Tripura High Court
Sri Sunil Chandra Bhowmik vs Sri Hemendra Sarkar on 7 February, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA NO.8 OF 2013
1. Sri Sunil Chandra Bhowmik,
son of late Ambika Charan Bhowmik @ Sarkar
2. Sri Anil Chandra Bhowmik,
son of late Ambika Charan Bhowmik @ Sarkar,
-both are residents of village:Bishalgarh, Khoaria, P.O.
Nabinagar, P.S. Bishalgarh, District: Tripura West at
present Sepahijala
..................... Appellants
- Vs -
1. Sri Hemendra Sarkar
2. Sri Brajendra Sarkar
3. Sri Anu Sarkar
-all are sons of late Narendra Sarkar,
residents of village: Bishalgarh,
Khoaria, P.O. Nabinagar,
P.S. Bishalgarh,
District: Tripura West at present Sepahijala
4. Smt. Usha Debnath,
wife of Sri Haralal Debnath,
resident of Anandanagar,
P.S. Sreenagar, District: Tripura West
5. Smt. Anju Debnath,
wife of Sri Dilip Debnath,
resident of Dukli, P.S. Amtali,
District: Tripura West
6. Smt. Sanju Debnath,
wife of Sri Chitta Debnath,
resident of Tolakona,
P.S. Ranirbazar,
District: Tripura West
Page 1 of 13
RSA 8 of 2013
7. Smt. Manju Debnath,
wife of Sri Ranjan Debnath,
resident of Nalgaria (near Radio Station),
P.S. Ranirbazar,
District: Tripura West
8. Sri Gopal Debnath,
son of late Lalit Debnath
9. Sri Indrajit Debnath,
son of Sri Gopal Debnath,
-both are residents of village:Dukli,
P.S. Amtali, District: Tripura West
10. Smt. Mousumi Debnath,
wife of late Biswajit Debnath,
11. Master Nantu Debnath (Minor),
son of late Biswajit Debnath
12. Master Jantu Debnath (Minor),
son of late Biswajit Debnath
13. Sri Uttam Debnath,
son of late Makhan Debnath,
resident of Purathal, P.S. Bishalgarh,
District: Tripura West
[Proforma defendant-respondents No. 11 and 12 being
minors are represented by their mother, natural guardian,
the proforma defendant-respondent No.10]
............................ Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellants : Mr. D.R. Choudhury, Advocate
For the respondents : Mr. S.M. Chakraborty,
Senior Advocate
Date of hearing & order : 07.02.2017
Whether fit for reporting : YES
Page 2 of 13
RSA 8 of 2013
JUDGMENT & ORDER (ORAL)
Heard Mr. D.R. Choudhury, learned counsel appearing for the plaintiff-appellants as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. S. Saha, learned counsel appearing for the respondents.
[2] This is an appeal under Section 100 of the CPC from the judgment dated 29.09.2012 delivered in Title Appeal No. 28 of 2010 by the Addl. District Judge, Court No.3, Agartala, West Tripura. The said judgment is a common judgment delivered in Title Appeal No.27 of 2010 and Title Appeal No.28 of 2010. [3] At the time of admission of this appeal following substantial questions of law were formulated by this court:
(i) Whether the judgment and decree suffer from perversity
(ii) Whether the courts below failed to appreciate the implication of Section 43 of TLR and LR Act, 1960.
Liberty was granted to the plaintiff-appellants to raise any other substantial question of law at the time of hearing. [4] By exercising that liberty the plaintiff-appellants filed an interlocutory application being IA 126 of 2017 in this court urging to formulate two more substantial questions of law, but by the order passed today the said interlocutory application has been rejected assigning reasons.
Page 3 of 13 RSA 8 of 2013 [5] The essential fact as would be required to get the perspective for appreciating the challenge in this appeal requires to be noted at the outset. The plaintiff-appellants filed the suit being Title Suit No.02 of 2009 for declaration and recovery of possession of the suit land measuring 0.25 acre pertaining to Mouja Krishnakishorenagar, Tehsil Ghaniamara under old Khatian No.5498 and 7040, RS Khatian No.101/3 under old plot No. 14117 corresponding to the new plot No.8982 and the description of the land in question is available in the schedule appended to the plaint.
[6] The case of the plaintiff-appellants is that their father Ambika Charan Bhowmik got the suit land by way of exchange of their property in the erstwhile East Pakistan with Sobi Mohammad Sikandar Ali and Harmuzernesa alias Harmuza Khatun. It is the further case of the plaintiff that their father also purchased some land adjacent to the suit land from one Julfu Miah. After the exchange of the suit land, the record of right was created in the name of Surabala Debi, mother of the plaintiffs. Later on, said Surabala Debi transferred the suit land to her husband, Ambika Chararan Bhowmik. Thus the record of right was created in favour of Ambika Charan Bhowmik under the Khatian No.101/3. On December, 1999 the defendants requested Ambika Charan Bhowmik to live on the suit land after the construction of the huts in the adjacent northern side of the suit land and when asked, they would vacate the suit land. The defendants were requested Page 4 of 13 RSA 8 of 2013 to vacate the suit land in the middle of the year 2002, but on 09.09.2003 the defendants had denied to vacate the suit land. The defendants managed to get the name of Julfu Miah recorded as forceful possessor in column No.24 of the relevant khatian. This dispute was taken to the Panchayat and a meeting was held on 16.10.2008. In the meeting, the defendants proposed to purchase the suit land on consideration of Rs.30,000/-. But the plaintiffs were not ready to sell the suit land as the suit land is one of the memorials of their father. Hence, the suit has been instituted by the plaintiff-appellants seeking the relief as stated above.
[7] The defendant-respondents did not only file the written statement but they have set up a counter claim in T.S. (CC) 15 of 2009 seeking a decree of specific performance of contract which was orally made on 16.10.2008 and an alternative decree of declaration of title by adverse possession along with perpetual injunction against the plaintiffs of T.S. 02 of 2009. Initially, the decree of specific performance was granted by the trial court, the court of the Civil Judge, Junior Division, Bishalgarh, West Tripura by dismissing the prayer for declaration on adverse possession. As consequence, the suit of the plaintiff-appellant was dismissed. In this background, the plaintiff-appellants filed those two appeals against the common judgment passed in the Title Suit No.T.S. 02 of 2009 and T.S.(CC) 15 of 2009 [counter claim] under Section 96 of the CPC in the court of the District Judge, Page 5 of 13 RSA 8 of 2013 West Tripura, Agartala. In the course of the time, the said appeals were heard and disposed of by the impugned judgment dated 29.09.2012. By the said judgment dated 29.09.2012, both the counter-claim and the suit have been dismissed. But the defendant-respondents did not prefer any appeal against the judgment dated 29.09.2012 passed in the appeal that emerged from the counter-claim. Thus this appeal is confined to the issues related in the title suit being T.S.02 of 2009. The plaintiff- appellants have submitted that both the courts below misconstrued the law while dismissing the prayer for decree of declaration and recovery of khas possession set up thereon. [8] Mr. D.R. Choudhury, learned counsel appearing for the appellants has submitted that the defendants by way of admitting the existence of an agreement to sale as have admitted to the title of the plaintiff-appellants. Moreover, the name of the predecessor of the plaintiffs namely Ambika Charan Bhowmik is recorded in the record of right. Mr. Choudhury, learned counsel has submitted that if there is an admission of title such admission can be treated as a substantive piece of evidence for coming to an inference for declaring the title, unless of course it is shown by evidence that such admission is either not admission nor this admission can be admitted in the evidence. He has further submitted that in terms of Section 43(3) of the TLR and LR Act, 1960 unless rebutted by evidence, the entries appearing in the record of right are to be treated as correct. Mr. Choudhury, Page 6 of 13 RSA 8 of 2013 learned counsel has submitted that nobody has raised any question regarding the entries in the khatian, regarding the name of the predecessor of the plaintiff for any reason or as incorrect. Rather when in the form of admission the title is acknowledged, a conjoint reading of entries in the khatian and the admission that has been made by way of pleading, it itself should have persuaded the trial court to declare the title and consequential relief of recovery of possession. But by observing that the plaintiffs failed to adduce any exchange deed or sale deed has failed to discharge their burden to prove the title, the trial court has caused serious miscarriage of justice. It has been observed, according to Mr. Choudhury, learned counsel, erroneously that the relief of declaration of title cannot be given on the basis of mere admission, it requires production of document. [9] Mr. D. R. Choudhury, learned counsel appearing for the appellants has submitted further that the even the first appellate court has discarded the khatian as the documentary evidence of title. In this juncture, Mr. Choudhury, learned counsel has emphasized that when in the relevant column, the name of the title holder is recorded, that is recorded or deemed to have been recorded on the basis of the title deed. Thus, the entry itself presupposes an existence of the title deed. However, on the query of the court Mr. Choudhury, learned counsel has fairly submitted that the plaintiffs did not produce any title deed meaning the deed of exchange as referred or the sale deed executed by Surabala Page 7 of 13 RSA 8 of 2013 Debi, even not their certified copies following the procedure of Section 65 of the Evidence Act.
[10] From the other side, Mr. S. Saha, learned counsel appearing for the respondents has submitted that the title has to be proved based on the title deed. The record of rights for that matter cannot be treated as the relevant document for declaring the title in favour of someone. It is well settled position of law that the khatian only denotes the possession, not the title and it cannot be treated as the document based on which a title can be declared by a civil court. That apart, Mr. Saha, learned counsel has contended that the admission as referred by the plaintiff- appellants is not conclusive in nature, because there is no such admission by which it can be inferred that the defendant- respondents have admitted the title of the plaintiff-appellants. However, Mr. Saha, learned counsel has submitted that the main relief in the counter-claim was for a decree of specific performance on the basis of the oral agreement that was raised in the village meeting which was held on 16.10.2008. When Mr. Saha, learned counsel was queried by this court how without admitting the title of the contracting person, claiming title over the land in question, such contract can be formed. In this regard, Mr. Saha, learned counsel has responded by saying that the approach adopted by the Panchayat has been acknowledged, even in the plaint, the plaintiffs have categorically stated that the plaintiffs did not agree to sell their land to the defendants and as Page 8 of 13 RSA 8 of 2013 such there was no conclusive contract. On the basis of such finding as returned, the counter-claim was dismissed by the first appellate court. Mr. Saha, learned counsel has fairly submitted that since there is no appeal against the said judgment passed in the first appeal being Title Appeal No. 27 of 2010, these issues are no more in the realm of dispute inasmuch as the said judgment against the counter-claim has reached its finality. [11] Having regard to the submission of the learned counsel for the parties, this court is of the view that the following pertinent questions emerged for consideration by this court:
(i) Whether any Civil Court can declare the title without the basic document of title or on admission?
(ii) Whether the entry made in the khatians [Exbt-
2, 3, 6 and 7 as marked in the Title Suit No.02 of 2009] can be treated as the substantive evidence to declare title in favour of the plaintiff-appellant having regard to the provisions of Section 43(3) of the TLR and LR Act, 1960?
[12] Whether there is any admission in terms of Section 17 of the Evidence Act or under Order 12 Rule 6 of the CPC? What has been admitted by the defendant-respondents is the pleading of the plaintiffs that when the defendant-appellants were refusing to vacate the suit land, there was a meeting in the panchayat held on 16.10.2008. In that meeting, the defendants proposed to purchase the suit land with a consideration of Rs.30,000/-. This part, no doubt by the written statement has been admitted by the defendant-respondents, but their admission is confined to that the Page 9 of 13 RSA 8 of 2013 said consideration money was settled in consideration of their long possession over the suit land. The first appellate court has categorically observed that there was no enforceable valid contract in the form of the said deliberation. Moreover, it is found in the pleading that the plaintiff-appellants have categorically stated that they did not agree to the said proposal. [13] Mr. Choudhury, learned counsel has laboured hard to show this court that the mere agreeing to purchase the suit land on a consideration money of Rs.30,000/- the defendant- respondents have acceded to the title. Whether on the basis of such admission, can a title be declared? The law is no doubt is well settled. Such admission can be treated as at best as an estoppel by conduct but that would not form the substantive evidence for declaring the title in favour of the plaintiffs. In Union of India vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148, the apex court had occasion to deal with a similar issue when it has been held that admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of Page 10 of 13 RSA 8 of 2013 the Evidence Act. Section 58 of the Evidence Act provides that a fact may not need to be proved in any proceeding which the parties thereto agreed to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands or which they admitted by their pleading, even in that case, the court may, in its discretion, even if such a admission has been made by the party, require the fact admitted to be proved otherwise than by such admission. In fact, admission by a party may be oral or in writing. `Admissions' are governed under Sections 17 to 31 of the Evidence Act and such admission can be tendered and accepted as substantive evidence. While admission for purposes of the trial may dispense with proof of a particular fact. Section 58 of the Evidence Act deals with admissions during trial i.e. at or before the hearing, which are known as judicial admissions or stipulations and dispense with proof. Admissions are not always conclusive proof but may at times operate as estoppel against its maker. Documents are necessarily either proved by witness or marked on admission. [14] In this case, the admission has been derived from a resolution of the Panchayat and since the plaintiffs assert unequivocally that there is no offer from the plaintiffs to sell the suit land on consideration of Rs.30,000/-, it thus surfaces that, that was not a direct admission of title of the plaintiff, it was made as a gesture to just get over the impending breach of peace. The other point that has been so succinctly raised by Mr. Choudhury, Page 11 of 13 RSA 8 of 2013 learned counsel is that, under Section 43(3) of the TLR & LR Act, 1960, the entries made in the record of right, unless rebutted by satisfactory evidence, has to be treated as correct and on the basis of that the court can declare the title.
[15] This court is constrained to observe that in a catena of decisions, the apex court has time and again decided that the record of rights by whatever name they are known in a particular region, only records the incidence of possession. Its entry regarding the title is not substantive piece of evidence and by virtue of these entries unless it is proved that except the khatian, there could not be any deed of title, no title can be proved. On the basis of the entries made in record of right, no title can be declared, inasmuch as the khatian is not the proof of transfer of immovable property. From the pleaded case of the plaintiffs, it surfaces that their specific case is that the original owner executed a power of attorney in favour of the predecessor of the plaintiff-appellants and by virtue of that power of attorney he executed a deed of exchange in favour of his wife, Smt. Surabala Debi, and subsequently Surabala Debi executed a fresh deed of sale in his favour.
[16] Mr. Choudhury, learned counsel appearing for the appellants has fairly submitted that neither the first deed of exchange as executed by Ambika Charan Bhowmik in favour of Surabala Debi nor the sale deed as executed by Surabala Debi in favour of Ambika Charan Bhowmik have been admitted in the Page 12 of 13 RSA 8 of 2013 evidence. If the deed of exchange is registered, even if for any reason those were not available or those were destroyed, nowhere in the plaint, the plaintiffs have disclosed, what attempt they had taken for taking the certified copies of those documents. Even the subsequent sale deed as executed by Surabala Debi has not been produced before the court. Clearly there was no deed of title before the trial court or the first appellate court. In such circumstances, simply based on the entry in the record of right the Civil Court cannot declare the title in favour of the person whose name is shown as the holder of title.
[17] Having observed thus, this court does not find any infirmity in the impugned judgment and therefore, this appeal stands dismissed.
Draw the decree accordingly.
Send down the LCRs thereafter.
JUDGE Moumita Page 13 of 13 RSA 8 of 2013