Tripura High Court
Sri Madhusudan Bhattacharjee And ... vs Sri Dipankar Bhattacharjee And Others on 12 September, 2024
Page 1 of 4
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
CRP No.87 of 2024
Sri Madhusudan Bhattacharjee and another
...... Petitioner(s)
VERSUS
Sri Dipankar Bhattacharjee and others
...... Respondent(s)
For Petitioner(s) : Mr. S.M. Chakraborty, Sr. Advocate,
Mrs. P. Chakraborty, Advocate,
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
=O=R=D=E=R=
12/09/2024
Mr. S.M. Chakraborty, learned senior counsel for the petitioners
has drawn the attention of this Court to the prayer made by the
plaintiff/respondents in Title Suit No.96 of 2020 instituted for declaration
and for permanent injunction along with mandatory injunction as per the
provisions of Section 34 of the S.R Act. The prayer of the plaintiff is
extracted hereunder:
"(i) A Decree declaring that, the suit pathway as described in Schedule C of the plaint is
the joint property of the Plaintiff, the Defendants & the Proforma Defendants having
equal right of enjoyment & possession of the suit pathway.
(ii) A declaration that, the suit pathway is consists of the land measuring 1 ganda as has
been recorded in CS Khatian no. 29052, RS Khatian no. 550, under CS Plot no.
9173/49952, RS Plot no. 2549, but not consist of ½ ganda of land as has been written in
the Partition Deed.
(iii) A declaration that, the Defendants have got no right to make and create any
obstruction by creating any building construction or any other construction in any
portion of the suit pathway.
(iv) A Decree declaring that, the construction works of the building so far has been
made by the Defendants in the portion of the suit pathway is illegal void & is liable to
be demolished.
(v) A Decree for Permanent Injunction restraining the Defendants and his persons &
agents from making any kind of constructions over any portion of the suit pathway and
also to restrain the Defendants to continue the construction works or to proceed with
any further construction works over the suit pathway.
(vi) A Decree for Mandatory Injunction directing the Defendants to demolish the
construction works of the building over the suit pathway illegally unauthorisedly made
by them within specified period failing which to demolish the building made by the
Defendants over the suit land by enforcement of the Decree.
(vii) A Decree for such other relief or reliefs in which the Plaintiffs are entitled as per
pleadings.
(viii) A Decree for Cost."
Schedule-C described in the plaint is claimed to be the ejmali
pathway for demarcation of which survey commissioner has been appointed
in pursuance to the direction passed by this Court in CRP No.35 of 2022
dated 5th August, 2022 which arose out of the judgment dated 31st March,
2022 passed by the learned Additional District Judge, Court No.2, West
Tripura, Agartala in Miscellaneous Appeal No.11 of 2021 by which the
order dated 5th April, 2021 passed by the learned Civil Judge, Sr. Division,
Court No.2, West Tripura, Agartala in Civil Misc.(Inj.) No.70 of 2019
arising out of the same T.S. No.96 of 2020 in the nature of an injunction
upon the defendants/petitioners herein for making further construction on the
encroached portion of the suit pathway or any portion of the suit pathway
until further order was vacated. The learned Court while disposing of the
civil revision petition by the order dated 5th August, 2022 proceeded to
observe as under:
"In view of above observations and discussions, this Court is of the considered opinion
that this petition is disposed of giving liberty to both sides as desired by them before this
Court for filing appropriate application before the Court below for finding the property
by way of demarcation in terms of their partition deed by metes and bounds. In the
event, on filing such application, the Court below shall appoint a commissioner and
obtain a report. This exercise shall be completed within a period of one month from the
date of filing of such application by both the parties. Till then, the respondents herein
shall not proceed with the construction. The Court below shall pass appropriate order
after obtaining the report from the commissioner at the earliest. It is needless to say that
both the parties shall cooperate in the above exercise. They can be present at the time of
inspection by the commissioner."
The survey commissioner was appointed to identify the ejmali
pathway as per the partition deed. Thereafter, the report of the survey
commissioner received on 27.03.2023 for demarcation of the ejmali pathway
was discarded by the order dated 7th August, 2023 (Annexure-10) as it was
not clear as to the portions of the plot and the suit property as per the
partition deed as ordered by this Court in CRP No.35 of 2022. The same
survey commissioner undertook the exercise once again pursuant to the
directions of the learned Trial Court vide order dated 7th August, 2023 and
submitted a report received on 28.11.2023 before the learned Trial Court
(Annexure-11) which correctly reveal the measurement of the suit pathway
in terms of the directions of the learned Trial Court in line with the
directions passed by this Court in CRP No.35 of 2022.
Though the survey commissioner's report was exactly in terms
of the order passed by this Court in CRP No.35 of 2022 and the directions
passed by the learned Trial Court in the order dated 07.08.2023, on the
objection of the plaintiff, the same has been discarded by the impugned
order dated 25.07.2024 by the learned Trial Court on wholly incorrect
reasonings. The learned Trial Court has thereafter proceeded to direct the
Sub-Divisional Magistrate, Sadar, West Tripura to constitute a team of three
members who are expert in this field and serving under him and to suggest
their names for purpose of appointing them as survey commissioner to
demarcate the suit land of the case.
It is submitted that the learned Trial Court has completely
misunderstood the mandate of the survey commissioner as required to be
followed in terms of the order of this Court in CRP No.35 of 2022 and the
court's own directions contained in the order dated 07.08.2023. It is
submitted that if the demarcation of the ejmali pathway is undertaken as per
the description of the suit land in Schedule-C of the plaint described by the
plaintiff and not as per the partition deed (Annexure-13) as directed by this
Court in CRP No.35 of 2022, then it would be completely misdirected and
add to the confusion as to the exact boundaries of the ejmali pathway which
is the bone of contention. Meanwhile the defendants/petitioners continue to
suffer as in terms of the order dated 5th August, 2022 in CRP No.35 of 2022
the defendants/respondents have been asked not to proceed with
construction.
Issue notice upon the plaintiff respondent and proforma
defendant/respondents under ordinary process for which requisites be filed
by 20th September, 2024.
Notice is made returnable on 7th November, 2024.
In the meantime, impugned order dated 25th July, 2024 passed
by the learned Civil Judge (Sr. Division), Court No.2, West Tripura,
Agartala in Case No. T.S 96 of 2020 shall remain stayed.
(APARESH KUMAR SINGH) CJ
DIPESH DEB Date: 2024.09.12 19:14:57
