Tripura High Court

Sri Usharanjan Das vs Sri Sadananda Das on 15 May, 2025

              IN THE HIGH COURT OF TRIPURA
                           AGARTALA

                        RSA No.16 of 2024

1. Sri Usharanjan Das
2. Sri Chitta Ranjan Das
3. Sri Manoranjan Das
4. Sri Niranjan Das

     - All are sons late Umacharan Das
5. Smt. Abha Das
6. Smt. Prava Das
7. Smt. Sangita Das

     - All of 5,6,7 are daughters of late Umacharan Das,

     - All (1 to 7) are resident of Birbal Das Para,
     Amarpur Town, P.O. Amarpur-799120, P.S.
     Birganj, District- Gomati, Tripura
                                            ......... Appellant (s)

                           -Versus-
1. Sri Sadananda Das

2. Sri Sajal Das
3. Sri Swadesh Das
     -All are sons of late Subal Das and all are residents
     of Birbal Das Para, Amarpur Town, P.O.- Amarpur-
     799120, P.S.- Birganj, District- Gomati, Tripura

4. Smt. Laxmi Das,
wife of Sri Dhirendra Das, resident of Drivers' Colony,
P.O. Amarpur-799120, P.S. Birganj, District- Gomati,
Tripura

5. Smt. Saraswati Das (Choudhury)
wife of Sri Subrata Choudhury, resident of Chanmura,
P.O. Teparia, P.S. Airport, District- West Tripura

6. Smt. Krishna Das (Dey)
wife of Sri Bidhu Bhusan Dey, resident of Sankarpalli,
P.O. Amarpur-799120, P.S. Birganj, District-Gomati,
Tripura
                               Page 2 of 15




7. Smt. Bishnu Das
wife of Sri Babul Das, resident of Sankarpalli, P.O.-
Amarpur-799120, P.S.- Birganj, District- Gomati,
Tripura

8. Smt. Jogamaya Dey (Das)
wife of Sri Nityaranjan Dey, resident of Purba
Pratapgarh, Near- Fulkali Bari, P.S. and P.O.- Amtali,
District- West Tripura, Tripura

9.
(i) [Ganesh Dey (Dead)]
    son of late Hiralal Dey

     [As per order dated 21.11.2024 passed in I.A. 01 of
     2024, his name has been deleted from the Memo of
     Appeal.]

(ii) Sri Rakhal Chanra Dey

(iii) Sri Nepal Chandra Dey

(iv) Sri Nirmal Chandra Dey

(v) Sri Gopal Dey

     - All of (ii) to (v) are sons of Sri Ganesh Chandra
     Dey, residents of village- Mailak, P.O.- Amarpur,
     P.S.- Birganaj, District- Gomati, Tripura

(vi) Smt. Kanan Dey
daughter of Ganesh Chandra Dey and wife of not known

(vii) Smt. Kajal Dey
daughter of Ganesh Chandra Dey and wife of not known

     -Both are residents of village & P.O. Nalchar, P.S.
     Melghar, District- Sepahijala, Tripura

10. Sri Sujit Bhowmik
-son of Sri Jyotish Chandra Bhowmik, residents of Motorstand,
Amarpur Town, P.O.- Amarpur-799120, District- Gomati, Tripura



                                             ........ Respondent (s)

For the Appellant(s) : Mr. D.K. Das Choudhury, Adv. For the Respondent(s) : Mr. N. Choudhury, Adv.

Date of hearing                 :      13.02.2025
Date of delivery of             :      15.05.2025
Judgment & order
                                        YES     NO
Whether fit for reporting       :               √



        HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA

                        JUDGMENT & ORDER


            The   appeal      arises   out     of       the   judgment    dated

09.02.2024 passed by the learned District Judge, Gomati,

Udaipur in Title Appeal No.17 of 2018 and the related decree

thereof, whereby the dismissal decree dated 18.08.2018 of the

Court of the learned Civil Judge (Sr. Division), Udaipur, Gomati

passed in Title Suit (P) No.02 of 2015 was affirmed.

[2] Before adverting to the nature of the suit and the

reliefs claimed therein, the plaintiffs' case in brief is required to

be canvassed first for convenience of discussions.

According to the plaintiffs, one Birbal Das was the

original owner of 1.599 acres of land as described in Schedule-A

of the plaint, who died in the year 1970 behind his wife, 2 sons

and 2 daughters. His wife was also died thereafter leaving

behind her 2 sons namely, Subal Chandra Das (now dead),

Umacharan Das (now dead) and 2 daughters, namely

Pushparani Dey (Das) (now dead) and Jogomaya Dey (Das)

(defendant no.8). After said Subal Chandra Das and his wife

died, the defendant-respondent Nos.1 to 7 as their ultimate

legal representatives inherited their properties. The said

Umacharan Das is also no more and the present plaintiff-

appellants are his ultimate regal representatives. Said

Pushparani Dey (Das) also died leaving behind the respondents-

defendant Nos. 9(i) to 9 (vii) as her legal representatives. The

respondent no.9(i) during pendency of the appeal has expired

and his name has now been deleted.

[3] According to the plaintiffs, said 2 daughters and 2

sons of Lt. Birbal Das inherited his property i.e. Schedule- A land

in 1/4th share each. From the joint stock, the sons of Late

Umacharan Das are possessing the some portion of the land

which has been described in the Schedule-C of the plaint and

the sons of Lt. Subal Chandra Das i.e. the defendant Nos.1 to 3

are possessing the some portions of the land therefrom by

amicable arrangement with the said plaintiffs which are

mentioned in Schedule-D of the land. According to the plaintiffs,

0.030 acres of land has been sacrificed for use as a pathway for

the general public and another piece of 0.030 acres of land was

allowed to be used by the Social Welfare Department, wherein

at present, the plaintiffs have no claim. Both the land parcels

are described in Schedule-B of the plaint.

[4] According to the plaintiffs, the daughter of said Late

Birbal Das namely Pushparani Dey (Das) executed one Will

bearing No.III-3 dated 01.02.1993 bequeathing her share in

favour of her brother, late Umacharan Das and therefore, the

plaintiffs became entitled to her 1/4th share in the joint stock in

addition to their own 1/4th share therein. It is also further stated

that said Pushparani Dey (Das) during her lifetime also sold out

0.100 acres of land described in the Schedule-F land to the

defendant-respondent No.10, Sujit Bhowmik by a registered

deed No.I-446 dated 21.09.2007, mentioned in Schedule-G of

the plaint. It is also stated that Umacharan Das along with some

legal representatives of late Subal Chandra Das filed a suit

seeking declaration of right, title and interest in 1/4th share each

of Pushparani Dey (Das) and Jogomaya Dey (Das) bearing Title

Suit No.03 of 2008 in the court of the Civil Judge (Jr. Division),

Amarpur, wherein said sale of land by Pushparani Dey (Das) to

defendant No.10 was also challenged and the defendant No.10

also made party therein. On thorough contest, the said suit was

dismissed, without giving any decision regarding the prayer of

cancellation of said deed and thereafter, they preferred a first

appeal in the court learned District Judge, the then South

Tripura District, Udaipur which was also dismissed. Then they

preferred a second appeal bearing RSA No.43 of 2011 in this

Court which was also dismissed on 23.08.2013 but despite the

same, again the present plaintiff-appellants claimed in the

instant suit that they are willing to purchase the said land and

have prayed before the trial court to allow them to deposit

Rs.75,000/- (consideration price of the defendant No.10) in the

court with a declaration that the said deed may be declared as

null and void.

[5] It is also stated by the plaintiffs that said Jogomaya

Dey (Das) (the defendant No.8) executed one Will on

01.02.1993 in favour of the defendant Nos.2 & 3 by bequeathing

her 1/4th share therein to them and simultaneously, the

defendant Nos.4 to 7 i.e. the daughters of late Subal Chandra

Das also relinquished their shares in the joint property in favour

of the defendants No.1 to 3 and therefore, they also became

entitled to 1/3rd share each in the 1/4th share portion of said

late Subal Chandra Das and further, the defendants No.2 and 3

will get 1/2 share each in the said 1/4th share of Jogomaya Dey

(Das). Similarly, daughters of Umacharan Das have also

relinquished their shares in favour of their brothers, the

plaintiffs No.1 to 5 in the joint property which they will get now.

It is also stated that there is a pond in schedule-A land jointly

used by the plaintiff Nos.1 to 5 and the defendant Nos.1 to 3

which has been described in Schedule-E of the plaint. Therefore,

according to the calculation of the plaintiffs, the plaintiff Nos.1

to 5 are now entitled to get 1/10th share each in Schedule-A

land and the defendant No.1 is entitled to 1/12th share therein

and the defendant Nos.2 to 3 are entitled to 5/24th share each of

the said property. Finally, the plaintiffs in the said suit prayed

for the following reliefs:

(i) To declare that the plaintiff Nos.1 to 5 and the defendant Nos.1 to 3 are the absolute owners and possessors of the whole Schedule-A land;

(ii) To declare that the plaintiff Nos.6 to 8 have relinquished their shares in favour of the plaintiff Nos.1 to 5 and the defendant Nos.4 to 8 have relinquished their shares in favour of the defendant Nos.1 to 3 and that the defendant Nos.8 & 9 have no share in the Schedule-A land;

(iii) To declare that the defendant No.10 did not acquire any right, title and interest over the Schedule-F land by his purchase deed dated 21.09.2007 and also for cancellation of his purchased deed No.I-446 dated 21.09.2007;

(iv) To direct the plaintiffs and the defendant Nos.1 to 3 to pay sale price of Rs.75,000/- to the defendant No.10 or to deposit the same in the court and;

(v) To declare that the plaintiff Nos.1 to 5 are entitled to 50% share in Schedule-A land and the defendant Nos.1 to 3 are entitled to 1/12th share and 5/24th share each in the Schedule-A land and finally, to pass a preliminary decree declaring said shares of the plaintiffs No.1 to 5

and the defendant Nos.1 to 3 and in case of failure of the parties to partition their land, to pass a final decree.

[6] The legal representatives of late Pushparani Dey

(Das) and the defendant No.10 contested the said suit

contending that the whole property of late Birbal Das was not

brought into hotchpot and no Will was executed by their mother

in favour of Umacharan Das and 2 sons of Late Subal Chandra

Das and according to them, as said Pushparani Dey (Das) would

live with her husband in the Schedule-A land itself after her

marriage, said Late Birbal Das gave her 5 gandas of land. They

have also stated that some legal heirs of Subal Chandra Das,

namely Sadhana Rani Das, Krishnarani Dey, Bishu Rani Dey and

others sold out 0.130 acres to Hiralal Roy vide registered deed

No.I-50 dated 25.01.1993 and said Umacharan Das also sold

out 0.21 acres of land to one Gopal Chandra Das and late Subal

Chandra Das and Umacharan Das also sold out some other lands

to various persons from the undivided property. Other

defendants did not contest the suit by filing any written

statement.

[7] During trial, from the side of the plaintiffs 13 nos. of

witnesses were examined and from the side of the contesting

defendants, 4 witnesses were examined. The plaintiffs also

proved 3 numbers of Khatians, 2 numbers of survival

certificates, 2 numbers of Will, certified copy of one registered

sale deed and certain documents of previous suit bearing

No.T.S.03 of 2008. From the side of the contesting defendants,

they also proved 11 numbers of Khatians, one certified copy of

judgment passed in RSA No.43 of 2011 and one Will dated

12.10.2007. They also proved certified copy of the sale deed

No.I-50 dated 25.01.1993 executed by Sadhana Rani Das and

others in favour of Hiralal Roy (Exbt.N) and another certified

copy of the sale deed bearing No.I-140 dated 28.02.1979

executed by Umacharan Das in favour of Gopal Chandra Das

(Exbt.O).

[8] The learned Trial Court dismissed the suit by

disbelieving the Will executed by Pushparani Dey (Das) in favour

of Umarcharan Das. The learned Trial Court also observed that

as Jogomaya Dey (Das) was alive, any will executed by her had

no force. The learned Trial Court also observed that no deed of

relinquishment was proved to establish that the plaintiff Nos.6 to

8 had relinquished their shares in favour of the plaintiff Nos.1 to

5 and that in view of the judgment passed by the learned Civil

Judge (Jr. Division), Amarpur in Title Suit No.03 of 2008 and the

subsequent judgment of this Court, the sale transaction in

favour of the defendant No.10 by Pushparani Dey (Das) was a

valid one. Learned Trial Court ultimately rejected the claim of

the plaintiffs. The first appellate court also maintained the said

findings.

[9] The second appeal has been admitted on the

following substantial questions of law:

"Whether the judgment and decree of learned first appellate court and trial court are perverse on the ground of rendering decisions without framing any issue on partition of the suit land."

[10] Mr. D.K. Das Choudhury, learned counsel appearing

for the appellants narrating the entire facts as canvassed in the

pleadings submits that despite a specific prayer of partition, no

issue on the partition was framed and even no decision on that

point was also given by Ld. Trial Court despite the fact that said

Court specifically observed that the parties were entitled to get

their respective shares. In spite of making such observations,

learned counsel, Mr. Das Choudhury submits, the suit was

dismissed and the first appellate court also committed error by

not interfering with such findings of the learned trial court.

Finally, learned counsel submits that the suit is required to be

remanded to the learned trial court for framing a specific issue

regarding the relief of partition as claimed and to decide the

same accordingly.

[11] Mr. N. Choudhury, learned counsel appearing for the

respondent Nos.9(ii) to 9(vi) submits that the partition may be

effected in equal 1/4th shares each for his set of legal

representatives i.e. two deceased sons and one deceased

daughter of said Birbal Das and 1/4th share in favour of

Jogomaya Das. However, it is also argued by learned counsel

that the entire property was not included in the suit and the

documents of such transfer were also proved into evidence from

the side of the said contesting defendants. Mr. Choudhury,

learned counsel finally submits that the hands of the plaintiffs'

are unclean and therefore, dismissal of the suit requires no

interference.

[12] On consideration of the submissions of both sides and

the materials placed in the evidence, it appears that under

Khatian Nos.1086/1 and 1086/2 of Mouza-Amarpur, the total

area of land that stands jointly in the name of the ultimate legal

representative of Late Birbal Das is 1.599 acres. The plaintiffs

No.1 to 5 and the defendants No.1 to 3 have prayed for a

declaration of their ownership and partition of the said total

1.599 acres of land, though according to the plaintiffs, they are

disclaimers over 0.06 acres of land under Schedule-B which

have been sacrificed for a pathway and Samaj Shiksha Kendra

under Social Welfare Department but such land has not been

excluded from Schedule-A land with reference to their prayer for

partition. From the certified copy of the sale deed No.I-140

dated 28.2.1979 under Exbt.O, it appears that the predecessor

of the plaintiffs, namely Umacharan Das sold out 0.21 acres of

land from the joint property to one Gopal Ch. Das and vide sale

deed No.I-50 dated 25.1.1993 (Exbt.N), the legal heirs of late

Subal Chandra Das also sold out 0.130 acres of land to one

Hiralal Roy. In that deed also, they claimed that they were

entitled to 1/4th share in the total land by way of inheritance but

they totally suppressed the said facts in the plaint and also did

not include said lands in the description of the suit property,

rather they came up with a fresh story of entitlement of a much

higher share in the suit property.

[13] On taking into consideration the judgment dated

23.08.2013 passed by the Coordinate Bench of this Court in RSA

No.43 of 2011 (Exbt.6), it appears that second appeal ultimately

arose out from the decision of the learned Civil Judge (Jr.

Division), Amarpur passed in Title Suit No.03 of 2008, wherein

said late Umacharan Das and some legal representatives of Late

Subal Chandra Das were the plaintiff-appellants and legal

representatives of late Pushparani Dey (Das), Jogomaya Das

(the respondent No.9) and Sujit Bhowmik (respondent No.10)

were also party wherein those plaintiffs even claimed adverse

possession in the suit land against their co-sharer and the said

deed executed by Pushparani Dey (Das) in favour of Sujit

Bhowmik was also challenged but ultimately, this Court affirmed

the findings of the learned District Judge, South Tripura that

transfer of land by the defendant No.1 to defendant No.3 could

not be held illegal but that was to be construed as the transfer

of her share or a portion of her share since there was no

partition of the Schedule-A land. Despite the said matter as

already been settled in the first round of litigation up to the level

of this court, again attempts have been made by the present

plaintiff-appellants to get the said sale deed canceled and to

somehow grab the said land through judicial pronouncement.

[14] The plaintiffs have also brought forward the story of

relinquishment of share of the plaintiff Nos.6 to 8 in favour of

the plaintiff Nos.1 to 5 and relinquishment of share of the

defendant Nos.4 to 7 in favour of the defendant Nos.1 to 3 but

no deed of relinquishment has been proved in the record though

it is settled by the pronouncement of the Hon'ble Apex Court in

case of Kuppuswami Chettiar v. Arumugam Chettiar, (1967) 1 SCR

275 that any such relinquishment can be effected on registration

of a deed of relinquishment where the document clearly

discloses an intention to effect a transfer. The relevant

paragraph of the said judgment reads thus:

4. The question is whether Ex. B-1 on its true construction conveyed properties to the respondents. In T. Mammo v.K. Ramunni, AIR 1965 SC 337, this Court held:

"a registered instrument styled a release deed releasing the right, title and interest of the

executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer".

In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. Exhibit B-1 stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument, on its true construction, took effect as a gift. The gift was effectively made by a registered instrument signed by the donor and attested by more than two witnesses."

There is no scope of transfer by way of

relinquishment or release orally of any immovable property or

interest therein, more particularly when the value of the same is

Rs.100/- or upwards. If such relinquishment or release is

executed out of love and affection and in the nature of gift, then

apart from requirement of registration of the same, such deed is

required to be attested by atleast two witnesses.

[15] It appears that this a chance litigation instituted by

the plaintiffs with certain pleas having no legal and factual basis,

just to gamble in litigation with vexatious claims. Such attempt

made by the plaintiffs is nothing but abuse of process of a law.

Learned Trial Court ought to have imposed compensatory cost