Tripura High Court
Shri Parimal Chakraborty vs Shri Manik Sutradhar on 5 February, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 11
HIGH COURT OF TRIPURA
AGARTALA
RFA 22 of 2023
1. Shri Parimal Chakraborty,
2. Shri Samir Chakraborty,
Both are sons of late Matilal Chakraborty
of village-Tepania, P.S. R.K. Pur,
District: Gomati, Tripura
.........Defendant Appellants
Versus
Shri Manik Sutradhar,
S/o late Girindra Sutradhar,
village & P.O. Khilpara,
P.S. R.K. Pur, Udaipur,
District- Gomati, Tripura
..........Plaintiff Respondent
For the Appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate.
Mr. Suman Bhattacharjee, Advocate.
For the Respondent(s) : Mr. Somik Deb, Sr. Advocate.
Mr. P. L. Debbarma, Advocate.
Date of hearing : 21.01.2025.
Date of pronouncement
of Judgment & Order : 05.02.2025
Whether fit for reporting : Yes ______
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. S.M. Chakraborty, learned senior counsel
assisted by Mr. Suman Bhattacharjee, learned counsel appearing for
the defendant-appellants. Also heard Mr. Somik Deb, learned senior
counsel assisted by Mr. P.L. Debbarma, learned counsel appearing
for the plaintiff-respondent.
[2] The present appeal is filed under Section 96 of the Civil
Procedure Code, 1908 by the appellants against the judgment and
decree dated 24.08.2023 passed by the learned Civil Judge (Senior
Division), Court No.1, Gomati District, Udaipur, Tripura in T.S. 44 of
2021 decreeing the suit in favour of the plaintiff respondent.
[3] The brief fact of this case as enumerated in the plaint
before the Court below is that the plaintiff (respondent herein)
purchased land measuring 1.24 acres described in schedule A of the
plaint vide registered Sale deed No. 889 of 2014 dated 19.05.2014
for consideration of Rs. 14,80,000/- only from defendant Nos. 1 & 2
(appellants herein) and thereafter, also took possession of the
same. It was contended on behalf of the Plaintiff before the Court
below that he got mutation of the said purchased land in his favour
as per provisions of Section 46(1) of TLR & LR Act 1960. It was also
stated by the plaintiff that out of total land measuring 1.24 acres,
land measuring 0.84 acres is situated at Mouja Tepania and was
recorded in Khatian No. 1457 in his favour and another land
measuring 0.40 acres of land was recorded in Khatian No. 293 of
Mouja Chataria in his favour. It was further asserted by the plaintiff
that on 16.02.2015, he again purchased another 0.46 acres of Nal
class of land, surveyed in RS plot No. 198 corresponding old plot
No. 80 recorded in Khatian No. 1187 of Mouja Tepania from one Sri
Narayan Chakraborty for consideration of Rs. 2,30,000/- only,
which more particularly is described in schedule B of the plaint and
on 16.02.2016, he also took possession of the same. Thereafter,
plaintiff got mutation of the said purchased land in his name and
incorporated his name in the same Khatian.
[4] Plaintiff also stated that, defendants are his close
associates and for his livelihood, he had to leave for Kuwait keeping
his family at Khilpara. As the wife of the plaintiff was not in a
position to look after the said purchased land, he engaged the
defendants for taking care of the suit land on his behalf, with a
condition that, defendants would vacate the suit land or the
possession of the suit land as and when demanded or when the
plaintiff returned back from Kuwait. It was agreed by the plaintiff
and defendants that during their possession, defendants can
produce crops on schedule B land of the plaint and enjoy usufructs.
Since then the defendants were holding as permissive possessor of
the suit land. The plaintiff claimed that, when he returned back
from Kuwait to home on 06.08.2018, thereafter, on 15.08.2018, he
met the defendants and asked them to vacate the possession of the
suit land, but at that time, defendants refused to vacate the
possession of the suit land. It was also asserted by the plaintiff that,
defendants also denied his title over the suit land. The plaintiff also
claimed that, defendants thereby, became trespassers since from
15.08.2018 over the suit land, as defendants denied his title and
refused to part away the possession of the suit land. Thereafter,
being aggrieved, the plaintiff filed a suit before the learned Court
below for confirmation of title and recovery of possession over the
suit land.
[5] Thereafter, summons were duly served upon both the
defendants and they by filing written statement contested the suit
before the learned Court below. It was stated on behalf of the
defendants that on 13.12.2018, the plaintiff entered into an
agreement with defendant No.1 to sell .40 acres of land,
appertaining to Hal plot Nos. 938 & 939 bounded by north-
defendant No.1, south- Chandra Mohan Debnath and Nipendra
Chakraborty, East- Ayat Ali. It was also asserted by the defendants
that though the plaintiff purchased the suit land but sold out .40
acres of land out of it to defendant No. 1 by way of unregistered
deed of agreement dated 13.12.2018 and thereby, defendant No. 1
is entitled to have registered sale deed executed by the plaintiff and
in that connection defendant No. 1 also paid Rs. 2,00,000/- (two
lakh) by issuing two number of cheques vide No. 19450 & 01. It
was further asserted by the defendants that the consideration
amount for the sale of .40 acres of land by way of unregistered
deed of agreement was settled at the rate of Rs. 12,50,000/- and
defendant No.1 was always ready and willing to purchase the suit
land and also to pay the remaining amount of consideration money
to the plaintiff and the defendants, on the said grounds, prayed for
dismissal of the suit before the Court below with cost.
[6] While contesting the case being case No. Title Suit 44 of
2021, the plaintiff examined himself as PW.1 and exhibited six
number of documents in support of his claim in the suit, which were
marked as Exbt.1, Exbt.2, Exbt.3, Exbt.4 series, Exbt.5 series and
Exbt.6 series. On the other hand, from the side of the defendants,
defendant examined himself as DW. 1 and exhibited no document
from their side. Learned Court below considering the claim and
counter claim made by the parties and perusing the material
evidence on record, framed the following issues by its order dated
09.06.2022:
"(i) whether the plaintiff has any cause of action to file the suit?
(ii) whether the suit is maintainable in its present form and nature?
(iii) whether the plaintiff is entitled to get the decree for confirmation of right,
title and interest over the suit land?
(iv) whether the plaintiff is entitled to get the decree for recovery of
possession of the suit land?
(v) to what other reliefs the plaintiff is entitled?"
[7] Thereafter, on perusal of material evidence on record
and upon hearing both the parties, learned Court below finally has
decided the suit filed by the plaintiff by its judgment & order dated
24.08.2023 passed in Title Suit 44 of 2021, in the following
manner:
"......9. ORDER
In the result, the suit is decreed on contest without cost.
Accordingly, plaintiff is entitled for confirmation of right, title and interest
over the suit land described in schedule A and schedule B land of the plaint
and is also entitled for recovery of the vacant possession of the said suit land.
Hence, defendants are hereby directed to hand over the vacant possession
of the suit land to the plaintiff within 3(three) months.
Default to hand over the vacant possession of the suit land within the
period as stipulated and ordered, plaintiff is entitled to knock the door of the
Court and approach for delivery of the vacant possession of the said suit land
as per law.
Accordingly, Sr. Sheristadar of this Court is hereby directed to prepare the
decree and place the same before me for obtaining my signature and seal
within 14(fourteen) days from the date of passing of this Judgment.
Hence, the suit is hereby disposed off on contest.
Make necessary entry in the concerned TR."
[8] Aggrieved by the above-quoted order dated 24.08.2023
passed by the learned Court below, the defendant-appellants have
filed the instant appeal seeking following reliefs:
"a) Admit the Appeal
b) Issue notice upon the respondent and call for the records of the
Ld. Court below.
AND
c) After hearing this Appeal be pleased to set aside the impugned
judgment and decree dated 24-08-2023 passed in TS 44 of 2021 passed by
the Ld. Civil Judge(Senior Division), Gomati District, Udaipur Tripura.
d) In the interim stay all operations of the impugned judgment and
decree dated 24-08-2023 till disposal of Appeal......"
[9] Mr. S.M. Chakraborty, learned senior counsel appearing
on behalf of the defendant-appellants submits that the learned
Court below while passing the impugned judgment and order dated
24.08.2023, has not considered the fact that the plaintiff-
respondent made no prayer for declaration of right, title, interest
over the suit land while seeking eviction of the defendant-appellants
therefrom. It is contended that in absence of any such decree, a
person in possession cannot be evicted as per law since the
plaintiff-respondent in his plaint stated that the defendant-
appellants denied the title of the plaintiff-respondent over the suit
land. Learned senior counsel, therefore, urges this Court to set
aside the impugned judgment and order passed by the learned
Court below on 24.08.2023 and to allow the instant appeal.
To support his contention, learned senior counsel for the
appellants has placed reliance on the judgment of the Hon‟ble Apex
Court in Anathula Sudhakar versus P. Buchi Reddy and others
reported in (2008) 4 SCC 594, the relevant contends as referred
by the learned senior counsel from the said judgment read as
under:
".....13.3. Where the plaintiff is in possession, but his title to the
property is in dispute, or under a cloud, or where the defendant asserts
title thereto and there is also a threat of dispossession from the defendant,
the plaintiff will have to sue for declaration of title and the consequential
relief of injunction. Where the title of the plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for declaration, possession
and injunction.
14. We may, however, clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge to the
plaintiff's title raises a cloud on the title of the plaintiff to the property. A
cloud is said to raise over a person's title, when some apparent defect in
his title to a property, or when some prima facie right of a third party over
it, is made out or shown. An action for declaration, is the remedy to
remove the cloud on the title to the property. On the other hand, where
the plaintiff has clear title supported by documents, if a trespasser without
any claim to title or an interloper without any apparent title, merely denies
the plaintiff's title, it does not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient. Where the plaintiff,
believing that the defendant is only a trespasser or a wrongful claimant
without title, files a mere suit for injunction, and in such a suit, the
defendant discloses in his defence the details of the right or title claimed
by him, which raise a serious dispute or cloud over the plaintiff's title, then
there is a need for the plaintiff, to amend the plaint and convert the suit
into one for declaration. Alternatively, he may withdraw the suit for bare
injunction, with permission of the court to file a comprehensive suit for
declaration and injunction. He may file the suit for declaration with
consequential relief, even after the suit for injunction is dismissed, where
the suit raised only the issue of possession and not any issue of title...."
[10] On the contrary, Mr. Somik Deb, learned senior counsel
appearing on behalf of the plaintiff-respondent opposes the
contention made on behalf of the defendant-appellants. He submits
that the respondent is the original owner of the suit land since, all
his original sale-deeds, Khatians have been exhibited by the Court
below and his entitlement over the property has been confirmed by
the learned Court below. It is also submitted that once the
entitlement of the plaintiff-respondent over the suit-land is
confirmed, his right, title, interest over the property would be
declared consequently. He further contends that the defendant-
appellants neither have disputed the sale-deeds/khatians of the
plaintiff-respondent nor have produced any document showing their
entitlement over the suit property. He, therefore, urges this Court
to dismiss the present appeal.
[11] Heard learned counsel for the respective parties. Perused
the material evidence on record.
[12] Since, during argument, it is contended on behalf of the
defendant-appellants that the plaintiff-respondent filed the plaint
before the learned Court below for confirmation of title and recovery
of possession over suit land and no prayer for declaration of title
was made, the definitions of the words „confirmation‟ and
„declaration‟ as defined in the Black‟s Law Dictionary are extracted
here-under:
Confirmation:
"confirmation, n. (14c) 1. The act of giving formal approval; the ratification
or strengthening of an earlier act <Senate confirmation hearings>. 2. The
act of verifying or corroborating; evidence that verifies or corroborates
<the journalist sought confirmation of the district attorney's remarks>. 3.
The ratification of a voidable estate; a type of conveyance in which a
voidable estate is made certain or a particular estate is increased <deed of
confirmation>. 4. The act by which a court enters judgment on an
arbitration award. The result of confirmation is that the award has the
same force as any other court judgment. 5. Civil law. A declaration that
corrects a null provision of an obligation in order to make the provision
enforceable. 6. Commercial law. A bank's agreement to honor a letter of
credit issued by another bank......."
Declaration:
"declaration, n. (15c) 1. A formal statement, proclamation. or
announcement, esp. one embodied in an instrument. Cf. AFFIDAVIT....."
From the above quoted definitions, we can understand
the literary meaning of the terms „confirmation‟ and „declaration‟.
[13] Admittedly, in this case, the present defendant-
appellants could not show their right, title and interest over the suit
land by adducing any cogent oral/documentary evidence on record
excepting the plea of possession.
[14] In course of hearing, learned senior counsel, Mr. S.M.
Chakraborty in usual fairness submitted that the respondent
plaintiff before the learned Court below, did not seek any relief
under Section 34 of the Specific Relief Act, 1963. For convenience,
the relevant provision of Section 34 of the Specific Relief Act, 1963
is mentioned herein-below:
"34. Discretion of court as to declaration of status or right.- Any
person entitled to any legal character, or to any right as to any property,
may institute a suit against any person denying or interested to deny, his
title to such character or right, and the court may in its discretion make
therein a declaration that he is so entitled, and the plaintiff need not in
such suit ask for any further relief:
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so."
[15] Herein, in the given case, the plaintiff-respondent filed
the suit for confirmation of title and recovery of possession over suit
land under Section 5 of the Specific Relief Act, 1963 without seeking
any relief for declaration of title as required under Section 34 of the
said Act. The plaintiff-respondent in his plaint specifically, in Para
Nos.5 and 7, stated that the defendants of the original suit i.e. the
appellants herein denied his title over the suit land. Hence, in view
of the principle of law laid down by the Hon‟ble Apex Court in the
afore-noted case cited supra, this Court is of the considered view
that the learned Court below committed error in granting decree in
favour of the plaintiff-respondent without asking him for seeking
declaration of title under Section 34 of the Specific Relief Act.
[16] In view of the above facts and circumstances, this
present appeal is allowed and the impugned judgment and decree
dated 24.08.2023 delivered by the learned Civil Judge (Senior
Division), Court No.1, Gomati District, Udaipur, Tripura in T.S. 44 of
2021 is hereby set aside. The matter is remanded back to the
learned Trial Court with a direction to give an opportunity to the
plaintiff-respondent to seek relief for declaration of title as required
under Section 34 of the Specific Relief Act by amending the plaint
and thereafter, to deliver a fresh judgment after making proper
issues and also after taking evidence of both the sides afresh, in
accordance with law. The entire exercise shall be made within a
period of six months from the date of delivery of this judgment.
With the above observation and direction, the instant
appeal is disposed of. As a sequel, miscellaneous application(s),
pending if any, shall also stand closed.
Send down the LCR alongwith the copy of this judgment.
B. PALIT, J T. AMARNATH GOUD, J
Sabyasachi G.
SABYASACHI Digitally signed by
SABYASACHI GHOSH
Date: 2025.02.07 14:25:04
GHOSH +05'30'
