Tripura High Court

Chandan Debbarma vs Shri Malin Debbarma on 17 May, 2024

                HIGH COURT OF TRIPURA
                      AGARTALA
                    RSA No.34 of 2022

1. Chandan Debbarma,
S/O Lt. Hari Mohan Debbarma, R/o- Shibnagar,
P.O- Shibnagar, PS & Sub-Division- Bishalgarh,
District-West Tripura, Age-68 years.
(Presently Dist. Sepahijala Tripura).

2. Subodh Debbarma,
S/O Lt. Hari Mohan Debbarma, of Krishnagar,
Near the residence of Lt. Dhiraj Guha, Advocate,
Pragati School Road, P.S.- West Agartala,
District- West Tripura, Age-64 years.
                                      ........The Appellants
                           Versus

1. Shri Malin Debbarma,
S/O Lt. Dhananjoy Debbarma, of village & PO. K.K. Nagar,
P.S & Sub-Division-Bishalgarh, District-West Tripura.
(Presently Dist. Sepahijala Tripura), Age-63 years.
2. Smt. Arati Bala Debbarma,
W/O Lt. Phani Bhusan Debbarma, Age-60 Years.
3. Shri Pinku @ Tinku Debbarma,
S/o Lt. Phani Bhusan Debbarma, Age-35 years.
Both are resident of Vill & PO-Shibnagar, P.S. & Sub-
Division-Bishalgarh, District-West Tripura, (Presently Dist.
Sepahijala Tripura).
4. Shri Rabindra Das,
S/o Lt. Chandra Kumar Das, Age-50 years.

5. Smt. Ratna Das,
W/o Lt. Manta Das, Age-45 years.
Both are resident of Vill & PO. Veluachar, PS. Boxanagar,
District-West Tripura. (Presently Dist. Sepahijala Tripura)
6. Smt. Rita Debbarma,
W/O Lt. Hiralal Debbarma, of Badharghat, near Keshab
Sangha,
P.S- Amtali, District- West Tripura, Age-40 years.
As per the order dated 01.11.2022, passed in I.A.04 of 2022
substitution of respondent No.7 has been made as follows:-

7. Smt. Jayasree Das, W/O- Sri Goutam Deb, D/O- Late Dipali Das & Late Subhash Das, Resident of Village-Champamura, P.S.- Bishalgarh, Dist.- Sepahijala, Tripura, Age-22 years.

8. Smt. Sefali Datta, W/O Sri Dwipen Datta, of Kanania, PO. Debipur, P.S. Bishalgarh, District- West Tripura. (Presently District- Sepahijala Tripura), Age-43 years.

9. Smt Marani Sarkar, W/O Sri Jishnu Sarkar, of Daragabari, Sekerkote, PS. Amtali, District-West Tripura, Age-40 years.

10. Shri Kshitish Chowdhury, S/O Lt. Laxmi Kanta Chowdhury, of Gakulnagar, P.S. Bishalgarh, District- West Tripura. (Presently Dist. Sepahijala Tripura), Age-67 years.

11. Smt. Archana Laskar, W/O Sri Nandalal Laskar, of Veluarchar, P.S. Kalamchoura, District-West Tripura. (Presently Dist. Sepahijala Tripura), Age-45 years.

As per the Hon‟ble Court order dated 09.03.2023 passed in I.A.05 of 2023 necessary correction has been made as follows:

12. Smt Khela Rani Debbarma, W/O Sri Santi Ranjan Saha of vill-Gopinagar, Golaghati P.S.- Bishalgarh, Dist- West Tripura.

(Presently Dist. Sepahijala Tripura), Age-44 years.

13. Shri Samir Debbarma, Age-49 years

14. Shri Prabir Debbarma, Age-47 years

15. Shri Nihar Debbarma, Age-45 years

16. Shri Badal Debbarma, Age-43 years

17. Smt Anita Dutta, W/O- Shri Dilip Datta, D/O Lt. Kanu Debbarma, Age-46 Years (All are sons & daughter of Lt. Kanu Debbarma, Resident of Vill. Purba Gakulnagar, PO. Gakulnagar, PS & Sub- Division-Bishalgarh, District- West Tripura) (Presently Dist. Sepahijala, Tripura).

18. Smt Namita Nandi, W/O Lt. Amal Nandi, of Vill. Kenania, PO. Debipur, PS. Bishalgarh, District- West Tripura (Presently Dist. Sepahijala Tripura), Age-56 years.

.......The Respondents.

19. Smt Bhabana Deb, W/O Late Sudhir Debbarma, Age-58 years.

20. Shri Subhajit Deb, S/O Late Sudhir Debbarma, Age-33 years.

21. Smt Tanusree Deb, D/O Late Sudhir Debbarma, Age-35 years.

All are Resident of Village & Post Office- Shib Nagar, P.S. & Sub Division- Bishalgarh, District- West Tripura. (Presently Dist. Sepahijala Tripura).

22. Smt Prabasi Debbarma, W/O Late Probodh Debbarma, Age-60 years.

23. Shri Prasenjit Debbarma, S/O Late Prabodh Debbarma, Age-31 years. Both are R/o-Village & Post Office-Shib Nagar, P.S & Sub Division- Bishalgarh, District-West Tripura, (Presently Dist. Sepahijala Tripura).

24. Smt Jayasree Debbarma, D/O- Late Probodh Debbarma, W/o- Shri Pijush Datta, R/o- Village- Madhya Brajapur, P.S.-Bishalgarh, District- Sepahijala District, Age-35 years.

.........The Pro-forma Respondents

For Appellant(s) : Mr. P. Roy Barman, Sr. Adv, Mr. Samarjit Bhattacharjee, Adv.

For Respondent(s) : Mr. D. J. Saha, Adv.

Date of Hearing          :       13.05.2024
Date of delivery of
Judgment and Order :             17.05.2024
Whether fit for
Reporting                :       YES

         HON'BLE MR. JUSTICE BISWAJIT PALIT

                        Judgment & Order

             This second appeal        is preferred under Section

100 of CPC challenging the judgment and decree dated

17.12.2021 and 04.01.2022 respectively passed by Learned

Additional District Judge, (Court No-5), West Tripura,

Agartala, in case No.Title Appeal No.63 of 2016. By the said

judgment, Learned First Appellate Court reversed the

judgment dated 23.09.2016 and decree dated 01.10.2016

passed by Learned Civil Judge, Senior Division, Court No.1,

West Tripura, Agartala in T.S. 53 of 2012.

02. Heard Learned Senior Counsel Mr. P. Roy Barman

assisted by Learned Counsel Mr. S. Bhattacharjee for the

appellants and also heard Learned Counsel Mr. D.J. Saha

appearing on behalf of the respondent-plaintiffs. At this

stage, let us project the subject matter of dispute amongst

the rival parties. The respondent-plaintiffs filed one suit

against the defendant-appellants before the Court of Learned

Civil Judge, Senior Division, Court No.1, West Tripura,

Agartala with the averment that the predecessor of the

plaintiff No.1 namely, Dhananjoy Debbarma was the owners

in possession of the suit land who purchased the same on

the basis of a registered Sale Deed bearing No.271 dated

23.07.1333 Tring (Tripura Era) corresponding to 1923 A.D.

being executed by one Ichyamayee Das. Said predecessor of

the respondent-plaintiffs made an application for mutation to

the competent authority but due to lack of knowledge, he

could not pursue the matter and as such the application was

misplaced, resulting which the entire suit land has been

recorded jointly in the name of the predecessor of the

respondent-plaintiffs and his two brothers namely, Basanta

Debbarma and Harimohan Debbarma. The respondent-

plaintiff No.1 filed an objection before the Revenue Authority

against the said illegal recording of record of rights but the

Revenue Authority did not consider the same rather advised

the said respondent-plaintiff to seek relief before the

competent Court.

03. It was further asserted that the predecessor of

the respondent-plaintiffs originally belonged to „Das‟

community. But later on, the Maharaja of Tripura was highly

pleased upon him and conferred title as „Debbarma‟ and as

such their predecessor including themselves used their title

as „Debbarma‟ instead of „Das‟. But, while the predecessor of

the respondent-plaintiffs purchased the suit land on the

strength of said Sale Deed, his name was written as

„Dhananjoy Das‟ in place of Dhananjoy Debbarma. It was

further asserted that the defendants of the original suit

having no right, title and interest over the suit land were in

permissive possession over the suit land. They took

advantage of illegal entry in the record of rights initially filed

a partition suit, which was numbered as T.S.(P) 14 of 2003

and later on, withdrawn the same and instituted a fresh suit

bearing No.T.S.(P) 16 of 2005 in the Court of Learned Civil

Judge, Senior Division, Court No.2, seeking partition of the

suit property along with other properties. But the said

partition suit was dismissed by a judgment dated 03.05.2011

holding that the predecessor of the plaintiffs has purchased

the said land on the strength of said Sale Deed. The

defendants or the said plaintiffs of the partition suit did not

challenge the judgment and as such the plaintiff No.1 on

07.08.2011 approached the defendants, now the appellants

herein to vacate the suit land which was refused and for that

the respondent-plaintiffs approached the Civil Court to have

a decree for title and consequential relief for recovery of

possession.

04. The defendants of that suit i.e. the appellants of

this present appeal contested the suit before the Learned

Trial Court by filing written statement, wherein they asserted

that the father of the defendants, Harimohan Debbarma

along with his two brothers namely, Basanta Debbarma

Debbarma and Dhananjoy Debbarma were the equal share

holders of land measuring 5 kanis & 16½ gandas recorded in

their names vide Khatian No.2182 under Mouja- Krishna

Nagar. So, according to them, the respondent-plaintiffs

cannot claim 0.95 acres of land out of the total land as per

Khatian recorded in the year 1964.

It was further submitted that all the legal heirs of

Harimohan Debbarma were not made party in the suit. So,

the suit was not maintainable. Further, it was submitted that

2.33 acres of land was originally owned by Nilmani

Debbarma and after his demise, the entire land was recorded

in the name of his three sons, Harimohan Debbarma,

Basanta Debbarma and legal heirs of Dhananjoy

Debbarma(being the son of Nilmani Debbarma). So,

according to the defendant-appellants, the land purchased by

Dhananjoy Debbarma in his sole name in the year 1333

Tring corresponding to 1923 has no relation with the suit

land. The said defendants also filed additional written

statement and denied the fact of conferring Title of

„Debbarma‟ by the then Maharaja of Tripura to the

predecessors of the respondent-plaintiffs.

05. Upon the pleadings of the parties, Learned Trial

Court framed the following issues:

1. Is the suit maintainable in its present form and nature?

2. Are the Plaintiffs being owner and possessor of the suit land entitled to get a decree declaring their right, title and interest over the suit land?

3. Whether the plaintiffs are entitled to get a decree for recovery of possession of the suit land;

4. Any other relief/reliefs the parties are entitled to?

06. To substantiate the suit, both the parties have

adduced oral/documentary evidence on record before the

Learned Trial Court:

Name of the Plaintiffs Witnesses:

1. PW1- Sri Malin Debbarma.

2. PW2- Sri Sumesh Debbarma. Name of the Defendants Witnesses:

1. DW1- Sri Subodh Debbarma. Exhibited documents of Plaintiffs Witnesses:

1. Certified copy of registered sale deed bearing No. 271, dated 23.07.1333 TE( Exbt. 1)

2. Certified copy of order dated 05.12.1985 in connection with dispute case No. II of Mouja- krishna Kishore Nagar.( Exbt. 2)

3. Certified copy of order dated 16.03.1991 and 27.03.1991 in connection with objection case No. 2 of Mouja- K.K. Nagar. (Exbt. 3)

4. Certified copy of khatian bearing Nos. 3545, 2355/1 and 2355/2. (Exbt. 4)

5. Certified copy of enquiry report dated 24.04.2006 (Exbt.5)

6. Certified copy of enquiry report dated 03.05.2006. (Exbt.6)

7. Certified copy of judgement, dated 03.05.2011 and decree, dated 06.06.2011 in connection with TS (P) 16 of 2005 (Exbt.7)

8. Certified copy of khatian bearing No. 2355/1 of Mouja- krishna Kishore Nagar (Exbt.8)

9. Certified copy of order dated 11.10.2012 in connection with Revenue Case No. 114 of 2004 (Exbt.9)

10. Certified copy of plaint in TS.(P) 16 of 2005( Exbt.10)

11. Certified copy of written statement in TS(P) 16 of 2005 (Exbt.11)

12. Certified copy of examination-in chief and cross-examination of one witness namely Gouranga Debbarma in connection with TS(P) 16 of 2005. (Exbt. 12).

Exibited Documents of Defendants:

1.Original Copy of registered sale deed bearing No.8869, dated 06.04.1952 (Exbt.A) and

2.Copy of Notice dated 16.02.1962 (Exbt.

B).

07. Finally, after taking evidence of both the sides

and also after hearing the arguments, Learned Trial Court by

judgment dated 23.09.2016 dismissed the suit filed by the

respondent-plaintiffs. For the sake of convenience, I would

like to refer herein below the operative portion of the

judgment and order dated 23.09.2016 of the Learned Trial

Court passed in connection with case No.T.S.53 of 2012 as

follows:

"In the result the suit stands dismissed on contest without cost.

To feel contrive for their (plaintiffs) reproachable conduct, here is no order as to cost.

Prepare Decree accordingly. Enter the result."

08. Being dissatisfied with the judgment and decree

of the Learned Trial Court, the respondent-plaintiffs

preferred an appeal before the Court of Learned District

Judge, West Tripura, Agartala and the case was ultimately

assigned to the Court of Learned Additional District Judge,

West Tripura, Agartala Court No.5 as Title Appeal No.63 of

2016 and the Learned First Appellate Court, after hearing

arguments of both the sides reversed the judgment of the

Learned Trial Court and granted a decree in favour of the

respondent-plaintiffs of the original suit.

09. 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 runs as follows:

"In the result, the appeal is allowed and the judgment and decree passed by Learned Trial Court is hereby reversed.

It is hereby declared that plaintiffs/appellants have right, title and interest of the suit land and entitled to get recovery of possession of the suit land by evicting the defendants/respondents and removing all obstructions.

Accordingly, defendants/respondents are directed to vacate the suit land within 30 days from today.

This appeal is disposed of on contest. Prepare appellate decree accordingly. Send down the LC Record along with a copy of this Judgment and decree.

Make entry in Trial register and upload in CIS."

10. Being dissatisfied with the judgment of the

Learned First Appellate Court, the defendants of the original

suit as appellants have preferred this second appeal before

this High Court. At the time of admission of appeal by order

dated 16.08.2022, the following substantial questions of law

were formulated:

"(I) Whether the findings of the learned Appellate Court is perverse. (II) Whether the finding of the learned Appellate Court that the Exhibit-A i.e. the sale deed No.271 dated 23.07.1333 though in the name of one Dhananjoy Das but Dhananjoy Das & Dhananjoy Debbarma is the same and identical person, as assertion made in the plaijnt, that Maharaja of

Tripura conferred title "Debbarma" to Dhananjoy Das, has not been disproved by the Appellants is against the well settled legal principle, that a party who pleads a specific fact must prove that fact?"

11. In course of hearing of arguments, Learned

Senior Counsel Mr. P. Roy Barman assisted by Learned

Counsel, Mr. Samarjit Bhattacharjee, appearing on behalf of

the appellants submitted that the respondent-plaintiffs

before the Learned Court below could not prove any cogent

oral/documentary evidence on record in respect of the suit

land and also could not prove that the then King of Tripura

conferred Title as "Debbarma" in place of "Das", so, after

considering all the aspects, Learned Trial Court below rightly

dismissed the suit filed by the respondent-plaintiffs. But the

Learned First Appellate Court ignoring the oral/documentary

evidence on record reversed the judgment of Learned Trial

Court for which according to Learned Senior Counsel, the

interference of this Court is required. Learned Senior Counsel

further referred the para Nos.1, 2, 3 of the plaint submitted

by the respondent-plaintiffs before the Learned Trial Court

and also the written statement filed by the answering-

defendants in the said suit and referred para Nos.7, 8, 9, 10

and 11 and submitted that the Learned First Appellate Court

ignoring the evidence on record of the parties before the

Learned Trial Court wrongly misconstrued the factual and

legal positions and ultimately reversed the judgment of the

Learned Trial Court and urged for setting aside the judgment

of the Learned First Appellate Court and prayed for upholding

the judgment of the Learned Trial Court.

12. On the other hand, Learned Counsel, Mr. D. J.

Saha appearing on behalf of the respondent-plaintiffs

submitted that Learned Trial Court at the time of delivery of

the judgment failed to appreciate the oral/documentary

evidence on record of the plaintiffs and thus, came to an

erroneous finding and dismissed the suit but the Learned

First Appellate Court, after elaborate hearing of arguments of

both the sides, came to an observation that the judgment of

the Learned Trial Court suffers from infirmities for which

Learned First Appellate Court was satisfied with the oral and

documentary evidence on record of the respondent-plaintiffs

and being dissatisfied reversed the judgment of the Learned

Trial Court. It was further submitted that there is no infirmity

in the judgment of Learned First Appellate Court. Learned

Counsel for the respondent-plaintiffs also submitted that the

appellants herein i.e. the respondents of the original suit by

their written statement or by their oral/documentary

evidence on record, did not dispute on record the alleged

Sale Deed, relied upon by the respondent-plaintiffs, i.e.

Exhibit-1. It was further submitted that as submitted by

Learned Senior Counsel for the appellants that the then

Maharaja did not confer any Title to their predecessor

Dhananjoy Das as Dhananjoy Debbarma was vested upon

the present appellants as the onus of proof lies upon them,

but they did not do so. So, just by mere denial, there is no

scope to accept the plea of Learned Counsel for the

appellants. Furthermore, the appellants of this present

appeal, i.e. the defendants of the main suit all along

admitted that the predecessor of the respondent-plaintiff

No.1, Dhananjoy Debbarma was the son of Nilmani

Debbarma and he himself and he had more two other

brothers namely, Basanta Debbarma and Harimohan

Debbarma. So, the question of identification does not arise

at all and finally, Learned Counsel for the respondent-

plaintiffs urged for dismissal of the appeal, upholding the

judgment of the Learned First Appellate Court.

13. I have heard the detailed arguments of both the

sides and gone through the records of the Learned Court

below including the judgments of the Learned Trial Court as

well as the Learned First Appellate Court.

14. At the time of determination of appeal, Learned

First Appellate Court formulated these three points:

(a) Whether the plaintiffs are exclusive owner of the suit land or whether the suit land is joint property?

(b) Whether the plaintiffs are entitled to the decree as prayed for?

(c) Whether Judgment and decree passed by the Ld. Trial Court is required to be interfered?

15. In deciding the point No.(a), Learned First

Appellate Court came to the observation that according to

the respondent-plaintiffs Dhananjoy Debbarma alias Das, i.e.

the predecessor of the respondent-plaintiff No.1, purchased

the suit land on the strength of registered Sale Deed bearing

No.271 dated 23.07.1333 which was marked as Exhibit-1

and according to the respondent-plaintiffs, their Title was

determined on the basis of said Sale Deed (Exhibit-1) by the

Court of Learned Civil Judge, Senior Division, Court No.2 in

T.S.(P) 16 of 2005 by a judgment dated 30.05.2011, which

was marked as Exhibit-7 and subsequent Revenue Courts

order dated 11.10.2012 passed in connection with case

No.114 of 2004 in a proceeding of under Section 95 of TLR

and LR Act, 1960 and the concerned Revenue Court also

declared that Khatian No.2355 be recorded in the name of

respondent-plaintiffs and other names are to be deleted from

the respective column No.14 and the names of the

defendants of the original suit are to be recorded as

permissive possessors and the said order was marked as

Exhibit-7 and after that a new Khatian No.2355/1 was

created in the name of the respondent-plaintiffs which was

marked as Exhibit-8.

16. So, Learned First Appellate Court came to the

observation that the respondent-plaintiffs are the owners of

the suit land and the suit land was not a joint property. He

also came to the observation that previous Khatians were

created without any basis and the Khatian does not confer

any Title and it is the settled position of law that mere entry

in ROR does not confer any Title.

17. In Prabhagiya Van Adhikari Awadh Van

Prabhag vs. Arun Kumar Bhardwaj (Dead) through

Legal Representative and Others dated 05.10.2021

reported in (2021) 18 SCC 104, Hon‟ble the Apex Court in

para No.26 observed as under:

"26. This Court in a judgment in Prahlad Pradhan v. Sonu Kumhar:(2019) 10 SCC 259 negate argument of ownership based upon entries in the revenue records. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. The Court held as under:)(SCC p. 263, para

5) "5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-

acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question:Bhimabai Magadeo Kambekar v. Arthur Import & Export Company, (2019) 3 SCC 191. As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property."

From the above principal of law, it appears that

the khatian does not confer any title.

18. It was further observed that in the partition suit

T.S.(P) 16 of 2005, the nephew of Dhananjoy Debbarma in

cross-examination admitted that earlier he was a member of

Das Community, so, it is clear that the respondent-plaintiffs

are/were owner of the suit land and the suit land was

purchased by Dhananjoy Debbarma(Das), although in the

Sale Deed, it was mentioned his name as Dhananjoy Das and

the Title was subsequently changed as Debbarma being

conferred by the then Maharaja of Tripura to the predecessor

of the respondent-plaintiffs and this admission also attracts

the provision of Section 23 of the Evidence Act.

Section 23 of the Evidence Act:

"23. Admissions in civil cases, when relevant.- In civil cases no admission is relevant, if it is made either upon an

express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. "

17. Learned First Appellate Court, thus came to the

conclusion that the suit land was exclusively the property of

the respondent-plaintiffs and it was not a joint property and

to revert the same, the defendants of the original suit could

not adduce any oral/documentary evidence on record save

and except denial. Even to counter Exhibit-1 and Exhibit-7,

the contesting defendants i.e. the appellants herein could not

adduce any rebuttable evidence on record.

18. Now, I would like refer herein below the operative

portion of the judgment dated 30.05.2011 delivered by

Learned Civil Judge, Senior Division in connection with

T.S.(P)16 of 2005. The said suit was filed by Gouranga

Debbarma against the respondent-plaintiffs and also the

defendants of the main suit. In deciding issue No.2 and 3,

Learned Court gave the following findings in T.S.(P) No.16 of

2005:

" I have carefully perused the testimonies of the witnesses examined from both the sides and also the documents proved by the parties to this suit. To substantiate the claim of a party in a partition suit, the party in question first of all shall have to prove their right, title and interest over the suit land. In this suit it if found that though the plaintiffs claimed that one Nilmani Debbarma was the actual owner of the possessor of the suit land. But unfortunately, the plaintiffs failed to submit a single document to show that the suit land was actually purchased and possessed by the said Nilmani Debbarma at any point of time and not only that the plaintiffs of this suit have miserably failed to submit any khatian wherein the name of said Nilmani Debbarma was recorded as Riyati or possessor.

On the other hand the defendants Nos.1 to 7 have proved the registered sale deed

(Ext.A) on the strength of which their father Dhananjoy Debbarma became the owner and possessor of the suit land. From the Ext.B series and C it is found that as the said land was wrongly recorded in the names of the plaintiff and the other defendants, the defendants Nos.1 to 7 filed objection case before the ASO Bishalgarh. As the plaintiffs have failed to establish their right, title and interest over the suit land by adducing documentary evidence so far as the so called owner ie., Lt. Nilmani Debbarma is concerned, I am of the opinion that the plaintiffs are not entitled at all to get any decree as prayed for. Rather, from the Ext.A it is found that Lt. Dhananjoy Debbarma was the actual owner of the suit property.

So legal heirs of Dhananjoy Debbarma have right, title and interest over the suit land. So, both the issue Nos.2 & 3 are hereby decided in negative and against the plaintiffs."

19. From the findings, it appears that by that

judgment, the Learned Court below came to the clear finding

that the predecessor of the respondent-plaintiffs, Dhananjoy

Debbarma had right, title and interest over the suit land and

thus, decided the issue Nos.2 and 3 against the plaintiffs of

that suit namely, Gouranga Debbarma.

20. Challenging that judgment, no further appeal was

preferred. Thus, the same has attained finality. Even

challenging Exhibit-9, the order of the Revenue Court passed

in connection with case No.114/2004 under Section 95 of

TLR & LR Act, 1960 darted 11.10.2012, no further relief was

sought for. The said order also has attained finality. The

contesting defendants in the original suit, challenging

Exhibit-1 and also Exhibit-A relied upon by the defendants

could not adduce any other documentary evidence on record

save except one khatian and as already stated khatian does

not confer any title. It also appears that in the Title Deed,

the name of the father of Dhananjoy Das was also written as

Nilmani Das and since Gouranga Debbarma, the son of the

brother of Dhananjoy Debbarma(since dead) in the aforesaid

partition suit bearing No.T.S.(P)16 of 2005 admitted that

earlier he was a member of Das Community, so, there was

no scope to disbelieve the fact of conferring Title upon

Dhananjoy Das as Debbarma by the then Maharaja of the

State of Tripura and his father as Nilmani Debbarma. To

revert that plea, no other evidence could adduce by the

defendants in the main suit i.e. the appellants herein. So,

Learned First Appellate Court after elaborate discussions of

the evidence on record as well as on perusal of the

documentary evidence on record, came to the finding that in

civil cases, the parties are not required to prove their case

strictly and beyond reasonable doubt but on the basis of

preponderance of probability and also observed that

preponderance of probability lies in favour of the respondent-

plaintiffs i.e. the appellants of the First Appeal in connection

with case No.T.A. 63 of 2016 and thus, came to the

observation that the respondent-plaintiffs are/were the

exclusive owner of the suit land and it was not a joint

property of the respondent-plaintiffs and the defendants i.e.

the appellants and others of the present appeal and

accordingly, decided point No.1 in favour of the respondent-

plaintiffs. Since, Learned First Appellate Court decided the

point No.1 in favour of the respondent-plaintiffs of this

appeal, so, the Learned First Appellate Court further came to

the view that the respondent-plaintiffs are also entitled to

the decree of declaration and for recovery of possession and

thus reversed the judgment of the Learned Trial Court.

21. In R.V.E. Venkatachala Gounder vs. Arulmigu

Viswesaraswami & V.P. Temple and Another dated

08.10.2003, reported in (2003) 8 SCC 752, Hon‟ble the

Supreme Court of India in para No.29 observed as under:

"29. In a suit for recovery of possession based on the title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the Chnchamma:AIR (1964) SC 136 there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."

22. So, after going through the judgment of the

Learned First Appellate Court and after hearing detailed

arguments of both the sides and also in view of the principal

laid down by the Hon‟ble Apex Court in the aforenoted case,

it appears that it is the settled position of law that the

burden of proof lies upon a person who has to prove the fact

and which never shifts. But onus of proof shifts. Such a

shirting of onus is a continuous process in the evaluation of

evidence. In the case at hand, the appellant could not show

any rebuttable evidence on record showing their valid right,

title and interest over the suit land and also the appellant-

defendants could not show any evidence on record both