2) Sri Ratneswar Kar Chowdhuri,
son of Lt. Jyotsnamoy Kar Chowdhuri,
a resident of Village-Sindhuk Pathar,
P.O. & P.S. Manu Bazar, District-South Tripura
----Defendant No.3/Pro-Respondent(s)
[---
_____________________________________________________
For Appellant (s) : Mr. P.K. Dhar Sr. Adv.
Mr. R. Debnath, Adv.
Mrs. Priya Saha, Adv.
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Sabroom in connection with Case No.T.A.01 of 2022. By the said judgment and
Learned Civil Judge, Senior Division, Belonia, South Tripura on 05.05.2018.
[2] Heard Mr. P.K. Dhar, Learned senior counsel assisted by Mr. R.
Debnath, Learned counsel and Mrs. Priya Saha, Learned counsel appearing on
behalf of the appellant-defendants and also heard Mr. T.D. Majumder, Learned
senior counsel assisted by Ms. R. Debbarma, Learned counsel appearing on
the present appeal under Section 100 of CPC is filed before this High Court.
of the plaint and also for recovery of possession by evicting the defendants i.e.
the appellants herein from the land as mentioned in Schedule-C of the plaint.
Judge, Senior Division, South Tripura, Belonia. The case of the respondent-
plaintiff was in short is that the plaintiff of the original suit purchased the suit
owner. In the year 1994 the defendants of the original suit i.e. the appellants
over the land as and when asked for by the respondent-plaintiffs. But
defendants i.e. the appellants herein to vacate the land for their personal
necessity, the appellants refused to do the same. After that, notice was issued
days, rather, the appellants continued to possess the same. Hence, under the
Court as stated above. In the said suit, the present appellants as defendants
plaintiff in the suit, rather, they took the plea that they purchased the suit land
have possess the suit land as a permissive possessor. Hence, the defendants
with costs. Upon the pleadings of the parties Learned Trial Court below framed
VII. Whether the plaintiff sold out and delivered the
possession of the suit land to the defendants ?(additional
issue)
VIII. Whether the defendants‟ claim for right, title and
interest over the suit land against the present plaintiff is
barred under estoppels and acquiescence as the claim of the
defendants have been dismissed by the Civil Judge (Jr.
Division) in TS 05 of 2010 ?(additional issue)."
[4] To substantiate the issues, both the parties have adduced
oral/documentary evidence on record. For the sake of convenience, I would
like to refer herein below the names of the witnesses of the original plaintiffs
and the defendants along with their exhibited documents as mentioned below :
"Plaintiff-Appellant‟s Exhibits:-
Exbt.01-Khatian No.197 of Mouza-Manubazar.
Exbt.02-Certified copy of Deed No.1-1538.
Exbt.03-Certified copy of Deed No.1-1539.
Exbt.04-Certified copy of Deed No.1-637.
Exbt.05-Certified copy of Deed No.1-636.
Exbt.06-Certified copy of Deed No.1-568.
Exbt.07-Form No.17 under TLR & LR Act, dated 07.02.1997.
Exbt.08-Notice dated 21.07.2005 issued by the Tehashilder of
Manubazar T.K.
Exbt.09-Certified copy of Demarcation report submitted
Tehashilder of Manubazar T.K. dated 30.07.2005.
Exbt.10- Khatian No.77 of Mouza-Manubazar.
Exbt.11-Legal notice issued by the plaintiff along with Postal
receipt and its corrigendum.
Exbt.12-Certified copy of Deed No.1-390.
Exbt.13-Original Sale Deed No.1-1355.
Exbt.14-Original Sale Deed No.1-1227.
Exbt.15-Certified copy of Sale Deed No.1-1538.
Exbt.16-Certified copy of Sale Deed No.1-1539.
Exbt.17-Trace Map of Mouza-Manubazar, Sheeet No.2(P).
Exbt.18-Certified copy of order dated 06.04.2011 along with
petition in connection with Title Suit 40 of 2010.
Exbt.19-Certified copy of order dated 24.07.2013 in Title Suit
No.05 of 2010.
Exbt.20-Copy of plaint in connection with Title Suit No.05 of
2010.
Exbt.21-Certified copy of Khatian Vide No.534.
Plaintiff-Appellant‟s Witness :-
PW-1-Sri Shibu Ranjan Banik
Defendants-Respondents‟ Exhibits:-
Exbt.A-Original Registered Deed No.1-568, dated 04.06.1982.
Exbt.B-Certified copy of original Registered Deed No.1-637,
dated 09.06.1980.
Exbt.C-Original Registered Deed No.1-636, dated 20.11.1985.
Exbt.D-Certified copy of Trace Map of Mouza-Manubazar,
Sheet No.2(P).
Exbt.E-Certified copy of Khatian No.392 of Mouza-Manubazar.
Exbt.F-Certified copy of Khatian No.534 of Mouza-Manubazar.
Exbt.G-Certified copy of Khatian No.197 of Mouza-Manubazar.
Exbt.H-Inquiry report dated 20.01.2017 of DW-2 before SDM,
Belonia.
Exbt.H/1-Signature of DW-2 in the inquiry report dated
20.01.2017.
Defendants-Respondents Witness:-
DW-1-Sri Bisweswar Kar Chowdhury.
DW-2-Sri Dilip Kumar Kar."
[5] Finally, on conclusion of trial, Learned Trial Court below by
judgment dated 05.05.2018 and decree dated 18.05.2018 partly decreed the
suit but the Learned Trial Court refused to grant any decree in favour of the
original plaintiff in respect of recovery of land as mentioned in Schedule-C of
the plaint. Challenging that judgment, the original plaintiff as appellant
preferred an appeal under Section 96 of CPC before the Court of Learned
District Judge, South Tripura, Belonia and the Learned Additional Sessions
Judge, South Tripura, Sabroom after consignment of record heard the
contesting parties on merit in T.A.No.01 of 2022 and by the judgment dated
24.11.2022 reversed the finding of the Learned Trial Court in respect of land as
mentioned in Schedule-C of the plaint upholding the rest part of the decree.
For the sake of convenience, I would like to mention herein below the relevant
portion of judgment and order of the Learned First Appellate Court in T.A.01 of
2022 which runs as under :
"In the result, this appeal stands allowed.
The impugned judgment and order is hereby interfered
with to the extent that the decisions and decrees given by the
Ld. Trial Court relating to issues Nos.(V) and (VII) are hereby
set-aside.
The plaintiff-appellant shall be entitled to decree for
recovery of possession of the C-scheduled land having his
right, title and interest by evicting defendants-respondents,
their men and agents therefrom, inasmuch plaintiff-appellant
at no point of time sold out the suit land (C-schedule) to the
defendants-respondents.
Having regard to the nature of appeal and attending facts
and circumstances it is also hereby ordered that the parties
would bear their own litigation costs.
Prepare the decree accordingly within forth-night from
today.
Send back the record of the Trial Court after observing all
formalities along with a copy of this judgment and decree
thereof to the Trial Court (The Court of Civil Judge (Sr.
Division), South Tripura, Belonia.
Make the consignment of record of the instant appeal case
to the District Record Room after expiry of appeal period.
With the above observation and order the instant title
appeal is hereby disposed of on contest.
Make necessary entry in the TR as well as in the CIS. "
[6] Challenging that judgment, the original defendants as appellants
has preferred this appeal before this Court. When the appeal was admitted for
hearing on 25.08.2023 the following substantial questions of law were framed:
"(i) In a suit for declaration of right, title and interest, in case
of disputes relating to plot numbers or khatian numbers and
boundary, which one will prevail over the other?
(ii) Whether the findings of the learned first appellate Court is
hit by Section 95 of the Evidence Act?"
[7] At the time of hearing of argument, Mr. P.K. Dhar, Learned senior
counsel appearing on behalf of the appellant-defendants first of all referring
the substantial questions of law as per order dated 25.08.2023 submitted that
the Learned Trial Court below in the original suit at the time of delivery of
judgment rightly declared the confirmation of possession of the plaintiff over
the suit land as mentioned in Schedule-B of the plaint. But as the respondent-
plaintiff could not prove his title along with possession over the suit land as
mentioned in Schedule-C by adducing oral/documentary evidence on record,
thus a cloud created in the mind of Learned Trial Court, so Learned Trial Court
rightly decided the issue and refused to grant decree in respect of recovery of
possession over the suit land as mentioned in Schedule-C of the plaint in
favour of the plaintiff. More so, Learned Trial Court relied upon the report of
Survey Commissioner (Exbt.H). According to Learned senior counsel, the
purchase deed of the respondents i.e. the present appellants herein covered
the suit land as mentioned in Schedule-C of the plaint as per boundary, all
though, the respondent-plaintiff wrongly mentioned the old C/S plot No.828 in
place of plot No.832 for which the Learned Trial Court below rightly refused to
grant decree in respect of the suit land as mentioned in Schedule-C of the
plaint. But the Learned First Appellate Court ignoring the oral/documentary
evidence on record of the present appellants reversed the judgment of the
Learned Trial Court in respect of the suit land as mentioned in Schedule-C of
the plaint and ignored the report of the Survey Commissioner and give a
perverse finding for which the interference of the Court is required and urged
for allowing this appeal by setting aside the judgment and decree of the
Learned First Appellate Court and to uphold the judgment of the Learned Trial
Court. A written note was also submitted.
[8] On the other hand, Mr. T.D. Majumder, Learned senior counsel
appearing on behalf of the respondent-plaintiff submitted that the Learned
Trial Court at the time of delivery of judgment granted decree in favour of the
respondent-plaintiff over the suit land as mentioned in Schedule-B of the plaint
but mis-appreciating the evidence on record refused to grant decree in respect
of recovery of possession over the suit land as mentioned in Schedule-C of the
plaint for which the respondent-plaintiff was compelled to prefer an appeal
under Section 96 of CPC before the Learned First Appellate Court and the
Learned First Appellate Court after considering and appreciating the entire
evidence on record reversed the finding of the Learned Trial Court rightly in
respect of the suit land as mentioned in Schedule-C of the plaint and there was
not infirmity in the judgment of the Learned Appellate Court. Learned senior
counsel further submitted that there is no substantial questions of law to be
formulated in this case, so, he urged for dismissal of this appeal upholding the
judgment of the Learned First Appellate Court.
[9] I have heard the detailed arguments of both the sides and also
gone through the record of the Learned Trial Court as well as the Learned First
Appellate Court including the oral/documentary evidence on record. Now, to
answer this appeal, let us discuss what is substantial questions of law. Hon‟ble
the Supreme Court of India in Sir Chunilal v. Mehta and Sons, Ltd. versus
Century Spinning and Manufacturing Co. Ltd. reported in 1962 SCC
OnLine SC 57 in para No.6 discussed what is substantial question of law :
"6. We are in general agreement with the view taken by the
Madras High Court and we think that while the view taken by
the Bombay High Court is rather narrow the one taken by the
former High Court of Nagpur is too wide. The proper test for
determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general
public importance or whether if directly and substantially
affects the rights of the parties and if so whether it is either
an open question in the sense that it is not finally settled by
this Court or by the Privy Council or by the Federal Court or is
not free from difficulty or calls for discussion of alternative
views. If the question is settled by the highest Court or the
general principles to be applied in determining the question
are well settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd the
question would not be a substantial questions of law."
Similarly, Hon‟ble the Supreme Court of India in another
judgment in Chandrabhan (Deceased) Through Lrs. and Others versus
Saraswati and Others reported in 2022 SCC OnLine SC 1273 in para
Nos.29 to 32 discussed about substantial questions of law :
29. In Hero Vinoth v. Seshammal : (2006) 5 SCC 545, this
Court followed Sir Chunilal v. Mehta & Sons (supra) and other
judgments and summarized the tests to find out whether a
given set of questions of law were mere questions of law or
substantial questions of law.
30. The relevant paragraphs of the judgment of this Court
in Hero Vinoth (supra) are set out herein below:
"21. The phrase "substantial question of law", as
occurring in the amended Section 100 CPC is not
defined in the Code. The word substantial, as
qualifying "question of law", means of having
substance, essential, real, of sound worth,
important or 4 AIR 1962 SC 1314 5 AIR 1951 Mad
969 6 (2006) 5 SCC 545 considerable. It is to be
understood as something in contradistinction with
technical, of no substance or consequence, or
academic merely. However, it is clear that the
legislature has chosen not to qualify the scope of
"substantial question of law" by suffixing the words
"of general importance" as has been done in many
other provisions such as Section 109 of the Code
or Article 133(1)(a) of the Constitution. The
substantial question of law on which a second
appeal shall be heard need not necessarily be a
substantial question of law of general importance.
In Guran Ditta v. Ram Ditta 55IA 235 : AIR 1928 PC
172] the phrase "substantial question of law" as it
was employed in the last clause of the then
existing Section 100 CPC (since omitted by
the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not
mean a substantial question of general importance
but a substantial question of law which was
involved in the case. In Sir Chunilal case [1962 Supp
(3) SCR 549 : AIR 1962 SC 1314] the Constitution
Bench expressed agreement with the following view
taken by a Full Bench of the Madras High Court
in Rimmalapudi Subba Rao v. Noony Veeraju [AIR
1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir
Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC
1314] , SCR p. 557)
"[W]hen a question of law is fairly arguable,
where there is room for difference of opinion
on it or where the Court thought it necessary to
deal with that question at some length and
discuss alternative views, then the question
would be a substantial question of law. On the
other hand if the question was practically
covered by the decision of the highest court or
if the general principles to be applied in
determining the question are well settled and
the only question was of applying those
principles to the particular fact of the case it
would not be a substantial question of law."
31. The proper test for determining whether a question of law
raised in the case is substantial would be, whether it is of
general public importance or whether it directly and
substantially affects the rights of the parties and if so,
whether it is either an open question in the sense that it is not
finally settled by this Court. If the question is settled by the
highest court or the general principles to be applied in
determining the question are well settled and there is a mere
question of applying those principles or the question raised is
palpably absurd, the question would not be a substantial
question of law.
32. To be „substantial‟, a question of law must be debatable,
not previously settled by law of the land or a binding
precedent, and must have a material bearing on the decision
of the case, if answered either way, insofar as the rights of the
parties before it are concerned. To be a question of law
"involving in the case" there must be first, a foundation for it
laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it
must be necessary to decide that question of law for a just
and proper decision of the case. An entirely new point raised
for the first time before the High Court is not a question
involved in the case unless it goes to the root of the matter. It
will, therefore, depend on the facts and circumstance of each
case whether a question of law is a substantial one and
involved in the case or not, the paramount overall
consideration being the need for striking a judicious balance
between the indispensable obligation to do justice at all
stages and impelling necessity of avoiding prolongation in the
life of any lis. (See Santosh Hazari v. Purushottam Tiwari :
(2001) 3 SCC 179."
From the above principle the concept of substantial questions of
law can be gathered.
[10] Here in the given case, the respondent-plaintiff filed the suit for
right, title and interest, confirmation of possession and perpetual injunction.
The respondent-plaintiff sought declaration of right, title and interest over the
A schedule land of the plaint, confirmation of possession and perpetual
injunction restraining the appellant-defendants from entering into the B
schedule land of the plaint and also sought recovery of vacant possession by
evicting the respondent-defendants i.e. the appellants herein from the land as
mentioned in Schedule C of the plaint. It was the case of the respondent-
plaintiff that the plaintiffs purchased the suit land measuring 03 karas 14 dhurs
in Sabek Dag No.832(P) with specific boundaries by dint of registered Sale
Deed No.1-1335 dated 08.08.1973 from one Pranbalab Chakraborty and its
adjacent plot measuring 0.05 acres from the same owner corresponding to
similar old plot No.832(P) by dint of another Sale Deed No.1-1227 dated
09.08.1974 and after purchase, the respondent-plaintiff got possession of both
the plots and he started possessing the suit land as an absolute owner. It was
the further case of the respondent-plaintiff that in the year 1994 the
defendants i.e. the appellants herein entered into the land as mentioned in
Schedule-C of the plaint as permissive possessor being allowed by the
respondent-plaintiff in order to run their bamboo business on condition that
they would return back the possession as and when asked for by the
respondent-plaintiff. But on 25.01.2009 when the respondent-plaintiff asked to
vacate the same, they refused to do so. Hence, the suit was filed. Before the
Learned Trial Court both the parties have adduced oral/documentary evidence
on record and finally after hearing both the sides the Learned Trial Court
passed the judgment and decree. The appellants took the plea that the
respondent-plaintiff being the owner of the suit land transferred the same by
way of executing two separate registered sale deeds in the year 1982 and
1985 and thus, the present appellants got the possession of the suit land as
mentioned in Schedule-C of the plaint and since then, they were possessing
the suit land peacefully without any disturbance. It was also the case of the
present appellants that the deed executed by the respondent-plaintiff in favour
of the appellants attracts the land as mentioned in Schedule-C of the plaint but
intentionally, the respondent-plaintiff wrongly quoted the C/S plot No.828 in
place of 832 but the boundaries of the same deed attracts the land as
mentioned in Schedule-C of the plaint. In course of hearing, the appellants
before the Learned First Appellate Court relied upon the judgment of the
Hon‟ble Supreme Court of India in Subhaga & Ors. vs Shobha & Ors.
reported in (2006) 5 SCC 466 regarding the identification of land wherein it
was held that "a property can be identified either by boundary or by any other
specific description is well established. Here the attempt had been to identify
the suit property with reference to the boundaries and the Commissioner has
identified that property with reference to such boundaries. Even if there was
any discrepancy, normally, the boundaries should prevail."
[11] However, after going through the oral/documentary evidence on
record, it appears that the entire suit land as mentioned in Schedule-A of the
plaint was recorded in the name of respondent-plaintiff in khatian No.534
under mouza-Manubazar, Tehashil-Manubazar and against the suit land as
mentioned in Schedule-C for land measuring .020 acres the present appellants
have been shown as permissive possessor. The finally published khatian is
prepared after observing different stages during settlement operation. The
appellants did not try to challenge the settlement order at the time of
preparation of finally published khatian in the name of the respondent-plaintiff
nor filed any prayer for rectification of the same. From the documents relied
upon by the present appellants it appears that by Exbt.A and Exbt.C the
present appellants purchased their land from old C/S Plot No.828 classified as
„dokan tilla‟ which was recorded in the name of the predecessor owner of
present appellants and on perusal of the trace map it appears that the plot
Nos.832 and 828 are identical and have complete different boundaries having
no direct nexus with each other. The present appellants during the time of
settlement operation at different stages never made any attempt to pray for
correction of record. Even no order of the settlement authority was produced
to substantiate their contention and from the title deeds of the respondent-
plaintiff and the title deeds of the appellants it appears that the respective
lands are totally different. But it is not clear to this Court as to how the
Learned Trial Court came to the observation that the respondent-plaintiffs has
got no clear title over the land as mentioned in Schedule-C of the plaint. On
perusal of the judgment of the Learned First Appellate Court it appears that
the Learned First Appellate Court at the time of delivery of judgment vividly
described all the issues and it appears that the Learned First Appellate Court
rightly dishonoured/rejected the report of the Survey Commissioner. Even,
from the evidence on record of the Survey Commissioner further it appears
that he could not demarcate the land properly as ordered by the Court. Since
the oral/documentary evidence on record clearly supports the claim of the
respondent-plaintiff over the suit land as mentioned in Schedule-C of the
plaint, so this Court also stands agree with the observation made by the
Learned First Appellate Court in deciding the title of the respondent-plaintiffs
over the suit land as mentioned in Schedule-C of the plaint. Learned First
Appellate Court in the judgment clearly referred the provisions of Section 35 of
the Evidence Act, Section 43 & 45 of TLR & LR Act, 1960 and also relied upon
few citations in Sudhangshu Mohan Dev Vs Niruda Sundari Debidhup
reported in (2004) 4 SCC 389 and also another case of Uttam Kumar Sen
and Others Vs Gita Das Chowdhury & Others reported in (1998) 3 GLT
299. Section 43(3) of TLR & LR Act provides that :
"(3)Every entry in the record of rights as finally published
shall, until the contrary is proved, be presumed to be correct."
[12] Here in the given case after perusal of the oral/documentary
evidence on record of the parties under dispute and also after going through
the judgment delivered by the Learned First Appellate Court as well as by the
Learned Trial Court it appears that the Learned Trial Court at the time of
delivery of judgment wrongly came to the observation that the respondent-
plaintiff was not having any clear title over the suit land as mentioned in
Schedule-C of the plaint and thus came to an erroneous finding rejecting the
prayer of the respondent-plaintiff in respect of recovery of possession over the
suit land as mentioned in Schedule-C of the plaint which in my considered view
the Learned First Appellate Court rightly decided in favour of the respondent-
plaintiff reversing the finding of the Learned Trial Court in respect of the suit
land as mentioned in Schedule-C of the plaint and granted the decree in favour
of the respondent-plaintiff. More so, as alleged by the appellants that they
were not the permissive possessors rather they were the lawful owners of the
suit land as mentioned in Schedule-C of the plaint, they did not take any step
for correction of record to the settlement authority for deleting their names as
permissive possessor nor they took any steps for rectification of deed from
their vendor in respect of C/S plot No. So, after elapsing of a long period and
on perusal of the title deeds of the rival parties it appears that since the lands
of the parties under dispute are distinct and different and there is no ambiguity
on that. So, in my considered view, the Learned First Appellate Court rightly
delivered the judgment in favour of the respondent-plaintiff of this appeal and
on perusal of the exhibited documents of the parties it appears that Section 95
of the Evidence Act would not assist the appellants in this appeal on the
ground as alleged by them and accordingly, the substantial questions of law
are answered in negative against the present appellants of this appeal.
[13] In the result, the appeal filed by the appellants challenging the
judgment and decree dated 24.11.2022 delivered by Learned Additional
District Judge, South Tripura, Sabroom in connection with Case No.T.A.01 of
2022 is hereby dismissed on contest with costs. The judgment and decree
dated 24.11.2022 delivered by Learned First Appellate Court in connection with
Case No.T.A.01 of 2022 reversing the judgment delivered by Learned Civil
Judge, Senior Division, Belonia, South Tripura in respect of the suit land as
mentioned in Schedule-C is hereby upheld and accordingly it is affirmed. The
respondent-plaintiff being the lawful owner of the land as mentioned in
Schedule-C of the plaint is entitled to get the decree of recovery of possession
in respect of the suit land as mentioned in Schedule-C of the plaint by evicting
the defendants i.e. the appellants herein or their men or agents, besides the
other part of the decree allowed by the Learned Trial Court in favour of the
respondent-plaintiff.
Prepare the decree accordingly.
Send down the LCRs along with a copy of the judgment.
Pending application/s, if any, also stands disposed of.
JUDGE
SABYASACHI Digitally
SABYASACHI
signed by
BHATTACHA BHATTACHARJEE
Date: 2025.01.29
RJEE 12:45:21 +05'30'
Sabyasachi B
