Tripura High Court
Sri Nitai Shil vs The State Of Tripura on 31 May, 2024
Page 1 of 12
HIGH COURT OF TRIPURA
AGARTALA
RSA. 21 of 2023
1. Sri Nitai Shil,
56 years
2. Sri. Gouranga Shil,
54 years
both are sons of Lt. Nibaran Shil,
resident of Sankar Palli, near MI Office,
Amarpur Town, P.S. Birganj,
District-Gomati.
.........Plaintiff appellant(s)
Vs.
1. The State of Tripura,
represented by the DM & Collector,
Gomati District, Udaipur.
2. The Sub-Divisional Magistrate,
Amarpur, Gomati District.
3. The Tehsilder,
Birganj, Tehsil-Kachari,
Amarpur, P.O & P.S. Birganj,
Gomati District.
.... Defendant Respondent(s)
For Appellant(s) : Mr. DR Choudhury, Sr. Adv.
Mr. S Sarkar, Adv.
For Respondent(s) : Mr. K De, Addl. GA.
Date of hearing : 12.03.2024
Date of delivery of judgment : 31.05.2024
Fit for reporting : NO
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
This appeal arises out of a judgment dated 26.04.2023
passed by learned Additional District Judge, Gomati, Udaipur in
Title Appeal No.04/2019 whereby the appeal was dismissed
affirming the judgment and decree passed by learned Civil Judge,
Senior Division in Title Suit No.02/2016 by which learned Trial
court dismissed the suit of the plaintiff appellants for declaring
their right, title and interest over the suit land by way of adverse
possession.
[2] The suit land comprises 0.507 acre of CS Plot No.1151,
corresponding to RS Plot No.2332 of class 'Tilla' as reflected in RS
Khatian of Mouja Amarpur. During first settlement operation, the
classification of land was shown as 'Bastu'.
[3] The claim of the appellants was that their father Lt.
Nibaran Shil came in the locality of that area in the year 1950 from
East Pakistan and started residing in contiguous CS Plot Nos.
1151/1180 and 1401/1881 by constructing homestead dwelling
and subsequently, got allotment of said land in the year 1964.
[4] While residing in those plots said Nibaran Shil also
started possessing the suit land by constructing huts therein and
by planting vegetables and other seasonal crops. However, from
01.01.1965 said Nibaran Shil, started forcefully possessing the suit
land openly in public and adversely claiming his right, title and
interest therein. The suit land as was during the first survey and
settlement operation was recorded in the name of the government
in the Khas Khatian, showing him as an illegal possessor in the
relevant column of the related Khatian.
[5] According to the appellants, said adverse possession
became perfected after a lapse of 30 years i.e. on 31.12.1994,
since when their predecessor became the owner thereof. The said
Nibaran Shil died in 2004 and his wife also expired in 2011 and
thereafter, the appellants became absolute owners in possession
of the suit land. But during Revisional survey and in settlement
operation, the name of predecessor of the appellants was deleted
from the relevant column of the Khatian. It was also stated by
appellants that in the year 2015 the defendants sanctioned a
minimum of Rs.25,000/- in the name of the appellant No.1 for
construction of his house in the suit land.
[6] It was also additionally stated that in the year 2012,
the appellants filed Title Suit No.23/2012 for declaration of their
right, title and interest with further prayer for an injunction against
some of the present respondents in the court of learned Civil
Judge, Senior Division, Gomati, of the then South Tripura
District, in respect of their allotted land which was also decreed on
22.05.2013. But suddenly, on 23.12.2015, the respondent No.3
with his staff came to the suit land and cautioned the appellants to
vacate the suit land within seven days followed by serving a notice
dated 26.12.2015, asking the appellants to appear before him with
relevant papers in support of his occupation of the suit land. Again,
a similar second notice was served on 02.01.2016 and the
appellants submitted all necessary documents to respondent No.2
but despite the same, on 14.01.2016, the respondent No.3 with
his men tried to dispossess the appellants from the suit land
illegally and, therefore, the present suit was filed.
[7] According to the respondents, considering the
possession of the father of the appellants, 0.451 acre of land was
allotted to them from CS Plot No.1151 but his name was not
deleted from the Khatian. However, the same was later on deleted
during Revisional survey and settlement operation.
[8] According to them, the father of the appellants never
possessed the present suit land. They further stated that from the
said allotted 0.451 acre of land the allottees sold out 0.30 acre of
land to some other persons and now started claiming the suit land
as of their own.
[9] During trial from the side of the appellants, four
witnesses were examined and some documents were also proved
into record. Out of said four witnesses, PW-4, Narayan Chandra
Tripura was the Assistant Survey Officer of the office of Director of
Land Records & Settlement, Govt. of Tripura. Affidavit of one
witness from the side of respondents was submitted, but
ultimately, the said witness did not appear to face cross-
examination and evidence of respondent side was closed.
[10] The appeal was admitted on the following substantial
questions of law:-
i. Whether the plaintiff-appellants have been able to
prove their adverse possession to the state?
ii. Whether the findings of both the courts below are
perverse in respect of possession of the suit land
by the plaintiff-appellants?
[11] Learned Sr. counsel, Mr. DR Choudhury for the
appellants, argued that from 01.01.1965 the appellants or their
predecessors have been possessing the suit land adversely and
despite notices issued by the respondents, the appellants could not
be evicted from the suit land and they have their uninterrupted
hostile possession over the suit land with the knowledge of
everyone.
[12] Learned Sr. counsel gave emphasis to the fact that the
government itself, through the publication of Khatian of first
survey and settlement operation, admitted that the predecessor of
the appellants was in forceful possession of the suit land but
learned trial court as well as learned first appellate court missed to
consider that aspect.
[13] According to learned Sr. counsel, the appellants
successfully proved their adverse possession in the suit but
learned trial court as well as learned first appellate court mis-
appreciated the evidences led by the plaintiffs leading to a
perverse decision.
[14] Learned Sr. counsel also relied on a decision of the
Hon‟ble Supreme Court in Eureka Builders & Ors. vs.
Gulabchand reported in (2018) 8 SCC 67. In that case, while
considering the materials available in the record, Hon‟ble Supreme
Court held that the plaintiff was in lawful possession of the suit
land since 1942/1943 and the original holders of the land were
aware of such ownership rights of the predecessors of the plaintiffs
and such aforesaid undisputed facts confirmed the possessory
right, title and interest of the plaintiff on the suit land against
everyone, including the original holders, by operation of law.
[15] Learned Sr. counsel also made reference to a decision
of this court in case of Ratna Chakraborty & Ors. Vs Pranab
Kanti Basu & Ors. reported in (2015) 1 TLR 96 wherein at para
23, this court observed that Section 27 of the Limitation Act
provides that if within a period prescribed by the law of limitation
any person fails to institute suit for recovery of possession of any
property, his right to such property shall be extinguished and such
possession, known as adverse possession, is not a mere fact, it
creates a definite right in favour of the squatter on extinguishment
of right of true owner.
[16] Learned Sr. counsel, Mr. Choudhury, further relied on
another decision of this court rendered in Hiranbala Deb & Ors.
vs. The State of Tripura & Ors. (2015) 1 TLR 104 wherein
basing on the factual narrations of the parties the court observed
that as the plaintiff had proved that since 15.05.1963 they had
animus possidendi, open and uninterrupted, and as on the day of
possession by respondent No.2 of that case in exercise of powers
under Section 16 of Land Acquisition Act, the title by prescription
in favour of the plaintiffs had existed. It was also observed that
there is a distinction between „the forcible occupier‟ and
„unauthorized occupier‟ and the nature of possession had to be
gathered and identified from the evidence led by the person
claiming such title on the basis of animus possidendi.
[17] Another reference, as made by the learned Sr. counsel
Mr. Choudhury, is one decision of this court in case of Chinu Das
& Ors. vs. Nimai Debdas (2020) 1 TLR 534. In that case, it
was held at para 17 that a plaintiff can well maintain a suit
claiming title by virtue of adverse possession under Article 65 of
the Limitation Act and that apart, the plaintiff can also further seek
relief of permanent injunction.
[18] Learned Addl. GA, Mr. K De referred to para 7 of the
judgment of learned trial court and submitted that mere
possession over a property for a long period of time does not grant
the right of adverse possession on its own in absence of animus
possidendi. According to learned Addl. GA, the court is required to
act with more cautiousness when plea of adverse possession is
raised in respect of a government land.
[19] According to Mr. De, learned Addl. GA in the instant
case, the appellants relied on a comment made in the Khatian of
first survey and settlement operation reflecting the name of their
predecessor as an illegal occupier, which was omitted during the
revisional survey and settlement operation and against the said
order of settlement authority, the appellants did not make any
challenge in the appropriate forum and therefore, they are
estopped from raising any challenge regarding entries of Khatian
prepared during revisional survey and settlement operation in
respect of the suit land.
[20] Finally, learned counsel relied on a decision of Hon‟ble
Supreme Court in Government of Kerala and Anr. vs. Joseph
and Ors. (Civil Appeal No. 3142 of 2010) decided on
09.08.2023 wherein it was observed that when a claim is raised by
any private party of adverse possession in relation to a land
belonging to the government, the court is required to consider this
question more seriously. Reference of another decision of Hon‟ble
Supreme Court in State of Rajasthan Vs. Harphool Sing,
(2000) 5 SCC 652 was also made in said decision. In the said
case of Harphool Singh (supra) it was observed by the Apex
Court that so far the question of perfection of title by adverse
possession and that too in respect of public property is concerned,
the question requires to be considered more seriously and
effectively for the reason that it ultimately involves destruction of
right/title of the state to immovable property and confirming upon
a third party encroacher where he had none.
[21] On considering the rival contentions of the parties and
on perusing the materials available on record, it is found that
during the first survey and settlement operation, Khatian No.1 was
opened in respect of disputed CS Plot No.1151 comprising an area
of 0.507 acre standing in the name of government of Tripura and
in said Khatian, the name of predecessor of the appellants was
mentioned in column No.23 as an illegal possessor in respect of
said plot.
[22] During revisional survey and settlement operation, said
comment was deleted from the Khatian but the area of said plot
was maintained to be 0.507 acre and one RS plot corresponding to
said CS plot was created in respect of said area viz. RS plot
No.2332. Simultaneously, during first survey and settlement
operation, an area of total 0.451 acre of land was allotted in the
name of predecessor of the appellants wherein one CS plot bearing
No. 1151/1880 of area 0.170 acre was endorsed in the name of
predecessor of appellant.
[23] The contention of the appellants that since their
predecessor they were possessing the suit land adversely and as
such, said comment was inserted in the said Khatian No.1, does
not find much support from the said old Khatian inasmuch as mere
insertion of a comment "illegal possessor" in the comment column
itself does not constitute adverse possession, unless all the
ingredients of adverse possession are distinctly proved by the
persons seeking such relief based on adverse possession.
[24] It is also a fact that when the name of
predecessor of the appellants was not maintained in the Khatian
prepared during revisional survey and settlement operation, they
or their predecessor did not challenge the same before any higher
revenue authority.
[25] At the instance of the appellants themselves, one officer
from settlement department namely, Sri Narayan Chandra Tripura,
was summoned to appear as witness on behalf of the appellants
and in his evidence, he stated that generally a person who is found
in possession of the property during field inquiry, Khatian is
created in his name until and unless any objection is received and
found proper in this respect.
[26] He also stated that as per their revenue records there
was nothing that any person had raised any objection when the
name of predecessor of the appellant was not reflected with
reference to RS Plot No.2332 and generally, Khatian is finally
published after the completion of all the stages of preparation of
such ROR.
[27] He also stated that in their relevant register there was
no mention on which date said predecessor of the appellant
occupied CS Plot No.1151. Finally, one suggestion was given from
the side of the appellants to him that intentionally, the name of
their predecessor was deleted from the Khatian of revisional
survey and settlement operation to provide the land to the PWD.
The said witness did not support the case of the appellants but the
appellants did not declare the said witness hostile.
[28] As per the claim of the appellants, their father, after
coming from East Pakistan, started occupying the suit land and its
contiguous plots and those contiguous plots were allotted to him.
But the suit land was not allotted to him by the government and in
spite of repeated inquiries to the appropriate authorities, their
father could not know the reasons for not allowing the suit land to
him, in his name. The appellant No.2 stated the aforesaid facts in
his evidence and stated further that thereafter, getting the reason
for not allotting said suit land to him, his father, from 01.01.1965
started possessing the suit land forcibly and illegally, to the
knowledge of everyone in the locality. From such evidence, it
appears that since his migration to India from the then East
Pakistan, the father of the appellants started occupying the suit
land and at that time, as per the claim of the appellants
themselves, he did not start possessing the suit land adversely and
there is also no explanation from the side the appellants as to how
suddenly his possession became adverse from 01.01.1965.
[29] Mere possession, whether lawful or illegal, how so long
ever be, does not automatically constitute adverse possession,
unless it is proved satisfactorily that from a certain period it
became hostile to the real owner and such possession was
continuous and open.
[30] In the case in hand for the reasons discussed above, it
appears that learned trial court as well as learned first appellate
court committed no error in negating the claim of adverse
possession of the appellants. The substantial questions of law
formulated in the appeal are answered accordingly.
[31] As a result, it is held that the appeal is devoid of merit
and accordingly, the same is dismissed with costs in favour of the
respondents.
The registry is directed to prepare the decree
accordingly and to send down the LCRs with a copy of the
judgment and decree.
Interim application, if any, also stands dismissed of.
JUDGE
SATABDI Digitally signed by
SATABDI DUTTA
DUTTA Date: 2024.06.04 13:13:02
+05'30'
Satabdi
