Tripura High Court
Smt. Chabi Rani Das (Aged 60 Years) vs Sri Manoranjan Das on 20 May, 2024
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA No.07 of 2023
Smt. Chabi Rani Das (Aged 60 years)
wife of late Santosh Das, resident of
village -Subhash Colony, P.S.
Santirbazar, District- South Tripura
......... Appellant
-Versus-
Sri Manoranjan Das
son of late Dinabandhu Das, resident
of village- Baroj Colony
(Manurmukh), P.O. Sarashima, P.S.
Belonia, District- South Tripura
........ Respondent
For the Appellant(s) : Mr. H. Laskar, Adv.
Mr. R.G. Chakraborty, Adv.
For the Respondent(s) : Mr. S.S. Debnath, Adv.
Date of hearing : 04.04.2024
Date of delivery of : 20.05.2024
Judgment & order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
The appeal arises out of the judgment dated 16.12.2022
passed by the learned District Judge, South Tripura, Belonia in Title
Appeal No.06 of 2019, whereby the learned District Judge has
affirmed the judgment of learned Civil Judge (Jr. Division), Belonia,
South Tripura dated 13.03.2019 passed in Title Suit No.31 of 2015
and related decree thereof, by way of dismissing the appeal.
Page 2 of 9
[2] The factual narratives in brief, as projected in the plaint, by
the present respondent and his mother Renu Bala Das (now
deceased) (hereinafter referred to as the "plaintiffs") is that the suit
land measuring 1.71 acres was owned and possessed by the
predecessor of the plaintiffs, namely Late Dinabandhu Das as Rayat
thereof and he also planted valuable trees therein. Said Dinabandhu
Das expired on 10.04.1994 leaving the plaintiffs as legal
representatives behind him who accordingly inherited the suit
property. After death of said Dinabandhu Das, both the plaintiffs
shifted to Belonia on certain personal grounds requesting the present
appellant (defendant No.1) and another Kumod Debnath (defendant
No.2), their neighbours to look after the suit land and to graze their
cattle therein. Accordingly, during the survey and settlement
operation, the names of the present defendants and one Sridam Das
i.e. father of the present appellant, were recorded in the Khatian as
permissive possessors in the suit land. However, a few months prior
to the filing of the suit, the present respondent i.e. plaintiff No.2
withdrew his permission from the defendants to further use the suit
land and accordingly communicated the same to the defendants. On
18.06.2015, when the plaintiff No.2 was taking care of his rubber
plantation in the suit land, the defendants dispossessed him therefrom
claiming to be the owner of the suit land.
[3] With such allegations, the suit was filed praying for the
following reliefs:
Page 3 of 9
[i] A decree declaring right, title, interest of the plaintiffs over
the suit land.
[ii] A decree directing the defendants to deliver
possession of the suit land to the plaintiff.
[iii] Permanent injunction directing the defendants not to
disturb the peaceful enjoyment of the suit land by the
plaintiffs and not to enter into the suit land.
[iv] Any other relief or relieves the plaintiff is entitled under
law and equity.
[4] Before the trial Court, the plaintiffs adduced both oral and
documentary evidence and defendant No.1 adduced only oral
evidences. The claim of defendant No.1 in the suit land was of
adverse possession. According to her, prior to the death of the
predecessor of the plaintiffs in 1984, she had been possessing the suit
land adversely to the interest of the plaintiffs and their predecessor.
The defendant No.2 did not contest the suit.
[5] Learned trial Court decreed the suit holding that the
defendant No.1 or her witnesses did not disclose since when she had
started possessing the suit land, adversely and ultimately, held that
defendant No.1 could not prove her claim of adverse possession in the
suit land.
[6] The first appellate court also maintained the findings of the
trial court, as stated above and in this second appeal, the following
substantial questions of law were formulated for hearing:
1. Whether the findings of the courts below that the
defendant/appellant has failed to prove their plea of
adverse possession is perverse or not?
Any other substantial question of law will be formulated at
the time of hearing.
Page 4 of 9
[7] Mr. H. Laskar, learned counsel appearing for the appellant-
defendant No.1 argues that the defendant No.1 has been possessing
the suit land adversely for more than 40 years and valuable rubber
plantations were made by her within the suit land. Learned counsel
further contends that total 5[five] witnesses were examined on behalf
of defendant No.1 to establish the claim of adverse possession and
they also corroborated with each other on material points but the
learned trial court misappreciated their evidence. Mr. Laskar, learned
counsel further argues that some valuable documents were required
to be proved on behalf of the appellant and therefore, the suit may be
remanded to the learned trial court giving the defendant No.1 a scope
to adduce those documentary evidence.
[8] Mr. S.S. Debnath, learned counsel representing the
respondent, mainly concentrates his argument on the point that
practically, there is no substantial question of law to be argued in this
appeal and therefore, the appeal may be dismissed. In support of
such contention, he relied on a decision of Hon'ble Supreme Court in
Appaiya vs. Andimuthu @ Thangapandi & Ors., 2023 Legal
Eagle (SC) 937, [equivalent citation- 2023 AIR (SC) 4810]
wherein reference was made to another judgment of the Apex Court
rendered in the case of Lankeshwar Malakar vs. R. Deka, (2006)
13 SCC 570 and in that case it was held that in order to be
substantial question of law, the test is whether it is of general public
importance or whether it directly or substantially affects the right of
Page 5 of 9
the parties or whether the question is still open i.e., it is not finally
settled by the Supreme Court, Federal Court or Privy Council.
[9] Mr. Debnath, learned counsel also referred another
decision of the Apex Court in a case of Suresh Lataruji Ramteke vs.
Sau. Sumanbai Pandurang Petkar & Ors, 2023 Legal Eagle (SC)
950 [equivalent citation-2023 AIR (SC) 4794], wherein reference
was made to another decision of the Apex Court in Kondiba Dagadu
Kadam vs. Savitribai Sopan Gujar, (1999) 3 SCC 722 wherein it
was held that if the question of law termed as a substantial question
of stands already decided by a larger Bench of the High Court
concerned or by the Privy Council or by the Federal Court or by the
Supreme Court, its merely wrong application on the facts of the case
would not be termed to be a substantial question of law. Similarly, in
Kalpana Sarkar & Ors. vs. Akhil Datta, 2022 Legal Eagle (TRI)
373, as further referred by Mr. Debnath, learned counsel, it was held
by this court that the question of law raised will not be considered as
a substantial question of law, if it stands already decided by a larger
Bench of the High Court concerned or by the Privy Council or by the
Federal Court or by the Supreme Court. Where the facts required for a
point of law have not been pleaded, a litigant should not be allowed to
raise that question as a substantial question of law in second appeal.
[10] While decreeing the suit in favour of the plaintiffs, learned
trial court heavily relied on the Khatian of the suit land standing in the
name of the predecessor of the plaintiffs having some entries in the
Page 6 of 9
24th column showing the defendants as permissive possessor therein.
To support such observation, learned counsel Mr. Debnath also relies
on a decision of this court rendered in Amiyashu Sharma and
others vs. Matilal Dey and others, [judgment and order dated
14.02.2022 in RSA No.26 of 2019]. In the said case, it was observed
by this court that by way of creation of Khatian a person is declared
as Rayat which means the person who owns the land and though said
Khatian is not a document of title but it has it's presumptive value of
correctness until contrary is proved.
[11] Before entering into the matter of substantial question of
law vis-à-vis the merit of the appeal in relation to such formulated
question, another noticeable defect in the judgments of both the
learned trial court and the first appellate court requires attention first.
[12] The issue No.III as was framed by the trial Court was with
reference to the relief of recovery of possession as sought for by the
plaintiffs which is the primary relief as required by the plaintiffs to
gain the fruit of the lis. Issue No.III is as follows:
iii. Whether the plaintiffs are entitled to a decree directing
the defendants to deliver possession of the suit land?
[13] Neither said relief has been granted or the same has been
rejected by the trial court and no discussion on the said issue was also
made by the said court. The reliefs as granted by the trial court by its
judgment dated 13.03.2019 are as follows which were carried over in
the decree framed thereupon:
Page 7 of 9
ORDER
[13] In the result, the instant suit preferred by the
plaintiffs is decreed with cost in their favour and it is
declared that the plaintiffs have right, title and interest of
land measuring 1.71 acres as stated in Hal plot
No.528,529,530,531,532, and 533 as comprised in Khatian
No.150 more specifically described in the schedule to the
plaint.
[14] It is also declared that the defendants and their men
and agents are permanently restrained from disturbing the
peaceful possession of the plaintiffs and enjoyment of the
property of 1.71 acres as stated in Hal plot
No.528,529,530,531,532, and 533 as comprised in Khatian
No.150 more specifically described in the schedule to the
plaint
[15] Thus the suit stands disposed of on contested.
[14] Admittedly, the plaintiff(s) were/are not in a possession of
the suit land and as per the plaint version, they were dispossessed of
the suit land on 18.06.2015 and the cause of action for the suit,
according to the plaintiffs, arose on that day. No cause of action has
been asserted in the plaint by the plaintiffs in support of their prayer
for a permanent injunction. In the absence of any cause of action in
this regard and in view of the fact that the plaintiffs are already
dispossessed from the suit land, granting of such permanent
injunction itself was beyond the jurisdiction of the trial court.
[15] Learned first appellate court at one place at Para No.10 of
the judgment observed that as the plaintiffs had right, title and
interest in the suit land they were entitled to the vacant possession of
the same and surprisingly, on the next paragraph, the court observed
that the defendants were trying to invade the plaintiffs' right to enjoy
the suit land. Therefore, the plaintiffs were entitled to the relief of
permanent injunction. Both findings are self contradictory. Therefore,
both learned trial Court and the first appellate Court committed
serious error by granting relief of permanent injunction to the
plaintiffs which goes to the root of the matter. No cross appeal
was/has been filed by the plaintiff(s) either before the first appellate
court or before this Court though the said relief granted became
illegal, infractuous and unenforceable. In such a situation, even if this
Court finds merit in the case of the respondent-plaintiffs, still cannot
rectify such error.
[16] In view of above, the judgment dated 13.03.2019 and the
related decree thereof passed by the trial Court in Title Suit No.31 of
2015 as well the judgment dated 16.12.2022 and the related decree
thereof passed by the first appellate Court in Title Appeal No.06 of
2019 are set aside.
The suit is remanded to the trial Court again with the
following directions and without making any observation on the merit
of the suit:
[i] After receipt of the record, the trial Court shall
notify all the parties and hear the final argument in
accordance with law and shall thereafter pronounce
the judgment on all issues.
[ii] The trial Court shall take all endeavours to dispose
of the suit at the earliest, preferably within next
3[three] months.
The submission of Ld. Counsel of the appellant for
adducing documentary evidence is not accepted, for,
no document was submitted by the appellant in the
trial Court or before the first appellate Court and no
petition for adducing any additional evidence was also
submitted in any Court.
The appeal, is accordingly, disposed of with the above said
directions.
No order as to costs.
Send down the LCRs forthwith.
Pending application(s), if any, also stands disposed of.
JUDGE
SUJAY Digitally signed by SUJAY
GHOSH
GHOSH Date: 2024.05.22 17:24:26
+05'30'
Sujay
