the

Learned First Appellate Court.

13. I have heard detailed arguments of Learned

Counsel of both the sides and gone through the records of

the Learned Court below. Admittedly, both the Learned

Courts below gave concurrent findings and decreed the suit

in favour of the respondent-plaintiffs. The respondent-

plaintiffs filed the suit before the Court of Learned Civil

Judge, Junior Division seeking decree of declaration of title of

plaintiffs over the suit land as mentioned in Schedule-B of

the plaint along with recovery of possession with further

declaration that the order dated 27.02.2010 passed by SDM,

Santirbaazar, cancelling the order of allotment in the name

of respondent-plaintiffs as void and illegal.

14. Their case was that originally their predecessor

Jagabandhu Saha got allotment of land measuring 2 acres on

15.03.1974 and also got allotment of land measuring 0.20

acres on 31.07.1973 as per the TLR and LR Act and its

connected allotment rurles and after the allotment ROR was

prepared in the name of their predecessors. Then after

expiry of 10 years, their predecessors sold land measuring

1.63 acres of land out of the entire land keeping land

measuring 0.57 acres with him and after his death, the

respondent-plaintiffs got their land mutated in their favour.

It was also the case of the respondent-plaintiffs that in the

middle part of December, 1987, they allowed defendant No.3

to possess 8 gandas of land as permissive possessor who

thereafter in the year 1994, without any authority handed

over possession to defendant No.4 i.e. the present appellant.

Then the respondent-plaintiffs requested said Nani Das and

Harendra Das i.e. the appellant to hand over possession but

they did not respond rather made an application to D.M. and

Collector for cancellation of allotment and on the basis of his

prayer, the matter was enquired into and a revenue

proceeding was drawn up and SDM, Santirbaazar by order

dated 27.02.2010 cancelled the allotment of the land as

mentioned in Schedule-2. After that the respondent-plaintiffs

filed the suit. Before the Learned Trial Court, both the parties

have adduced their oral/documentary evidence on record.

From the side of respondent-plaintiffs three witnesses were

adduced and from the side of defendant-appellant five

numbers of witnesses were adduced.

15. PW1, Matilal Saha is one of the plaintiffs of the

original suit. He in his examination-in-chief in affidavit

submitted his version in the plaint and relied upon the

documentary evidence. In course of cross-examination by

the defendant Nos. 1 and 2, he admitted that Harendra

Kumar Das filed a case before the Revenue Court for

cancellation of the allotment order of the suit land and as per

order of that Court one enquiry was held and thereafter,

allotment was cancelled. During cross-examination by

defendant Nos.3(A) and 3(B), he submitted that on the basis

of prayer of Harendra Kumar Das, allotment was cancelled

and he did not prefer any appeal challenging that order.

During cross-examination by PW4, he stated that they sold

some portion of land from the land which was allotted in the

name of their father and further stated that the suit land was

partitioned between him and other plaintiffs by a registered

deed. Nothing more came out relevant. Similarly, PW2

Umesh Sutradhar in his examination-in-chief tried to support

the version of the respondent-plaintiffs in the plaint. During

cross-examination by defendant Nos.1 and 2, he stated that

he cannot say the Dag Number, Khatian Number and the

boundary of the suit land. During cross-examination by

defendant Nos.3 and 4, he submitted that the father of the

defendant Nos.3(A) and 3(B) namely, Nani Gopal Das

expired in the year 1978. PW3 Ratan Das Baishnab in his

examination-in-chief in affidavit supported the case of the

respondent-plaintiff. During cross-examination by defendant

Nos.1, 2 and 3, nothing came out relevant. During cross-

examination by defendant No.4, he stated that he was

unable to say the dag number and Khatian Number of the

suit land.

16. The appellant-defendant adduced few witnesses.

The appellant as DW1 submitted his examination-in-chief

before the Court and relied upon some documentary

evidence. During cross-examination by the respondent-

plaintiffs, he stated that in Khatian No.937, nowhere his

name was recorded as permissive possessor or forceful

possessor. He also could not say as to whether his father

raised any objection against the allotment order of land

under Khatian No.937 or not. DW2 Gopal Krishna Debnath

submitted his examination-in-chief in affidavit. He tried to

support the case of the appellant-defendant. During cross-

examination by the respondent-plaintiffs, he stated that the

Khatian Number of the suit land is 937 and Plot No. is 3878,

but he could not say in whose name Khatian was issued.

Similarly, DW3, Subhash Kuri also deposed in the same

manner. During cross-examination, he reiterated the same

fact as stated by DW2. DW4 Shiba Prasad Banik also

deposed in the same manner. DW 3A Nimai Das also tried to

support the case of the defendant-appellant and he is the

defendant No.3A of the suit. But during cross-examination,

he stated that the suit land is not under his possession and

he could not say the dag number and Khatian number where

his father constructed hut. These are the synopsis of the

evidence on record.

17. I have perused Exhibit-1 and 2 i.e. the certified

copy of Khatian No.944 and 918 standing in the name of the

predecessor of the respondent-plaintiffs. From the said

documents it appears that 2 acres of land was recorded in

the name of Jagabandhu Saha vide allotment order No.8/74

dated 15.03.1974 and 0.20 acres of land was recorded in the

name of said Jagabandhu Saha vide allotment order

No.177/73 dated 31.07.1973 in Khatian No.918. In both the

Khatians, nowhere I find the name of appellant-defendant or

Nimai Das as possessor in the respective column of

possession. Had said Nani Das or the present appellant or his

father could utilize any plot of land in the aforesaid lands, in

that case definitely their names could have reflected in the

relevant column of possession either as permissive possessor

or as forceful possessor. So, the contention of the appellant-

defendant that they are using the land since last 45 years

cannot be legally accepted as lawful and as per TLR and LR

Act before preparation of finally published Khatian, so many

stages are being followed and after exhausting of all the

processes Khatians are being prepared in final shape. There

is no evidence on record from the side of the appellant-

defendant that prior to 1973, the appellant-defendant or his

predecessor had ever possessed any portion of aforesaid

land measuring 2 acres or 0.20 acres and on any portion of

suit land i.e. land measuring 0.20 acres. Even there is no

evidence on record that prior to allotment of the suit land

along with other lands in favour of the predecessor of the

respondent-plaintiffs, the defendant appellant or his

predecessor or said Nani Das ever made any attempt to get

allotment of the same.

18. In this regard, I would like to mention herein

below the relevant provisions of Section 43(2) and Section

43(3) of TLR and 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."

"43(3)Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct."

19. In course of hearing, Learned Senior Counsel for

the appellant submitted that the appellant had no

information about the allotment of the suit land in favour of

the predecessor of the respondent-plaintiffs and subsequent

mutation of their name in Exhibit-3 and when it came to his

knowledge, immediately, he filed a petition before the

District Collector, South Tripura for cancellation of allotment

of the suit land. Accordingly, a revenue proceeding was

drawn up and SDM, Santirbazar rightly cancelled the order of

allotment in the name of the respondent-plaintiffs or their

predecessor. He further submitted that on careful scrutiny of

the judgment of the High Court, it appears that there was no

embargo to file a petition after gathering information of

allotment of land which the appellant did in the present case.

20. In course of hearing, Learned Senior Counsel

referred one citation of AIR (1985) AP 23 in Para No. 4 of

the judgment, the Hon‟ble High Court of Andhra Pradesh

observed as under:

"4.**************************** Therefore the Court would not adopt unduly rigid or overstrict view in construing whether sufficient cause has been established or not. The Court also should not readily accept the submissions made, but has to scrutinize each case on the facts whether sufficient cause has been established or not. In this case, admittedly intimation was given on the last day of the 90th day from the date of death of the deceased defendant. Obviously he wants to avail of full period of limitation prescribed to see that the application is filed beyond 90 days. It should also be noted that the details of legal representatives have not been given. In this case on the above facts, admittedly a report was submitted to the petitioner on 15-9-76 informing the names of the proposed respondent to be the L.Rs. entitled to represent the estate of the deceased proprietor of the first defendant firm. On the next day i.e., on 16-9-76 an application to that effect has been filed. I am satisfied on the facts in this case that the petitioner has established sufficient cause for not bringing the L.Rs. on record within the prescribed period of limitation."

The lower Court did not approach the problem from the above perspective and thereby committed material irregularity in exercise of the powers conferred under S.5 of the Limitation Act. Accordingly, C.R.P. No. 781/83 is allowed and the delay mseeking to set aside abatement to bring the legal representatives of deceased defendant on record is condoned. Consequently I.A. No. 340/77 is allowed and the abatement is set aside. Hence C.R.P. No. 1497/82 is allowed. Accordingly, I.A. No. 959/76 and C.R.P. No. 2231/82 are also allowed and the lower Court is directed to bring the proposed respondents as L.Rs. of the deceased proprietor of the defendant

and proceed with the trial of the suit according to law, subject to the petitioner paying a sum of Rs. 250/-

to Sri G. Krishna Murty, learned counsel appearing for the respondent.

This amount has to be paid on or before 13th June 1983 and if the amount is not paid, the C.R.Ps. shall stand dismissed. There will be no order as to costs."

21. Referring the same, Learned Senior Counsel

submitted that when the matter came to the knowledge of

the defendant-appellant, so, immediately he sought redress.

So, according to Learned Senior Counsel, limitation was not

a bar against the appellant to sought redress before the

Collector in time. Learned Senior Counsel further referred

another citation of this High Court reported in (2015) 2 TLR

661 in Para No.5 of W.A. 4 of 2015, this High Court

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."

22. Learned Senior Counsel submitted that although

the Learned Courts below relied upon the said judgment, but

if the principle of the aforesaid judgment is meticulously

scrutinized, it would be observed that there was no default

on the part of the appellant to seek redress to the Revenue

Authority in time. Learned Senior Counsel also relied upon

another judgment of the Hon‟ble Apex Court reported in AIR

(2009) SC 3115 in Para No.35 observed as under:

"35. Regarding the limitation, the High Court observed as under:-

"Undisputedly, the period of limitation prescribed under the law for such a suit is three years from the date the cause of action accrued to the plaintiff. It has been averred by the plaintiff in para 9 of his plaint, as to cause of action, as under:-

"that the cause of action has arisen on 31.10.87 from death on 20.2.88 from mutation and on various other dates from the knowledge of the illegalities and wrongful actions of Village Jabal Jamrot Pargana Haripur Teh. and Distt. Solan within the jurisdiction of this Court, hence this matter has jurisdiction in the matter."

23. Finally, Learned Senior Counsel submitted that

there was no error in the order passed by SDM, Santirbazaar

in Revenue Case No.9 of 2009 and lastly, Learned Senior

Counsel submitted that since both the Courts below have

misinterpreted the judgment of the High Court as mentioned

above, so, the judgments of the Learned Courts below

cannot sustain in the eye of law and prayed for setting aside

the judgment of the Learned First Appellate Court. Here I

would like to mention herein below the relevant provision of

Section 14 and 15 of TLR Act.

Section 14 of TLR Act

14. Allotment of land.

(1)The Collector may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rules as may be made in this behalf under this Act; and such rules may provide for allotment of land to persons evicted under section 15.

(2)The [State Government] shall have power-

(a)to allot any such land for the purpose of an industry or for any purpose of public utility on such conditions as may be prescribed, or

(b)to entrust the management of any such land or any rights therein to the gram panchayat of the village established under any law for the time being in force.

(3) The rules under sub-sections (1) and (2) allotment of land shall provide for giving preference to the members of the co-operative farming societies formed by marginal farmers, landless agricultural labourers, jumias and members of the Schedules Tribes and Scheduled Castes in allotting land.

Section 15 of TLR Act

15. Unauthorised occupation of land.

(1)Any person who occupies or continues to occupy any land belonging to Government without lawful authority shall be regarded as a trespasser and may be summarily evicted therefrom by the competent authority and any building or other construction erected or anything deposited on such land, if not removed within such reasonable time as such authority may from time to time fix for the purpose, shall be liable to be forfeited to the Government and to be disposed of in such manner as the competent authority may direct:

Provided that the competent authority may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof.

(2)Such trespasser shall also be liable by way of penalty to pay a sum which may extend to six times the annual assessment on such land as may be specified by the competent authority and such sum shall be

recoverable in the same manner as an arrear of land revenue.

(3)Upon payment of the penalty referred to in sub-section (2), the trespasser shall have the right of tending, gathering and removing any ungathered crops.

From the aforesaid provisions, it appears as to

how allotment of land is given to any person under the TLR

and LR Act and what procedure is to be followed for

unauthorized occupants of the Government land. From the

records, it appears that till 1973 to 2010, the appellant

defendant could not show any document in respect of his

possession over the suit land save and except the entry of

his possession as "permissive possessor" in Khatian No.937.

Now, if we see the evidence of the respondent-plaintiffs, it

appears that in the middle part of 1997, they allowed said

Nani Das to possess the suit land as permissive possessor

but later on, said Nani Das beyond their knowledge and

without any authority handed over possession of the suit

land to the present appellant.

24. In course of hearing of argument, Learned Senior

Counsel for the respondent-plaintiffs has drawn the attention

of the Court, Rule 15 of the Tripura Land Revenue and Land

Reforms Allotment Rules, 1980 wherein it provides as under:

"Nothing in these rules shall affect any previous order of allotment passed and any right, privilege, obligation or liability acquired, accrued or incurred under the Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1962."

25. Referring the same, Learned Senior Counsel

submitted that in view of the aforesaid rule there was no

scope on the part of SDM, Santirbazaar to illegally cancel the

order of allotment in respect of the suit land in favour of the

appellant-defendant. According to Learned Senior Counsel,

both the Courts below in view of the judgment of the Division

Bench of the High Court, rightly decreed the suit in favour of

the respondent-plaintiffs and the aforesaid rule of 1980

clearly bars the cancellation of allotment, by the Government

to any person, if issued, in view of the earlier allotment rules

of 1962.

26. In Civil Rule No.64 of 1989 dated 02.11.1995

reported in (1996) 2 GLR 27, the then Agartala Bench of

Gauhati High Court in para no.5 Hon‟ble the Gauhati High

Court observed as under:

"5. ************************** A plain reading of the aforesaid Rule- 12 of the 1980 Rules makes it clear that an allotment of land made under Section(1) of Section-14 of the 1960 Act and in accordance with the 1980 Rules only would be subject to the conditions specified in Rules-12 of the 1980 Rules. Accordingly an allotment of land under Section(1) of Section-14 of the 1960 Act made in accordance with the 1962 Rules would not be subject to the conditions specified in Rule-12 of the 1980 Rules. This conclusion is further reinforced by the fact that in Rule-15 of the 1980 Rules, orders of allotment under the 1962 Rules have been expressly saved from the operation of the 1980 Rules and it has been stated therein that any rights, privilege, obligation or liability acquired, accrued or incurred under the 1962 Rules shall not be affected by the 1980 Rules. This being the position of law, I am of the considered opinion that the Sub-Divisional Officer, Amarpur could not resort to the provisions of Rule 12 of the 1980 Rules to cancel the allotment of land made in favour of the petitioner under the 1962 Rules. Thus the impugned order dated 3.2.89 of the Sub- Divisional Officer, Amarpur, South Tripura directing issue of notice to the petitioner to show cause as to why the

allotment of the aforesaid land made in favour of the petitioner under the 1962 Rules shall not be cancelled under Rule 12 of the 1980 Rules and the impugned show cause notice dated 3.2.89 issued pursuant to the impugned order are without jurisdiction and are liable to be quashed."

27. From the above citation, it appears that allotment

of land given under Rule 1962 cannot be cancelled by

invoking the rule made under Tripura Land Revenue and

Land Reforms (Allotment of Land) Rules 1980 in view of the

bar provided in Rule 15. The allotment of land in favour of

the predecessor of the respondent-plaintiff, Jagabandhu

Saha was made by the Government in the year 1973 and

1974 in view of the Allotment of Land Rules 1962 as existed

that time but the Revenue Authority i.e. SDM, Santirbazar

vide order dated 27.02.2010 in Revenue case No.9 of 2009

most illegally cancelled the allotment order of the suit land

ignoring the bar provided in Rule 15 of the Tripura Land

Revenue and Land Reforms (Allotment of Land) Rules 1980.

So, in my considered view the Learned First Appellate Court

rightly upheld the order of the Learned Trial Court below

because from the pleadings of the parties and also from the

oral and documentary evidence on record of the parties and

also from the judgment of the Learned Courts below, it

appears that the defendant-appellant or his predecessor or

Nani Das who was arrayed as defendant No.3 of the original

suit never have/had any lawful right, title and interest over

the suit land rather Nani Das in the year 1987, came to

possess the suit land as permissive possessor and thereafter,

he most illegally handed over possession of the suit land to

the present defendant-appellant and on the basis of an

imaginary and concocted report, SDM, Santirbazaar most

arbitrarily and illegally cancelled the order of allotment of the

suit land in favour of the appellant-defendant by order dated

31.07.2010. Accordingly, the substantial questions of law

formulated are answered in affirmative in favour of the

respondent-plaintiffs.

28. In the result, the appeal filed by the present

appellant-defendant stands dismissed on contest with costs

being devoid of merit. The judgment and decree dated

16.02.2022 delivered by Learned District Judge, South

Tripura, Belonia in connection with Title Appeal No. 11 of

2016 whereby the Learned First Appellate Court affirmed the

judgment dated 07.05.2016 and decree dated 27.05.2016

delivered by Learned Civil Judge, Junior Division, Belonia in

connection with case No. T.S. 16 of 2011 is hereby affirmed

and accordingly it is upheld.

Pending application(s), if any, also stands

disposed of.

Prepare decree accordingly and send down the

LCRs.

JUDGE

SABYASACHI SABYASACHI BHATTACHARJEE BHATTACHARJEE Date: 2024.03.15 15:37:30 +05'30' Purnita