Tripura High Court
Sri Pramesh Chandra Das vs Sri Manik Das on 27 February, 2025
HIGH COURT OF TRIPURA
AGARTALA
RSA No.19 of 2023
Sri Pramesh Chandra Das,
Son of late Paresh Chandra Das,
aged about 79 years,
resident of Bagbassa,
Sub-Division, P.O. & PS: Dharmanagar,
District: North Tripura
----Plaintiff-Appellant (s)
Versus
1. Sri Manik Das,
Son of late Parendra Das,
Resident of Sanicherra,
P.S. Churaibari, District: North Tripura
2. Sri Gobinda Das,
Son of late Parendra Das,
resident of Sanicherra, P.S. Churaibari,
District: North Tripura
----Defendant-Respondents (s)
For Appellant(s) : Mr. Sankar Lodh, Adv.
For Respondent(s) : Mr. Dipankar Sharma, Adv.
Date of Hearing : 21.02.2025
Date of delivery of
Judgment and Order : 27.02.2025
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal under Section 100 of CPC is preferred
challenging the judgment dated 02.02.2023 and decree
dated 04.02.2023 delivered by Learned District Judge,
North Tripura, Dharmanagar in connection with Case No.
Title Appeal No.26 of 2018. By the said judgment and
decree the Learned first appellate court has reversed the
judgment dated 16.07.2018 and decree dated 31.07.2018
delivered by Learned Civil Judge (Sr. Division), North
Tripura, Dharmanagar in connection with Case No.Title Suit
(Eviction) 01 of 2015.
02. Heard Learned Counsel Mr. S. Lodh appearing on
behalf of the appellant-plaintiff and also heard Learned
counsel Mr. D. Sharma appearing on behalf of the
defendant-respondents.
03. Before proceeding with the merit of appeal let us
discuss about the subject matter of dispute amongst the
rival parties. The appellant-plaintiff on 07.05.2015 filed a
suit for declaration and for recovery of possession against
the defendant-respondents before the Learned Civil Court
(Sr. Division) in respect of the suit land measuring 0.21
acres as mentioned in the schedule of the plaint recorded
under finally published khatian No.85 under Mouja
Bagbassa, Tehshil-Sanicherra, Revenue Circle & Sub-
Division-Dharmanagar alleging inter alia that the appellant-
plaintiff was/is of the suit land along with other lands by
virtue of purchased through registered sale-deed vide No.1-
1631 dated 09.04.1985. After purchase of the suit land the
plaintiff-respondents took possession of the suit land and
applied for mutation along with other landed properties and
ultimately the said landed properties including the suit land
have been mutated in the name of appellant-plaintiff in
Khatian No.85 under Mouja-Bagbassa. According to the
appellant-plaintiff the suit land is a viti (tilla) type of land,
so for the purpose of construction of residential unit therein
he started to make improvement of the suit land by cutting
soils etc and also by producing fruit bearing trees therein.
The respondent-defendants with a view to grab the suit land
on 01.08.2015 in the morning at about 10.00 a.m. when the
appellant-plaintiff and his persons were repairing the
bamboo fencing on the boundaries of the suit land that time
the defendant-respondents along with some other anti-
social forcibly/most illegally entered into the suit land by
breaking the bamboo fencing on the southern boundary of
the suit land and severed some valuable trees and plants
like Mango, Jackfruit, Banana etc. Thereafter the
respondent-defendants started to construct a hut on the
suit land despite objection raised by the appellant-plaintiff
and his workers and after that the respondent-defendants
forcefully constructed a bamboo fencing with tin roof hut
measuring 8 cubits (North to South) x12 cubits (East to
West) to the northern portion of the suit land within a
period of 15 days and subsequently converted the said hut
with brick wall. On 15.03.2015 in the morning at about
10.00 am the appellant-plaintiff requested the defendant-
respondents to vacate the suit land as the same was
urgently needed for the own purpose of the appellant-
plaintiff, but the defendant-respondents became angry and
refused to vacate the suit land. After that the appellant-
plaintiff reported the matter to the local elders but they
failed to mitigate the matter. Later on, the matter was
brought to the notice of the Officer-in-charge of Churaibari
Police Station in writing on 23.03.2015, but no action was
taken. Hence the appellant-plaintiff filed the suit for
declaration and for possession of the suit land.
04. The respondent-defendants after receipt of notice
from the court appeared before the Learned Trial Court and
filed written statement and also with the leave of the court
filed amended written statement. In the written statement
respondent-defendants denied all the assertions made by
the appellant-plaintiff and pleaded that the respondent-
defendants along with their brother Gopal Das had
purchased some landed properties from the appellant-
plaintiff vide registered deed bearing No.1-1877 dated
24.04.1990 which was recorded in Khatian No.189, Sabek
Plot No.20 corresponding to Hal plot No.12 measuring 0.12
satak and a separate plot of land measuring 0.14 satak
recorded in the same khatian under Sabek plot No.21(p)
corresponding to Hal Plot No.13 in total land measuring 0.26
satak. Later on, the respondent-defendants and their
brother Gopal Das got their purchased land mutated in their
names under Khatian No.372, Touji No.363 of Mouja
Bagbassa, Tehshil Kachari-Sanicherra, Sub-Division &
Revenue Circle-Dharmanagar, vide MR No.75 of 1992.
However, according to the respondent-defendants a part of
sabek plot No.21 of Mouja-Bagbassa was acquired by
Government of Tripura for construction of public road under
PWD Department. It was further pleaded that since
purchase the respondent-defendants and their brother
have/had been possessing the same land by constructing a
building on the said plot of land and they have also running
bakery business on a part of that land. It was further
submitted that the respondent-defendants have not
possessed any extra land beyond the purchased land which
they purchased from the appellant-plaintiff. They also urged
before the court to find out the actual possession of the suit
land by appointing a survey commissioner and prayed for
dismissal of the suit with costs. However, upon the
pleadings of the parties following issues were framed:
"(i) Whether the suit is maintainable in its present
form?
(ii) Whether there is any cause of action for filing of
the suit?
(iii) Whether the plaintiff has right, title and interest
over the suit land?
(iv)Whether the plaintiff is entitled to get the decree
for recovery of possession of suit land by evicting the
defendants No.1, 2 & 3 and their persons therefrom by
demolishing and abolishing the constructions made by
the defendants at the costs of them and by removing
electricity connection installed therein?
(v)Whether the defendants are entitled to get a decree
declaring that the defendants have right, title,
interests and possession over the suit land vide
registered sale deed executed by the plaintiff dated
24.04.1990?
(vi)To what other relief/reliefs the parties are
entitled?
05. To substantiate the issues both the parties have
adduced oral/documentary evidence on record which are as
follows:
(A) Plaintiff's Exhibits:-
i. Exbt.1- Copy of the registered sale deed bearing No.1-
1631 dated 09.04.1985 in 10 sheets, certified by the
Copying Department of the Court.
ii. Exbt.2 - Copy of the Khatian bearing No.85 of Mouja-
Bagbassa, Tehshil-Sanicherra, Revenue Circle and Sub-
Division Dharmanagar, certified by the Copying
Department of the Court.
iii.Exbt.3 - Copy of the trace map of Mouja-Bagbassa
No.22 sheet No.1, certified by the Copying Department of
the Court.
(B) Defendants' Exhibits:-
i. Ext A (SO)- The original registered sale deed bearing
No.1-1877 dated 24.04.1990 in four sheets.
ii. Ext B- The certified copy of khatian bearing No.372 of
Mouja-Bagbassa, Tehshil-Sanicherra, Revenue Circle and
Subdivision Dharmanagar, in two sheets.
iii. Ext C- The certified copy of the trace map of Mouja-
Bag bassa No.22 sheet No.1, appertaining to Dag No.12,
(C) Ext.s produced by witness : Nil.
(D) Court Ext.s : Nil.
(E) Plaintiff's Witness:
(i) P.W.1 : Sri Pramesh Chandra Das
(ii) P.W.2 : Sri Haridas Sinha
(iii) P.W.3 : Md Rahamat Ali
(F) Defendants' witnesses:
(i) D.W.1: Sri Govinda Das
(ii) D.W.2 : Sri Gopal Das
(iii) D.W.3 : Sri Satyajit Malakar
(G) Court's Witnesses: Nil
06. Finally on conclusion of trial Learned Trial Court
decreed the suit in favour of the appellant-plaintiff. The
operative portion of the judgment and order dated
16.07.2018 runs as follows:
"As a result it is declared that the plaintiff has right, title
and interest over the suit land as clarified in the analysis
above and it is directed that the defendants and their
persons shall be evicted therefrom abolishing all the
constructions made by the defendants therein and the
same shall be restored with the plaintiff."
07. Challenging that judgment the defendants of the
original suit as appellant preferred an appeal before the
court of Learned District Judge, North Tripura, Dharmanagar
which was numbered as Title Appeal No.26 of 2018 and
after prolonged hearing Learned First Appellate Court by
judgment dated 02.02.2023 and decree dated 04.02.2023
was pleased to set aside the judgment and decree of the
Learned Trial Court. The operative portion of the judgment
of the Learned First Appellate Court runs as follows:
"10. In view of the aforesaid discussion and findings, the
appeal preferred by the defendant-appellants under
Section 96 of the Code of Civil Procedure read with Order
41 of CPC is hereby allowed.
The impugned judgment dated 16.07.2018 followed by
the impugned decree dated 31.07.2018 passed by Ld.
Civil Judge (Senior Division), Dharmanagar, North
Tripura, Court No.2, in Title Suit (Eviction) 01 of 2015 are
hereby set aside.
The parties shall have to bear their own costs.
Senior Sheristadar is hereby directed to draw an
appellate decree within 15 days from the date of
pronouncement of this judgment.
This Title Appeal is accordingly disposed off on contest.
Send back the L.C. Record along with a copy of this
judgment to the Ld. Trial court."
08. Being dissatisfied with the judgment of the
Learned First Appellate Court the original plaintiff as
appellant has preferred this appeal before the High Court.
However, at the time of admission of appeal by order dated
12.04.2024, the following substantial questions of law were
formulated:
(i) Whether the amendment of plaint as made by the
appellant vide order dated 01.03.2024 will operate
retrospectively leading the judgment of the First
Appellate Court perverse.
(ii) Whether the impugned judgment of the First
Appellate Court was perverse for non application of
provision of Order XXVI Rule 9 CPC by itself or even by
resorting to the provision of Order XLI Rule 23 CPC.
(iii) The appeal may also be heard on any other
substantial question(s) of law at the time of hearing.
09. In course of hearing of argument Learned
counsel Mr. S. Lodh appearing for the appellant first of all
drawn the attention of the court that in the original plaint
through bona fide mistake the appellant-plaintiff in para
No.5 wrongly mentioned the date of dispossession from the
the suit land as 01.08.2015 in place of 01.08.2014. But in
this regard the appellant-plaintiff before the Learned Trial
Court did not take any step for amendment of the plaint.
However, during trial before the Learned Trial Court at the
time of recording evidence the appellant-plaintiff rectified
the error by adducing oral evidence and took the plea that
the respondent-defendants dispossessed the appellant-
plaintiff from the suit land on 01.08.2014 not on
01.08.2015. However, based on the evidence on record
Learned Trial Court finally decreed the suit in favour of the
appellant-plaintiff, but this fact was not appreciated and
accepted by Learned First Appellate Court. So by the
judgment dated 02.02.2023 Learned First Appellate Court
reversed the judgment made by Learned Trial Court. It was
further submitted that the said error was unintentional and
there was no wilfull laches on the part of the appellant-
plaintiff to quote the date as 01.08.2015 in place of
01.08.2014. However, before the High Court the appellant-
plaintiff sought this relief and by order dated 01.03.2024 his
prayer for amendment was allowed by this court and
accordingly plaint was amended. Learned counsel for the
appellant further submitted that the appellant-plaintiff had a
very good prima facie case and the Learned Trial Court
below considering the oral/documentary evidence on record
rightly decreed the suit in favour of the appellant-plaintiff,
but the Learned First Appellate Court without any basis mis-
interpreted and mis-appreciated the evidence on record of
the appellant-plaintiff and came to the observation that the
Learned Trial Court at the time of delivery of judgment
travelled beyond the pleading and finally reversed the
decree of the Learned Trial Court for which the interference
of the court is required.
10. On the other hand, Learned counsel for the
defendant-respondents submitted that there was serious
lapses on the part of the appellant-plaintiff and before the
Learned Trial Court no step was taken by the appellant-
plaintiff for amendment of plaint, even before the Learned
First Appellate Court also no step was taken by the
appellant-plaintiff in this regard. So the Learned First
Appellate Court rightly reversed the judgment on the
ground that at the time of delivery of judgment Learned
Trial Court did not consider the said fact and also did not
consider the evidence on record of the appellant-plaintiff
properly and urged for dismissal of this appeal upholding
the judgment of the Learned First Appellate Court. It was
further submitted that no substantial questions of law leans
in favour of the appellant of this case so the appellant-
plaintiff is not entitled to the relief in this appeal and further
submitted that the appellant-plaintiff both by
oral/documentary evidence on record failed to prove his
right title and interest and possession over the suit land. So
Learned First Appellate Court rightly reversed the judgment.
11. I have heard both the sides at length and
perused the judgment of the Learned First Appellate Court
as well as the Learned Trial Court. Admittedly, the
appellant-plaintiff before the Learned Trial Court or to the
Learned First Appellate Court did not take any step for
amendment of the plaint in respect of the date when the
appellant-plaintiff was alleged to be dispossessed by the
respondent-defendants from the suit land. However, on the
approach of the present appellant this High Court as already
stated by the order dated 01.03.2024 was pleased to allow
the application for amendment of plaint filed by the
appellant-plaintiff and accordingly the plaint was amended.
It is also the admitted position that before the Learned Trial
Court the appellant-plaintiff at the time of evidence took the
plea that he was dispossessed from the suit land by the
respondent-defendants on 01.08.2014. From the evidence
on record further it appears that the present respondent-
defendants in course of their cross-examination did not take
any defence to rebut the said date of alleged dispossession
i.e. on 01.08.2014 in place of 01.08.2015. Now after the
amendment of the plaint by this High Court there remains
nothing for the respondent-defendants that the date of
cause of action was untrue. Although it is the admitted
position that no such step in this regard was taken by the
appellant-plaintiff either before the Trial Court or before the
Learned First Appellate Court.
12. On perusal of the plaint submitted by the
appellant-plaintiff before the Learned Trial Court it appears
that the suit land comprised land measuring 0.21 acres
appertaining to CS Plot No.13 of Khatian No.85 under Mouja
Bagbassa, Tehshi Kachari Sanicherra, Revenue Circle-
Dharmanagar. It is also the admitted position that the
appellant-plaintiff through registered deed No.1-1631 dated
09.04.1985 purchased total land measuring 3 acres lunga,
viti, bastu chara class of land from one Shri Niranjan
Chandra Acharjee. Although the certified copy of the said
document was marked as Exbt.1 before the Learned Trial
Court and later on purchased land which comprised the suit
land mutated in his name in Khatian No.85 under Mouja-
Bagbassa. The appellant-plaintiff also relied upon the trace
map which was marked as Exbt.3.
13. On the other hand, it was the case of the
respondent-defendants that they purchased some landed
property from the appellant-plaintiff vide registered deed
bearing No. 1-1877 dated 24.04.1990 bearing holding
No.76, Khatian No.189, Sabek Plot No.20 corresponding to
Hal Plot No.12 land measuring 0.12 acres classified as lunga
and old CS Plot No.21(p) corresponding to Hal Plot No.13,
land measuring 14 sataks classified as viti tilla in total land
measuring 0.26 acres bounded on the North by themselves,
south by PWD road, East by plaintiff and West by Shishir
Barman, possessor and before the Learned Trial Court the
respondent-defendants relied upon certain documents like
sale-deed bearing No.1-1877 dated 24.04.1990 which was
marked as Exbt.A(SO) and also relied upon certified copy of
khatian bearing No.372 under Mouja Bagbassa Tehshil
Sanicherra marked as Exbt.B and also the certified copy of
trace map under Mouja-Bagbassa No.22, Sheet No.1,
Tehshil Sanicherra, comprising CS Plot Nos.13/1855 marked
Exbt.7. As already stated the purchased land of the
appellant-plaintiff was mutated. It appears that the land
purchased by the appellant-plaintiff measuring 0.26 acres
was recorded in Khatian No.372 in two separate plots
comprising old CS Plot No.20, Hal CS Plot No.12 land
measuring 0.12 acres, old CS Plot No.21(p) corresponding
to present CS Plot No.13/1855, land measuring 0.14 acres
and which was mutated vide MR Case No.75/1992. Further,
on perusal of the Khatian No.85 standing in the name of
appellant-plaintiff it appears that the suit land measuring
0.21 acres has been recorded in the name of the appellant-
plaintiff in Khatian No.85 through MR Case No.75/1993
comprising old CS Plot No.21(p) corresponding to Hal CS
Plot No.13 measuring 0.21 acres. Thus it appears by way of
mutation two separate plots have been shown in the trace
map, one is 13 comprising land measuring 0.21 acres and
another is 13/1855 comprising land measuring 0.14 acres.
From the case record it appears that there is no dispute on
record amongst the rival parties in respect of purchase of
land by the appellant-plaintiff from said Niranjan Chandra
Acharjee and also regarding transfer of land by the
appellant-plaintiff in favour of the respondent-defendants.
The respondent-defendants in their written statement
specifically stated that the respondent-defendants have no
claim over the land of the appellant-plaintiff beyond their
purchased land and this fact has been admitted by the
respondent-defendants through their evidence on record
before the court.
14. Situated thus, it appears that the respondent-
defendants could not show any better title than appellant-
plaintiff over the suit land by adducing oral/documentary
evidence on record. However, on perusal of the judgments
of both the courts below it appears that both the parties
before the Learned Trial Court could not prove their title
deeds in accordance with the provisions of the Indian
Evidence Act and the Learned Trial Court below at the time
of marking exhibits of the documents relied upon by the
parties also could not follow the relevant provisions of the
Indian Evidence Act and marked those documents and in
this regard from the judgment of the Learned Trial Court it
appears that there was no clear explanation by the Learned
Trial Court at the time of delivery of judgment. As already
stated the appellant-plaintiff before the Learned Trial Court
or to the Learned First Appellate Court did not take any step
for amendment of the plaint and the Learned Trial Court at
the time of delivery of judgment did not consider the said
fact just on the basis of oral evidence on record decreed the
suit. Although the respondent-defendants before the
Learned Trial Court at the time of recording evidence did not
dispute anything in this regard thus they have estopped
from raising this point at this stage. Learned First Appellate
Court also considered the said fact but did not say anything
regarding proving of documents by the parties to the suit.
Thus it appears that both the courts below ignored the
relevant provisions of the Indian Evidence Act at the time of
delivery of judgment. In the meantime the plaint has been
amended as per order of the court dated 21.03.2024 and
necessary amendment has been made in the plaint. So this
court is of the considered view that the matter should be
remanded back to the Learned Trial Court to give
opportunity to both the parties to adduce their evidence
afresh and to deliver fresh judgment in accordance with law.
The document should be exhibited as per relevant
provisions of Section 65 and Section 67 of the Indian
Evidence Act.
15. In view of the above, this present appeal is
disposed of. The judgment delivered by both the courts
below i.e. the judgment dated 02.02.2023 and decree dated
04.02.2023 of the Learned First Appellate Court in
connection with Case No. Title Appeal No.26 of 2018 and
also the judgment dated 16.07.2018 and decree dated
31.07.2018 in connection with Case No.T.S.(Eviction) 01 of
2015 passed by Learned Civil Judge (Sr. Division),
Dharmanagar, North Tripura are hereby set aside. The suit
is remanded back to the Learned Trial Court with a direction
to take evidence of both the parties afresh both by
oral/documentary in accordance with law and thereafter to
deliver afresh judgment. If the Learned Trial Court deems it
necessary in that case the Learned Trial Court may appoint
a Survey Commissioner to identify the suit land. The entire
exercise shall be made at an earliest convenience. Both the
parties shall appear before the Learned Trial Court on
26.03.2025.
Since the case is disposed of, so no order is
passed on the communication of Learned Addl. District
Judge, North Tripura, Dharmanagar and the case records be
transmitted to the Learned Courts below immediately.
With this observation, this present appeal is
disposed of.
Prepare the decree accordingly. Also send down
the LCRs along with a copy of this judgment.
JUDGE
MOUMITA MOUMITA DATTA
DATTA 02:37:16 +05'30'
Moumita
