Tripura High Court
) Md. Ichub Ali vs Mst. Nurjan Bibi on 7 May, 2025
HIGH COURT OF TRIPURA
AGARTALA
RSA 39 of 2023
1) Md. Ichub Ali,
son of Late Ayaz Ali
2) Md. Riaj Uddin,
son of Md. Ichub Ali and Aftara Bibi
3) Md. Nazir Uddin,
Son of Md. Ichub Ali and Aftara Bibi
4) Md. Altab Uddin,
son of Md. Ichub Ali and Aftara Bibi,
all are resident of Latugoan, (Laicherrea G.P. Ward No.6),
P.O. Dupirbond, P.S. Dharmanagar, District-North Tripura,
Pin-799250
---- Appellant-Defendant(s)
Versus
1. Mst. Nurjan Bibi,
wife of Late Nazir Hussein
2. Mst. Alakjan Bibi,
wife of Md. Sahab Uddin,
daughter of Late Nazir Hussein
3. Md. Abdul Ali,
son of Late Nazir Hussein
4. Md. Guljar Hossein,
son of Late Nazir Hussein,
all are resident of Latugoan,
Laicherrea, P.O.Dupirbond,
P.S. Dharmanagar, District-North Tripura,
Pin-799250
5. Mst. Hazira Begam,
wife of Md. Masuk Mia,
son of Late Nazir Hussein,
resident of Batarashi Latugoan,
P.O.Dharmanagar, District-North Tripura,
Pin-799250
6. Mst. Malima Begam,
wife of Md. Atabur Rahaman,
daughter of Late Nazir Hossein
of Village-kalacherra, P.S.Dharmanagar,
District-North Tripura, Pin-799250
7. Husanara Begam,
wife of Md. Aklish Uddin,
daughter of Late Nazir Hossein
of Village-South Gangana, P.S. Dharmanagar,
District-North Tripura, Pin-799250
----Respondent-Plaintiff(s)
_____________________________________________________
For Appellant (s) : Mr. Saktimoy Chakraborty, Sr. Adv.
Ms. Pinki Chakraborty, Adv.
For Respondent(s) : Mr. Ratan Datta, Adv.
Mr. Aditya Baidya, Adv.
Ms. Swasati Nag, Adv.
Date of Hearing : 30.04.2025
Date of Judgment
& Order : 07.05.2025
Whether fit for reporting : YES
_________________________________________________________
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This second appeal under Section 100 of CPC is
preferred by the appellants challenging the judgment dated
10.10.2023 and decree dated 11.10.2023 delivered by
Learned Additional District Judge, North Tripura, Dharmanagar
in connection with Title Appeal No.07 of 2023 affirming the
judgment dated 04.01.2023 and decree dated 10.01.2023
delivered by Learned Civil Judge (Senior Division),
Dharmanagar, North Tripura in connection with Case No.Title
Suit 08 of 2020.
[02] Heard Mr. S.M. Chakrabory, Learned Senior
counsel assisted by Ms. P. Chakraborty, Learned counsel
appearing on behalf of the appellant-defendants and also
heard Mr. R. Datta, Learned counsel assisted by Ms. A.
Baidya, Learned counsel and Ms. Swasati Nag, Learned
counsel appearing on behalf of the respondent-plaintiffs.
[03] Before proceeding with the merit of the appeal,
let us discuss about the subject matter of dispute amongst the
rival parties. According to the respondent-plaintiffs, the suit
land described in Schedule-A of the plaint was belongs to the
predecessor of the plaintiffs namely Nazir Hussein which was
recorded in his name in Khatian No.708/2 under Muja
Dipurbond, T.K-Uptakhali, Dharmanagar, North Tripura
corresponding to Hal Dag No.1629/5849, Sabek C.S. Plot
No.751p land measuring 0.12 acre. Said Nazir Hussein expired
on 24.08.2016 leaving behind the respondent-plaintiffs as his
legal heirs. During his life time Nazir Hussein constructed a
hut on the suit land and in the year 2012 deceased defendant
No.1 of the original suit approached him to allow her to carry
business on a portion of the suit land as described in
Schedule-B of the plaint and on and from 05.09.2012 the
deceased respondent-defendant No.1 had been possessing the
suit land as permissive possessor along with other defendants.
On 10.02.2014 the predecessor of the plaintiffs i.e. the
respondents herein requested the defendant No.1 of the
original suit to hand over the vacate possession of the suit
land but the defendant No.1 requested for allowing her to stay
for another two years and accordingly the predecessor of the
respondent-plaintiffs allowed the defendants to stay over the
suit land for further two years and on 24.08.2016 Nazir
Hussein died. After completion of two years on 30.08.2018,
again the respondent-plaintiffs requested the defendants to
vacate the suit land but that was no vacated. Hence the
respondent-plaintiffs filed the suit before the Learned Trial
Court.
[04] The defendants here the appellants herein
contested the suit by filing written statement denying the plea
of the respondent-plaintiffs and pleaded that the suit land
along with other land originally owned and possessed by one
Nakib Mia, the predecessor of the defendants and his brother
namely Munsi Mia (since dead). Nakib Mia died leaving behind
his son Masaddar Ali, the predecessor the defendants and
after the death of Masaddar Ali the defendants became the
owner and possessor of the suit land along with other lands.
Nazir Hussein, the predecessor the plaintiff being a day
labourer took shelter with his family member on the suit land
with the permission of the predecessor of defendants namely
Masaddar Ali and keeping the original owner in dark Nazir
Hussein fraudulently mutated the suit land along with other
land of Masaddar Ali in his name in connivance with the
Revenue Authority without having any possession and title. It
was further pleaded that Nazir Hussein, the predecessor the
plaintiff fraudulently obtained Khatian no.708/2 in his name
showing the original owner, the defendant No.1 as permissive
possessor. Hence, the contesting the defendants, now the
appellants herein prayed for dismissal of the suit with costs.
[05] Upon the pleadings of the parties, Learned Trial
Court below framed the following issues :
"i. Whether the suit is maintainable in its present
form and nature?
ii. Whether there is cause of action of filing this suit?
iii. Whether Khatian bearing No.708/2 has been
obtained by the plaintiffs by fraud?
iv. Whether the plaintiffs are entitled to get decree
for right, title and interest over the suit land as
mentioned in schedule-A of the plaint?
v. Whether the plaintiffs are entitled to get decree of
recovery of Khash possession over the suit land?
vi. Whether the plaintiffs are entitled to mense
profits @ Rs.600/- per month w.e.f.30.08.2018 till
the date of handing over the possession of the suit
land by the defendants?
vii. Any other relief/relieves which the plaintiffs are
entitled to?"
[06] 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 name of
witnesses as well as the exhibited documents of the parties as
follows :
APPENDIX
Case No.T.S.08 of 2020
(A) Plaintiffs Exhibits:-
Exbt.1 as a whole-Certified copy of computerized
khatian No.708/1 under Mouja-Dupirband, T.K-
Uptakhali standing in the name of Nazir Hussain.
Exbt.2-Certified copy of computerized khatian
No.708/2 under Mouja-Dupirband, T.K-Uptakhali
standing in the name of Nazir Hussain.
Exbt.3-Certified copy of computerized khatian
No.266 under Mouja-Dupirband T.K-Uptakhali
standing in the name of deceased Nazir Hussain.
Exbt.4-Certified copy of trace map under Mouja-
Dupirband, sheet No.1(P).
Exbt.5-Certified copy of manual khatian bearing
No.708/1 under Mouja-Dupirband, T.K-Uptakhali.
Exbt.6 as a whole-Certified copy of manual khatian
bearing No.266 under Mouja-Dupirband, T.K-
Uptakhali.
Exbt.7-Certified copy of manual khatian bearing
No.266 under Mouja-Dupirband T.K-Uptakhali.
(B) Defendants Exhibit : Nil.
(C) Plaintiffs Witnesses :
PW1-Guljar Hussain
PW2-Sahab Uddin
PW3-Abdul Kashim
(D) Defendants Witnesses :
DW1-Riyaj Uddin
DW2-Abdul Gani
DW3-Altab Uddin
(E) Court Witness : Nil
(F) Material Exhibit: Nil
[07] Finally, on conclusion of trial, Learned Trial Court
below decreed the suit in favour of the original plaintiffs and
accordingly, decree was prepared. The operative portion of the
judgment dated 04.01.2023 delivered by Learned Civil Judge
(Senior Division), Dharmanagar, North Tripura runs and
follows :
"20. In the result, on the basis of the above
discussion and deliberations, the suit is decree with
the declaration that the plaintiffs have right, title
and interest over the suit land specifically described
in the schedule-A of the plaint and the plaintiffs are
further entitled to recovery of khash possession of
the landed property specifically described in the
schedule-A of the plaint by evicting the defendants
from the suit land removing them from the land
specifically described in schedule-B of the plaint and
also by removing all obstruction or construction
existing in the suit land at the cost of the
defendants.
The defendants are directed to hand over
vacant possession of the suit land to the plaintiffs
within 30 days from the date of this Judgment and
Order.
The costs of the suit shall be borne by the
defendants.
This suit is disposed off accordingly on
contest.
Sherestadar is directed to prepare decree
accordingly as per the Civil Rules and Orders.
Thus Judgment and Order is passed on this
04th day of January, 2023 under the seal and
signature of the Court.
Make necessary entry in the Trial Register."
[08] Challenging that judgment, the defendants as
appellants preferred this appeal under Section 96 of CPC read
with Section 41 of CPC before the Court of Learned Additional
District Judge, North Tripura, Dharmanagar and the Learned
Additional District Judge after hearing both the sides
dismissed the appeal upholding the judgment of the Learned
Trial Court below. The operative portion of the judgment of
the Learned First Appellate Court dated 10.10.2023 runs as
follows :
"In the result, the appeal is dismissed and judgment
and decree passed by the Ld. Trial Court is affirmed.
This appeal is disposed of on contest.
Prepare appellate decree accordingly and
place before me for signature within 15 days.
Send down the Trial Court Record along with a
copy of this judgment and decree.
Make entry in Trial register and upload in
CIS."
On the basis of that judgment, consequential
decree was passed. Challenging that judgment the defendants
as appellants have preferred this appeal before the High
Court.
[09] At the time of admission of appeal, the following
substantial questions of law was formulated by order dated
06.12.2023 which reads as under :
"[i] Whether the plaintiff-respondents can claim
right, title and interest over the suit land basing only
on ROR when the defendant-appellants claiming title
over the suit land fails to prove any document of
title in their favour and when the possession of the
defendant-appellants in the suit land is admitted?"
[10] Taking part in the hearing, Learned Senior
counsel, Mr. S.M. Chakraborty appearing on behalf of the
appellant-defendants drawn the attention of the Court that
although both the Courts below gave concurrent findings but
that findings of the Learned Courts below are perverse and
beyond the principle of law laid down by the Hon'ble Apex
Court. Learned Senior counsel further submitted that the suit
was filed under Section 5 of the Specific Relief Act which
requires proving of title. But here in the given case, save and
except ROR which does not confer any title, the Learned Trial
Court as well as the Appellate Court decreed the suit in favour
of the respondent-plaintiffs ignoring the principle of law laid
down by the Hon'ble Apex Court. Learned Senior counsel
further submitted that the respondent-plaintiffs in their plaint
and also by their evidence on record admitted the fact or
possession of the defendants i.e. the appellants herein and the
citations referred by Learned First Appellate Court at the time
of delivery of judgment beyond the principle of law laid down
by the Hon'ble Apex Court and as such, both the judgments
delivered by the Learned First Appellate Court and by the
Learned Trial Court needs to be interfered with and the
judgment and decree needs to be set aside by allowing this
appeal.
[11] On the other hand, Learned counsel, Mr. R.
Datta appearing on behalf of the respondent-plaintiffs first of
all drawn the attention of the Court referring the plaint and
the written statement filed by the defendants i.e. the
appellants herein and submitted that both the Learned Courts
below gave concurrent findings and the Khatian which gives a
presumptive value as per Section 43(2) of TLR & LR Act and
thus declared right, title and interest over the suit land of the
respondent-plaintiffs. So, there was no infirmity in the
judgment delivered by the Learned Courts below and as such,
Learned counsel urged for dismissal of this present appeal.
Furthermore, the defendants could not adduce any rebuttable
evidence on record.
[12] Learned counsel for the respondent-plaintiffs
relied upon one citation of Gauhati in Narendra Chandra
Deb and Others versus Kamini Mohan Deb reported in
AIR 1979 NOC 169(Gauhati) wherein the Hon'ble Gauhati
High Court observed as under :
"A person can sue for this right, title and interest
based on an entry reflected in the record of rights.
The term "title" is of variable meaning the elements
constituting "legal ownership" a right to possession,
interest in any property, are all covered within the
term "title".
The entire structure and methodology of
preparation of the record of rights under the Act
ensures due preparation wide publication, hearing of
objections regarding entries from all quarters and
thereafter final publication in the manner prescribed
under the Act, bear stamp of authenticity,
correctness of the preparation of the record of
rights. The legislative intent behind the presumption
of correctness of the entry until the contrary is
proved and the reason for putting the record of
rights on a higher pedestal than other official
documents become clear. The creation of the
presumption as to the correctness of the entries in
the record of rights in turn creates a right in favour
of the party to claim the rights, title and interest
reflected in such record of rights. It can safely be
presumed that a claim of rights, title and interest in
land can be founded on the basis of the record of
rights in all actions including civil actions.
It is not for the person relying on the entry to
substantiate the correctness thereof but it is the
person questioning the correctness thereof who is
called upon to prove the contrary. However, the
person may rebut the presumption by creating a
strong doubt in the mind of the Court whereupon the
onus of correctness may shift on the person relying
on the correctness of the entry.
A person can sue on the basis of his rights
reflected in the record of rights, claim a decree and
the plaintiff in whose favour an entry is made is not
required to establish by supporting evidence that
the entry was correctly made. It is not at all
necessary for him to adduce evidence to establish
that there was foundation for making the entry.
When an entry becomes suspect it may be necessary
for the plaintiff to lay the foundation as to the
correctness of the same. The presumption in
question is rebuttable."
Referring the same, he submitted that in view of
Section 43(3) of TLR & LR Act entries in the record of rights
presumed to be correct until the contrary is proved. But here
in the given case, the defendants i.e. the appellants herein
could not adduce any rebuttable evidence on record to cast
doubt upon the title of the plaintiffs, i.e. the respondents
herein so, the Leaned Courts below rightly decreed the suit in
favour of the respondent-plaintiffs.
He also relied another judgment of this High
Court in Amiyanshu Sharma and Ors. versus Matilal Dey
and Ors. reported in (2022) 1 TLR 571 wherein in para
Nos.15, 16, 17 & 18 this Court observed as under :
"15. Under this provision, a person by way of
creation of Khatian is declared as "Rayat". Rayat is
defined in the Act itself. It means the person who
owns the land. I have no difference of opinion that a
Khatian being created in compliance with the
provision under Section 43 of TLR and LR Act is not a
document of title. However, it is settled by a catena
of decisions of this court that the correctness of
record-of-right being finally published has a
presumptive value until the contrary is proved i.e.
until the said presumption is rebutted by way of
laying cogent evidence. Section 35 of the Evidence
Act postulates that entry in the record of right is
admissible in evidence. It is now well settled that
the finally published Khatian must be construed to
have authenticity as to the possession of the
plaintiffs over a certain land in dispute.
Furthermore, every entry in the record-of-right is
presumed to be correct and burden is on the
defendant to prove the contrary in the trial.
16. Now, I am to decide whether the defendant has
been able to rebut the presumption of Khatians
created in favour of the plaintiffs. It is seen that the
defendant had tried to establish his title over the
suit land by dint of a registered gift deed and the
Will. Both the courts after appreciating the facts on
those two documents held that the defendant had
failed to prove the gift deed as well as the Will. It is
not the case of the defendant that he acquired right,
title and interest over the property by way of
adverse possession. His claim is based on title. But,
acquisition of such title by dint of the gift deed and
the Will had been rejected by both the courts below.
The submission of learned counsel for the
respondent that PW-1 himself stated that he heard
that his father had sold out the property to the
original owner of the suit land and that PW-2 stated
that he could not say whether the suit land was sold
by his father to the original owner. I am of the
opinion that these statements made during their
cross-examinations have no evidentiary value
because the statement of PW-1 is hit by Section 60
of the Evidence Act which provides that oral
evidence must, in all cases, be direct. Here, the
statement of PW-1 during cross-examination was
not based on his personal knowledge, but, what he
heard from others is hearsay evidence and such
evidence is inadmissible.
17. In the case in hand, what is before the court is
the khatian i.e. ROR which was created in the name
of the father and after his death in the name of his
legal heirs. Before preparation of draft Khatian there
are four stages which are to be followed i.e. (1)
Dagawari, (2) Khanapuri, (3) Bhujarat and (4)
Attestation (jamabandi). Had the defendant was in
actual possession on the suit land for so many years
and having title as he asserted in his written
statement, then, question naturally arises why he
did not approach the revenue authority to create
Khatian in his name. According to this court, that
gives an adverse inference against the plea of the
defendant.
18. On the other hand, it is the specific case of the
plaintiffs that when the son of PW-1 had tried to
raise boundary fencing around the suit land, then,
the defendant raised objection and that has given
rise to cause of action to institute the present suit.
In front of this court, there is no document of better
title than that of the Khatians i.e. the record of right.
Of course, it is a document of presumption. In the
record of right, the names of the plaintiffs have been
recorded as Rayats. I reiterate that "Rayat" means
who owns the land. This is also a presumption of
ownership of a person over a piece of land which
presumption has to be rebutted by way of placing
better evidence of title, which is absent in the
instant suit. Even, the defendant did not raise any
objection during those four stages. Furthermore,
under the scheme of the TLR and LR Act after
completion of the above formalities draft publication
is made showing the name(s) of the owner of the
land provisionally. At the time of draft publication,
objection is invited from the persons who had/has
any interest or claims over the property under the
draft publication. In other words, interested
person(s) if any, can raise his/their objection
against any entries or omissions mentioned in the
draft khatian prepared by revenue authority. After
considering objection, if any, the Khatian i.e. the
record-of-right is finally published."
He also referred another judgment of a coordinate bench
of this High Court in connection with RSA 07 of 2016 dated
16.07.2019 [Sri Haridas Sutradhar and Others versus Sri Sunil
Chandra Das and Others] wherein in para Nos.12 & 13 this Court
observed as under:
"12. In view of that, it has to be admitted that the
defendants have not challenged the plaintiff in a
substantive manner. Moreover, the decision of the
apex court, no doubt, is applicable as a general
proposition of law but when the finally published
khatian has been placed in the record showing that
the predecessor of the plaintiffs were recorded as
the rayat and that entry has not been challenged, in
view of Section 43(3) of the TLR & LR Act, the civil
court committed no wrong while returning the
finding on title after making due inquiry into the
relevant facts.
13. This court, having appreciated the submission
made by the learned counsel for the parties is of the
view that when there is no ambiguity in respect of
the proposition of law that solely on the basis of the
finally published khatian the records of right the title
may not be declared but in the circumstances of this
case when the correctness of the entry is not
challenged by the defendants, according to this
court, both the courts below did not commit any
illegality and as such, this court is unable to accept
the analogy advanced by the learned counsel
appearing for the appellants.
Having observed thus, this appeal stands
dismissed.
Draw the decree accordingly.
Send down the records thereafter."
Relying upon the said judgment, Learned counsel for the
respondent-plaintiffs submitted that since the defendants i.e. the
appellants herein before the Learned Trial Court have failed to
adduce any rebuttable evidence on record to counter the case of the
respondent-plaintiffs and as such, after discussing the
oral/documentary evidence on record Learned Trial Court returned
the findings in favour of the respondent-plaintiffs which was affirmed
by Learned First Appellate Court and urged for dismissal of this
appeal upholding the judgment and decree of the Learned First
Appellate Court.
[13] On the other hand, Mr. S.M. Chakraborty, Learned Senior
counsel appearing on behalf of the appellant-defendants at the time
of hearing relied upon one citation of the Hon'ble Apex Court in
Union of India and Others versus Vasavi Cooperative Housing
Society Limited and Others reported in (2014) 2 SCC 269
wherein in para Nos.21 to 24 the Hon'ble Apex Court observed as
under :
"21. This Court in several Judgments has held that
the revenue records does not confer
title. In Corporation of the City of Bangalore v. M.
Papaiah and another : (1989) 3 SCC 612 this Court
held that :
"5.......it is firmly established that revenue
records are not documents of title, and the
question of interpretation of document not
being a document of title is not a question of
law."
In Guru Amarjit Singh v. Rattan Chand and
others (1993) 4 SCC 349 this Court has held that :
"2.......that the entries in jamabandi are not
proof of title".
In State of Himachal Pradesh v. Keshav Ram and
others (1996) 11 SCC 257 this Court held that :
"5.....an entry in the revenue papers, by no
stretch of imagination can form the basis for
declaration of title in favour of the
plaintiffs."
22. The Plaintiff has also maintained the stand that
their predecessor-in- interest was the Pattadar of
the suit land. In a given case, the conferment of
Patta as such does not confer title. Reference may
be made to the judgment of this Court in Syndicate
Bank v. Estate Officer & Manager, APIIC Ltd. &
Ors. (2007) 8 SCC 361 and Vatticherukuru Village
Panchayat v. Nori Venkatarama Deekshithulu &
Ors. (1991) Supp. (2) SCC 228.
23. We notice that the above principle laid down
by this Court sought to be distinguished by the High
Court on the ground that none of the above-
mentioned judgments, there is any reference to any
statutory provisions under which revenue records
referred therein, namely, revenue register,
settlement register, jamabandi registers are
maintained. The High Court took the view that Ext.A-
3 has evidentiary value since the same has been
prepared on the basis of Hyderabad record of Rights
in Land Regulation, 1358 Fasli. It was also noticed
that column 1 to 19 of Pahani Patrika is nothing but
record of rights and the entries in column 1 to 19 in
Pahani Patrika shall be deemed to be entries made
and maintained under Regulations.
24. We are of the view that even if the entries in the
Record of Rights carry evidentiary value, that itself
would not confer any title on the plaintiff on the suit
land in question. Ext.X-1 is Classer Register of 1347
which according to the trial court, speaks of the
ownership of the plaintiff‟s vendor‟s property. We
are of the view that these entries, as such, would
not confer any title. Plaintiffs have to show,
independent of those entries, that the plaintiff‟s
predecessors had title over the property in question
and it is that property which they have purchased.
The only document that has been produced before
the court was the registered family settlement and
partition deed dated 11.12.1939 of their predecessor
in interest, wherein, admittedly, the suit land in
question has not been mentioned."
Referring the same, he submitted that Khatian does not
confer any title. So, on the basis of Khatian no decree of title can be
granted in any case. Furthermore, the respondent-plaintiffs admitted
the possession of the appellants over the suit land.
He further referred another citation of a Division Bench of
this High Court in Tripura Co-operative Milk Producer Union Ltd.
versus Madhura Manjuri Singh and Ors. reported in (2020) 1
TLR 789 wherein in para No.17 this High Court observed as under :
"17. In our opinion, instead of interfering with the
revision order, the parties ought to have been left to
the remedies before civil court to establish rights
and titles. If the original petitioners wanted a
declaration of ownership or desired that the Milk
Producer Union should vacate the land which
according to them the Union was occupying without
authority of law, they had to institute and should be
left to institute civil proceedings before the
competent court. Minute examination and
interference with the revisional order in a writ
jurisdiction would not be called for. As noted, the
issues pertain to the entries in the revenue records
which were meant only for fiscal purpose and a
presumptive value of possession but not indicative
of title to the land in question. The petitioners do no
dispute the possession of the Milk Union over the
land."
Referring the same, Learned counsel submitted that from
the said judgment it appears that entries in the revenue record is
only meant for fiscal purpose and a presumptive value of possession
but not indicative of title to the land in question. But here in the
given case, the respondent-plaintiffs by oral evidence on record
admitted the possession of the appellants herein, i.e. the defendants
of the original suit. As such, in view of the principle of law laid down
by the Hon'ble Apex Court there is no scope to confirm the judgment
and decree delivered by Learned First Appellate Court as because on
the basis of Khatians no title can be accrued upon.
[14] I have perused the record of the Learned Trial Court and
the Learned Appellate Court including the evidence on record. The
respondent-plaintiffs on the basis of Khatian No.708/2 tried to
establish that their predecessor was the lawful owners in possession
as well as the valid title holder over the suit land. In the judgment of
this High Court referred by the Learned counsel for the respondents
herein it was discussed that as per TLR & LR Act "record of rights" is
prepared through different stages and during that period, no
challenge was made by the present appellants herein regarding
creation of Khatian in the name of the predecessor of the
respondent-plaintiffs and in those cases it was the observation of the
coordinate Benches of this High Court that a presumption can be
drawn up as per Section 43(3) of TLR & LR Act which states that
"entries in the record of rights shall be presumed to be correct until
the contrary is proved." In those case, since the defendants could
not adduce any rebuttable evidence on record to create any doubt
about the title of the plaintiffs. So, based on the Khatians the
concerned Courts gave the findings which were affirmed by the High
Court. But here in the given case it is on record that the predecessor
of the defendants i.e. appellant herein was shown as permissive
possessor during settlement operation which was marked as Exbt.1
as a whole and on perusal of Exbt.3 i.e. Khatian No.266 it appears
that on 13.06.1966 during attestation period name of the
predecessor of the respondent-plaintiffs was shown as "Rayot". But
how his name was recorded as Rayot, in this regard, the respondent-
plaintiffs before the Learned Trial Court or Appellate Court could not
adduce any documentary evidence on record. Hon'ble the Supreme
Court of India in this regard in P. Kishore Kumar versus Vittal K.
Patkar reported in 2023 SCC OnLine SC 1483 in para Nos.12 to
16 and 24 to 32, the Apex Court observed as under :
"12. It is trite law that revenue records are not
documents of title.
13. This Court in Sawarni vs. Inder Kaur and
Ors.:(2020)19 SCC 57 held that mutation in revenue
records neither creates nor extinguishes title, nor
does it have any presumptive value on title. All it
does is entitle the person in whose favour mutation
is done to pay the land revenue in question.
14. This was further affirmed in Balwant Singh & Ors
vs. Daulat Singh (Dead): (1996) by LRs and Ors.
:(1997)7 SCC 137 wherein this Court held that mere
mutation of records would not divest the owners of a
land of their right, title and interest in the land.
15. In Jitendra Singh vs. State of Madhya Pradesh
and Ors.: 2021 SCC OnLine SC 802", this Court after
considering a catena of judgments, reiterated the
principle of law as follows:
"6. ***mutation entry does not confer any
right, title or interest in favour of the person
and the mutation entry in the revenue record is
only for the fiscal purpose."
16. We may also profitably refer to the decision of
this Court in Sita Ram Bhau Patil vs. Ramchandra
Nago Patil (Dead) by LRs. and Ors. (1977) 2 SCC 49
wherein it was held that there exists no universal
principle that whatever will appear in the record of
rights will be presumed to be correct, when there
exists evidence to the contrary."
24. This Court, in Union of India and Ors. vs. Vasavi
Co-operative Housing Society Limited and Ors.
:(2014) 2 SCC 269, held as under:
"15. It is trite law that, in a suit for declaration
of title, the burden always lies on the Plaintiff
to make out and establish a clear case for
granting such a declaration and the weakness,
if any, of the case set up by the Defendants
would not be a ground to grant relief to the
Plaintiff."
25. This decision was affirmed, and further
elaborated upon, in Jagdish Prasad Patel (Dead) thr.
LRs. and Ors. vs. Shivnath and Ors. :(2019) 6 SCC
82, wherein this Court has succinctly summarized
the law on burden of proof in suits for declaration of
title as follows:
"44. In the suit for declaration for title and
possession, the Plaintiffs- Respondents could
succeed only on the strength of their own title
and not on the weakness of the case of the
Defendants-Appellants. The burden is on the
Plaintiffs-Respondents to establish their title to
the suit properties to show that they are
entitled for a decree for declaration. The
Plaintiffs-Respondents have neither produced
the title document i.e. patta-lease which the
Plaintiffs-Respondents are relying upon nor
proved their right by adducing any other
evidence. As noted above, the revenue entries
relied on by them are also held to be not
genuine. In any event, revenue entries for few
Khataunis are not proof of title; but are mere
statements for revenue purpose. They cannot
confer any right or title on the party relying on
them for proving their title."
26. Mr. S.N. Bhat placed reliance on the decision of
this Court in R.V.E. Venkatachala Gounder vs.
Arulmigu Viswesaraswami & V.P. Temple :(2003) 8
SCC 752 to contend that the plaintiff was only
expected to prove his title to a high degree of
probability and not beyond reasonable doubt. The
principle of law argued by the learned senior counsel
is not one we wish to dispute, the same having been
well settled through numerous decisions of this
Court. However, having led in evidence only revenue
documents which are essentially fiscal in nature, we
have no hesitation in holding that in the present
case, the plaintiff has been unable to assert his case
to a high degree of probability. It is, therefore, not
enough that the plaintiff led in evidence records of
rights for a number of years in an attempt to
establish his title; such records would not counter
the proof of occupancy rights furnished by the
defendant, in a test of probative value.
27. This Court, in Somnath Burman vs. S.P. Raju and
Ors. : (1969) 3 SCC 129 held that possession can be
regarded as a better title against all, except the true
and lawful owner. Therefore, the multitude of
revenue documents put to use to argue that the
plaintiff was cultivating the suit property would not
adequately meet the demands of proof made by law.
The only credible document of title led as evidence
in the present case was in favour of the defendant‟s
predecessor-in-interest; hence, it must follow that it
is only the defendant who can be declared the lawful
owner of the „B‟ schedule property.
28. In the light of the discussions made above, we
hold that the Trial Court erred in decreeing the suit
by placing on a higher probative pedestal the
revenue entries. In our considered opinion, the first
appellate court rightly overturned the findings of the
Trial Court and dismissed the suit. The
Commissioner‟s order was correctly interpreted to
determine as to in whom occupancy rights vested in
respect of the „B‟ schedule property.
29. The first appellate court having examined the
facts in extenso, the High Court ought not to have
interfered with the findings rendered therein
by virtue of being, in second appeal, a court of law.
As was astutely said by this Court in Gurdev Kaur vs.
Kaki :(2007)1 SCC 546, a second appellate court is
not expected to conduct a "third trial on facts" or be
"one more dice in the gamble." The decision
rendered by the first appellate court, not being in
violation of the settled position of law, ought not to
have been interfered with. With utmost respect to
the High Court, we are constrained to observe that
the question framed by it could be regarded as one
of law, if it all, but did not merit the label of a
substantial question of law so as to warrant
interference with the first appellate decree
under section 100 of the CPC.
30. That apart, the High Court was remiss in
reversing the findings of facts rightly arrived at by
the first appellate court. The decision to adopt the
Trial Court‟s approach of interpreting the
Commissioner‟s order within the framework of the
revenue records that were exhibited was yet
another aspect in which the High Court fell in error.
An attempt ought to have been made by the High
Court to harmoniously read the Commissioner‟s
order with the provisions of the Act and to interpret
the same so as to render it in consonance with the
law, the failure of which leads to the inescapable
conclusion that the same is indefensible.
31. The sequitur of this discussion, with respect, is
that the High Court while rendering the judgment
and order under challenge proceeded on an
erroneous approach and contrary to settled law. The
plaintiff having failed to meet the burden of proof
imposed on him by law, his suit against the
defendant must fail.
32. The impugned judgment and decree are,
accordingly, set aside. The civil appeal stands
allowed and the decree passed by the Trial Court,
extracted hereinabove, is set aside with the result
that the plaintiff‟s suit shall stand dismissed. There
shall be no order as to costs."
In another judgment, Hon'ble the Supreme Court of India
in Bhimabai Mahadeo Kambekar (Dead) through Legal
Representative versus Arthur Import and Export Company
and Others reported in (2019) 3 SCC 191, in para No.6 further
observed as under :
"6.This Court has consistently held that mutation of
a land in the revenue records does not create or
extinguish the title over such land nor has it any
presumptive value on the title. It only enables the
person in whose favour mutation is ordered to pay
the land revenue in question. (Seen Sawarni v. Iner
Kaur : (1996) 6 SCC 223), Balwant Singh v. Daulat
Singh : (1997) 7 SCC 137 and Narasamma v. State of
Karnataka : (2009) 5 SCC 591."
From the aforesaid principles of law laid down by the
Hon'ble Apex Court it appears that revenue records are not
documents of title and in the said judgments it is also mentioned
that mutation of records does not confer any right, title and interest
in favour of any person and the mutation record or the revenue
record is meant only for the fiscal purpose. Relying upon the
aforesaid principles we can safely come to the conclusion that the
observations of the Learned Courts were not in accordance with the
guidelines/observations made by the Hon'ble Apex Court in the
aforenoted cases. It appears that based on revenue records no
decree of title can be granted by any Court. Accordingly, the
substantial question of law formulated is answered in negative
against the respondent-plaintiffs.
[15] Situated thus, it appears that both the Courts below have
committed error in decreeing the suit in favour of the respondent-
plaintiffs. Accordingly, in the considered opinion of this Court
although the appellants could not produce any rebuttable evidence
on record but on the basis of documentary evidence on record as
relied upon by the respondent-plaintiffs up to this stage, no decree of
title can be conferred by any Court. Thus, it appears that both the
Courts below have misinterpreted the principles of law laid down by
the Hon'ble Apex Court and as such, both the judgments and decree
are liable to be interfered with.
[16] In the result, the appeal filed by the appellants is hereby
allowed but considering the facts and circumstances of this case, no
order is passed as to costs. The judgment dated 10.10.2023 and
decree dated 11.10.2023 delivered by Learned Additional District
Judge, North Tripura, Dharmanagar in connection with Title Appeal
No.07 of 2023 confirming the judgment dated 04.01.2023 and
decree dated 10.01.2023 delivered by Learned Civil Judge (Senior
Division), Dharmanagar, North Tripura in connection with Case
No.Title Suit 08 of 2020 are accordingly stands set aside. This
judgment is based on the basis of documentary evidence on record
adduced by the parties and also in view of the principle of law laid
down by the Hon'ble Apex Court. However, in future, if the
respondent-plaintiffs could able to find out any document or title on
the basis of which Khatian was prepared in the name of the
predecessor of the respondent-plaintiffs in the year 1966, in that
case, the respondent-plaintiffs shall be at liberty to file regular suit
for declaration of title and for recovery of possession, if they are so
advised.
With this observation, the appeal filed by the appellants is
hereby allowed and disposed of.
Pending application/s, if any, also stands disposed of.
JUDGE
SABYASACHI Digitally
SABYASACHI
signed by
BHATTACHAR BHATTACHARJEE
Date: 2025.05.09
JEE 04:06:55 +05'30'
Sabyasachi B
