Tripura High Court

Smt. Niva Datta vs Smt. Laxmi Patari (Datta) on 23 April, 2025

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                       HIGH COURT OF TRIPURA
                             AGARTALA

                             CRP No.22 of 2025

1.     Smt. Niva Datta, W/o Late Nripendra Kumar Datta, resident of Beltila,
       P.O. & P.S. Belonia, District South Tripura, Pin-799155.
2.     Smt. Chandana Datta (Das), D/o Late Nripendra Kumar Datta, W/o -
       Shri Dilip Kr. Das, resident of North Kalabaria, P.O.Maichara, District-
       South Tripura.
3.     Shri Kartik Datta, S/o Late Nripendra Kumar Datta, resident of Beltila,
       P.O. & P.S. Belonia, District South Tripura, Pin-799155.
4.     Smt. Bandana Datta (Das), D/o Late Nripendra Kumar Datta, W/o Late
       Maik Das, resident of village - Jayanti Bazar, P.O. Gourangabazar, P.S.
       Puran Rajbari, District -South Tripura, Pin-799157.
5.     Shri Sanjib Kumar Datta, S/o Late Nripendra Kumar Datta, resident of
       Beltila, P.O. & P.S. Belonia, District -South Tripura, Pin-799155.
6.     Shri Tuton Datta, S/o Late Nripendra Kumar Datta, resident of Beltila,
       P.O. & P.S. - Belonia, District-South Tripura, Pin-799155.
                                                           ......... Petitioner(s).
                                  VERSUS
1.     Smt. Laxmi Patari (Datta), W/o Late Monoj Kanti Datta.
2.     Smt. Poulami Datta, D/o Late Monoj Kanti Datta.
3.     Sri Pallab Datta (Minor), S/o Late Monoj Kanti Datta.
       All are residents of Saltilla, P.O & P.S. - Belonia, District- South
       Tripura.
4.     Smt. Abha Datta (Majumder), W/o Sri Rakhal Majumder, resident of
       Village - Mirja, P.S. R.K. Pur, District - Gomati Tripura.
5.     Smt. Mamata Datta (Roy), W/o Sri Nepal Roy of Rajnagar, P.S.
       Santirbazar, District - South Tripura.
6.     Smt. Niva Datta (Majumder), W/o Sri Biraj alias Bijoy Majumder,
       Village -Fulkumari, P.S. - R.K. Pur, District- Gomati Tripura.
                                                         ......... Respondent(s).

For Petitioner(s) : Mr. Saktimoy Chakraborty, Sr. Advocate, Mrs. Pinki Chakraborty, Advocate.

For Respondent(s) : None.

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH

Order 23/04/2025

Heard Mr. Saktimoy Chakraborty, learned senior counsel,

assisted by Mrs. Pinki Chakraborty, learned counsel for the petitioners.

2. Title Suit No.09/1998 which was instituted for a declaration of

right, title and interest of the plaintiffs/respondents over the suit land was

decreed in his favour vide judgment dated 09.06.2005 passed by the learned

Civil Judge (Jr. Division), Belonia, South Tripura (Annexure-3) in the

following manner:

"7. In fine I order as follows:-

i) That I hereby declared the right, title and interest of the plaintiffs over the suit land. Also they are entitled for recovery of possession of the suit land removing all the obstruction created by the defendant.

ii) The plaintiffs are entitled to get a decree for correction of R/S Khatian No.468 by omitting the name of defendant and by inserting the names of plaintiff as they are legal heirs of Late Sudhanshu Bimal Datta.

iii) The Director of Land Records and Settlement is hereby directed to incorporate the name of the plaintiffs in the Khatian as per correction.

iv) Cost of the suit are to be born by the parties to the suit.

v) Sheristadar of this Court is hereby directed to prepare decree accordingly.

vi) This case is disposed of accordingly on contest with my above observation.

vii) Make Necessary entries in the T.R."

3. The defendants preferred the Title Appeal No.12/2005, being

aggrieved by the impugned judgment rendered by the learned trial Court. The

Title Appeal No.12/2005 was disposed of by judgment dated 11.08.2006

(Annexure-4) in the following manner:

"13. In view of my above findings over all these issues, I consider that respondents are not entitled to get recovery of possession of the land, but only their limited right and interest over the suit property is declared and as consequential relief, they are entitled to get compensation to the extent of 60% of the present market value of the entire suit land under Khatian No.468. On receipt of 60% of the market value of the entire suit property, respondents-plaintiffs shall execute the sale deed in favour of the appellant or, appellant to deliver 60% of suit property to plaintiff-respondents.

So, the order of the Court below declaring the title and recovery of khas possession, correction of the revenue records is set aside.

Appeal is partly allowed. As per the decision of this Appellate Court, the limited right and interest of the respondents is declared and as consequential relief 60% price of the present market value of the suit property as compensation is given to the respondents or appellant is to hand over vacant possession of 60% of suit property to the respondents.

Decree is to be modified accordingly.

Send back the L.C. record with a copy of this judgment.

This Title Appeal is thus disposed of.

Announced."

4. The plaintiffs being aggrieved by judgment passed in Title

Appeal No.12/2005, preferred Regular Second Appeal No.46 of 2006 before

this Court. The said appeal was disposed of vide judgment dated 30.09.2015

(Annexure-5) inter alia holding as under:

"18. Article 65 of the Schedule to the Limitation Act provides limitation of twelve years for possession of immovable property based on title. The period of limitation starts running from the date when the possession of the defendant becomes adverse to the plaintiff. As far as the present case is concerned, the possession of Nripendra Kr. Datta became adverse to the possession of Sudhangshu Bimal Datta on the date when he filed the suit claiming that he was the adopted son of Nishi Kanta Datta and that he was the true owner of the suit land. Limitation started running from that date and this period of limitation is not interrupted by the mere fact that he had filed a suit. Nripendra Kr. Datta had filed a suit to establish his title. He may have failed to prove his title but it is an admitted fact that the possession remained with him. Therefore, his possession was adverse to the true owner, i.e. Sudhangshu Bimal Datta. The proper course for Sudhangshu Bimal Datta was to have filed either a counter claim in the suit filed by Nripendra Kr. Datta or to have filed a separate suit and this suit could be filed within 12(twelve) years of the title becoming adverse.

19. In view of the above discussion, I hold that the learned Court below was fully justified in holding that the adverse possession of Nripendra Kr. Datta had fructified into full title. In fact, the learned lower appellate Court was not justified in holding that the plaintiffs were entitled to 60% of the market value of the land but since that portion of the decree has not

been challenged by the respondents, this Court cannot set aside the same.

20. Therefore, I find no merit in the appeal which is accordingly dismissed. No order as to costs."

5. Thereafter, Ex(T) No.15/2016 was preferred by decree

holders/respondents. Petitioners/judgment debtors have approached this Court

in the present revision petition under Article 227 of the Constitution of India

against the order dated 27.02.2025 (Annexure-8) passed by learned Civil

Judge (Jr. Div.), Belonia, South Tripura i.e. the Executing Court in Ex(T)

No.15/2016 whereby the petition dated 13.02.2025 (Annexure-7) preferred by

them have been rejected. The judgment debtors had stated in their application

that they are residing for a long time in the suit land and have also

constructed their dwelling huts in the suit land more than 25 years ago. If the

building is demolished, they become homeless. They are residing within the

30% area of the total land, and 70% land is still in vacant position. Therefore,

they prayed to the learned Court to hand over 60% vacant land to the decree

holders from the suit land without destroying the homestead building of the

judgment debtors. Learned executing Court rejected the plea on the ground

that it cannot go behind the decree and re-examine the merits of the original

case. Being aggrieved, the petitioners are before this Court.

6. Mr. Saktimoy Chakraborty, learned senior counsel for the

petitioners submits that the learned executing Court has summarily rejected a

petition by the judgment debtors raising genuine grounds which do not come

into the way of execution of the decree by transfer of 60% of the vacant suit

land. If the decree could be executed by delivery of 60% of the vacant land of

the judgment debtors, there is no reason why the learned executing Court

would insist upon including the dwelling house also, which demonstrably is

beyond the 60% of the vacant land of the scheduled suit land. In that way, the

interest of the decree holders and that of the petitioner/judgment-debtors both

be protected. Therefore, a prayer for interference has been made.

7. I have considered the submission of the learned senior counsel

for the petitioners and taking note of the relevant materials placed from

record, including the operative part of the judgment rendered by the learned

trial Court, the first appellate Court, and the second appellate Court. The

decree holder is pursuing execution of the modified decree as rendered by the

learned appellate Court dated 11.08.2006, drawn in terms of the judgment

and order passed by the first appellate Court in Title Appeal No.12/2005

dated 11.08.2006. The modified decree is also extracted hereunder:

"In view of my above findings over all these issues, I consider that respondents are not entitled to get recovery of possession of the land. But only their limited right and interest over the suit property is declared and as consequential relief, they are entitled to get compensation to the extent of 60% of the present market value of entire suit land under Khatian No.468. On receipt of 60% of the market value of the entire suit property, respondents--plaintiffs shall execute the sale deed in favour of the appellant or, appellant to deliver 60% of suit property to plaintiff- respondents.

So, the order of the Court below declaring the title and recovery of khas possession, correction of the revenue records is set aside.

Appeal is partly allowed. As per the decision of this Appellate Court, the limited right and interest of the respondents is declared and as consequential relief 60% price of the present market value of the suit property as compensation is given to the respondents or appellant is to the hand over vacant possession of 60% of suit property to the respondents.

Decree is to be modified accordingly.

The Title Appeal is thus disposed of.

Announced."

8. As it appears that the petition dated 13.02.2025 preferred by the

judgment debtors (Annexure-7) lacks any description of 60% of the vacant

land which he claims to be vacant out of the total suit land. There is no

description of the Khatian number, Plot number or the area which could

comprise 60% of vacant land that he claims to be available for delivery to the

decree holders, leaving aside the remaining portion of the suit land containing

his dwelling house also.

9. It appears from the modified decree passed by the appellate Court that

while partly allowing the appeal the limited right and interest of the

respondents have been declared and as a consequential relief 60% price of the

present market value of the suit property as compensation is to be given to the

respondents or appellant is to hand over vacant possession of 60% of suit

property to the respondents.

10. The absence of any description of the vacant land comprising of

60% out of the suit land decreed in favour of the plaintiffs/respondents

herein, the learned trial Court had rightly refused to accept the plea raised by

the judgment debtors at such a belated stage of the execution proceedings

which is pending since 2016. In such circumstances, this Court is not inclined

to interfere in the impugned order. However, since the executing Court has a

task of ensuring the execution of the modified decree passed by the appellate

Court which mandates consequential relief of 60% of the present market

value of the suit property as compensation to the respondents/decree holders

or delivery of vacant possession of 60% of suit property to the respondents,

one more opportunity may be granted to the judgment debtors to clearly

demonstrate before the executing Court that the decree is executable by

delivery of possession of 60% of their vacant land without touching the

dwelling house. Since the execution proceeding is pending since 2016, the

petitioners are allowed one opportunity to move such an application within 10

days from today. The learned executing Court would consider the prayer after

due opportunity to the decree holders in accordance with law within a period

of two weeks thereafter, so that the execution proceedings are not delayed or

held up further at the instance of the judgment debtors.

11. However, it is made clear that this Court has made no

observation on the merits of the case of the parties. It is upon to the executing

Court to ensure that the decree is executed in a time bound manner keeping

into regard the judgment rendered by the Apex Court in the Case of Rahul S.

Shah Versus Jinendra Kumar Gandhi and others reported in (2021) 6 SCC

418.

12. Accordingly, the instant petition is disposed of with the

aforesaid observations. Pending application(s), if any, shall stand disposed of.

(APARESH KUMAR SINGH), CJ

Munna S MUNNA SAHA Digitally signed by MUNNA SAHA Date: 2025.04.25 17:34:09 +05'30'