Tripura High Court
Smt. Anjali Sarkar vs Sri Bibek Roy on 14 May, 2018
Equivalent citations: AIRONLINE 2018 TRI 250
HIGH COURT OF TRIPURA
AGARTALA
REV.PET.No.34 of 2017
1. Smt. Anjali Sarkar,
wife of late Dilip Sarkar,
H/No.64, Indranagar, P.O. Indranagar,
P.S. East Agartala, District: Tripura West,
PIN:799 006
2. Smt. Rakhi Sarkar,
daughter of late Dilip Sarkar,
wife of Sri Tapas Deb,
Dhaleswar Road No.16, P.O. Dhaleswar,
P.S. East Agartala, District: Tripura West
3. Sri Dipak Sarkar,
son of late Dilip Sarkar,
H/No.64, Indranagar, P.O. Indranagar,
P.S. East Agartala, District: Tripura West,
PIN:799 006
4. Ms. Rupali Sarkar,
daughter of late Dilip Sarkar,
H/No.64, Indranagar, P.O. Indranagar,
P.S. East Agartala, District: Tripura West,
PIN:799 006
5. Smt. Sonali Sarkar,
daughter of late Dilip Sarkar,
wife of Sri Dibakar Naha,
resident of Kumari Tila, P.O. Abhoynagar,
Agartala, P.S. East Agartala, District: Tripura West,
PIN:799 005
----Petitioner(s)
Versus
1. Sri Bibek Roy,
son of late Mahendra Roy,
resident of Banamalipur, P.O. Agartala,
P.S. East Agartala, District: Tripura West,
PIN:799 001
2. Sri Chandan Kar,
son of late Biraj Ranjan Kar,
resident of Dhaleswar Road No.3,
P.O. Dhaleswar, P.S. East Agartala,
District: Tripura West
Page 2 of 10
3. Sri Apurba Sarkar,
son of late Abani Sarkar,
resident of Indranagar, P.O. Indranagar,
P.S. East Agartala, District: Tripura West
4. Sri Shankar Kumar Paul,
son of late Sukumar Chandra Paul,
Chitta Ranjan Road, P.O. Agartala,
P.S. East Agartala, District: Tripura West
5. Sri Kalidas Chakraborty,
son of late Akhil Chandra Chakraborty,
resident of 7, Sitaram Road,
Basdrony, P.S. Jadavpur,
District: South 24 Parganas,
West Bengal
---- Respondents
For Petitioner(s) : Mr. D.R. Chowdhury, Adv.
Mr. S. Sarkar, Adv.
For Respondent(s) : Mr. S.M. Chakraborty, Sr. Adv.
Ms. M. Chakraborty, Adv.
Whether fit for
Reporting : NO
HON‟BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
14.05.2018
Heard Mr. D.R. Chowdhury, learned counsel appearing for the review petitioners, the appellants in Second Appeal being RSA No.47 of 2012 which has been dismissed by the judgment and order dated 30.05.2017 by this court. Being aggrieved by the said judgment the present petition under Order XLVII Rule 1, CPC has been preferred. Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. M. Chakraborty, learned counsel appears for the respondents. Page 3 of 10
02. Mr. D.R. Chowdhury, learned counsel appearing for the review petitioners has submitted that after the second appeal was admitted, the review petitioners being the appellants filed one application under Order XLI, Rule 27, CPC for accepting two khatians being Khatian No.2602/1 and Khatian No.2602/2 as the additional evidence, to prove the entry made in the column No.16. In Khatian No.2602/1 against old plot No.3102 [corresponding the new plot No.6301] it has been noted that the original plaintiff is the forcible occupier since 1987. The similar entries are also available in Khatian No.2602/2 in respect of plot No.3106, 3108 (Part) [corresponding new plot No.3607] plot No.3201 [corresponding new plot No.6307] and plot No.3104 [corresponding new plot No.6308].
03. Mr. Chowdhury, learned counsel appearing for the petitioners having referred the orders passed by this court in IA No.498 of 2016 has submitted that this court by the order dated 26.05.2016 listed the said interlocutory application on 13.06.2016 for giving the respondents an opportunity to file their objection. But the appeal was heard on 30.05.2017. Therefore, those two khatians were not taken into consideration as the additional evidence. When this court asked Mr. Chowdhury, learned counsel that whether the counsel for the petitioners had pointed out the pendency of the said application to the court, he has candidly submitted Page 4 of 10 that, that was not done erroneously. In the interest of the substantive justice, this court allow Mr. Chowdhury, learned counsel to place his submission on the premises as if those khatians were to be considered by the court as the additional evidence and what the impact be on the case.
04. Mr. Chowdhury, learned counsel has submitted that in view of those entries that it is evidently clear that the respondent No.1 in the Second Appeal 47 of 2012 or his predecessor was the forceful occupier since 1987 and at the time when the suit was instituted 12 years [the limitation prescribed for recovery] had elapsed and as such under Article 65 of the Limitation Act his title by prescription had matured. But for non-consideration of those two documents the said judgment went contrary. Mr. Chowdhury, learned counsel has further submitted that true it is that those two khatians were not admitted in the appeal as the additional evidence can be accepted in the rare context inasmuch as the appeal under Section 100 of the CPC abhors factual inquiry. That apart, Mr. Chowdhury, learned counsel has submitted that if these documentary evidence are considered for the reason that the documentary evidence occupies a paramount position vis-a-vis the oral evidence, then the finding as returned by the first appellate court would have been interfered.
05. It is to be noted that the suit filed by the review petitioner was decreed by the trial court but, the first Page 5 of 10 appellate court reversed that the judgment and for that reason the same was impugned in the Second Appeal being RSA No.47 of 2012. Mr. Chowdhury, learned counsel as a final statement has submitted that the first appellate court did not consider that aspect of the matter and technically discarded the draft khatian where the similar entries were made in favour of the original plaintiff and allowed the appeal by reversing the finding of the trial court. As such, if the documentary evidence meaning the draft khatian vis-a- vis the finally published khatian as stated above are considered, there would be irresistible conclusion that the plaintiff has proved that he was in the possession. Mr. Chowdhury, learned counsel has submitted that on interference of the judgment of the first appellate court and setting aside the same the judgment and decree of the trial court should be restored.
06. From the other side, Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. M. Chakraborty, learned counsel has submitted that the first appellate court has considered all and every aspect as raised by the review petitioner in this review petition. Even in the judgment from which this review petition has emerged those have been taken care of. For that purpose, Mr. S.M. Chakraborty, learned senior counsel has referred to the paragraph 8.6 (the later part) and the paragraph 8.7. In Paragraph 8.6 it has been observed that the respondent No.1 (the review Page 6 of 10 petitioner) did not adduce any documentary proof that in the year 1987 the respondent No.2 had any appointed attorney at all. The appellants also did not prove any deed of power of attorney executed by the respondent No.2. However, from the purchase deed of the appellant nos.3 & 4 (Exhibit A), it is found that one Keshab Paul executed the said sale deed as the attorney of the respondent No.2 and in the recital of the deed, the number and date of said deed of power of attorney has been mentioned as No. IV-00374 dated 20.08.2003 of sub-registry office of Bidhannagar, Salt lake. Said Keshab Paul examined himself as D.W.5 and deposed in his examination in chief that he was appointed by the respondent No.2 as attorney only on 20.08.2003 to look after his property and the said date of appointment of attorney was also not denied by the respondent No.1 (in the appeal) during his cross examination. So, naturally it has been established that respondent No.2 appointed his attorney only on 20.8.2003 that itself belies the entire story or respondent No.1 that in the year 1987 the respondent No.2 got the knowledge through his attorney about adverse possession of respondent No.1. Thus, the respondent No.1 failed to prove to the satisfaction that the respondent No.2 had his knowledge since 1987 about the adverse possession of the respondent No.1.
Page 7 of 10
07. Mr. S. M. Chakraborty, learned senior counsel appearing for the respondents has also referred the paragraph 8.7 of the judgment dated 23.07.2012 as delivered in Title Appeal No.41 of 2010 emerging from the judgment dated 29.09.2010 delivered in Title Suit No.116/04 by the Civil Judge (Junior Division), Court No.1, Agartala, West Tripura. The said paragraph reads as follows:
"Now, to see the position of record of right of the suit land, let us have a look into the documents under Exhibit - 1 series i.e the certified copy of khatian os.5337 jer 5338, 8052 and Porcha no.5758 of Mouja Indranagar. The suit land pertains to khatian no.5337 only and as such, other khatians/Porcha are not relevant for this case. In khatian no.5337, name of the respondent no.1 has been shown as „forceful possessor‟ of suit land since 1987. In the cross examination, the respondent no.1 has admitted that his name was recorded in said 24th column of khatian by the settlement staff as on inquiry respondent no.1 informed them that he had been possessing the suit land by cultivating the same. The suit land being a pond and embankment thereof, it is not clear how he was cultivating the same. A per section 2(b) of T.L.R. & L.R. Act, 1960 though the word „pisciculture‟ is included within definition of word „agriculture‟, but the same does not necessarily mean to include the word „cultivation‟ in pisiculture as one can never cultivate a pond. Moreover, from the above said version of respondent no.1, it is clear that said comment was incorporated by settlement staffs just on the basis of unilateral statement of respondent no.1 and not hearing the respondent no.2. This court also further agrees with the submission of Ld. Senior Counsel, Mr. S.M. Chakraborty that under T.L.R. & L.R. Act, 1960, the settlement authority is not empowered to decide the matter of any such „adverse possession‟ of any person. Though the word „forceful possession‟ is mentioned in the khatian, but the forceful possession cannot always be treated as adverse possession unless other criterion of adverse possession such as knowledge of true owner, open and uninterrupted hostile possession etc. are fulfilled. Thus, incorporation of any such comment in the khatian itself is not sufficient to pass a decree of adverse possession, unless other factors are proved."
08. Mr. S. M. Chakraborty, learned senior counsel has further submitted that on the day of hearing i.e. 30.05.2017, the learned counsel for the appellant had clearly submitted before this court that they would not press their application Page 8 of 10 for abduction of the additional evidence. On that premises, the hearing had taken place and thereafter, the judgment was delivered. Mr. Chakraborty, learned senior counsel has further submitted that the surreptitious entry over a land and continuous possession thereon cannot constitute adverse possession. It must be hostile and open to the true owner. In the present case, that fact could not be proved by the plaintiff review petitioner. As a result, the plaintiff-review petitioner and his predecessor have failed to prove that the said land was under their possession beyond the prescribed period i.e. 12 years in terms of the Article 65 of the Limitation Act.
09. Mr. S. M. Chakraborty, learned senior counsel has submitted that since all the issues and the aspects related to the possession were lucidly considered and the findings were returned on the basis of the reasons, there cannot be any interference and as there was no infirmity in the judgment which has been sought to be reviewed by the petitioners, the petition is bound to be dismissed with an exemplary cost for harassment being caused to the present respondents whom Mr. Chakraborty, learned senior counsel represents.
10. Having appreciated the submissions made by the learned counsel for the parties it appears to this court that this court made an apparent error by not passing the express order of additional evidence in IA No.498 of 2016 which is a petition for adduction in the second appellate stage. That Page 9 of 10 petition shall be treated as disposed of in terms of this order. Even if, the two khatians are assumed to have been admitted in the evidence, the judgment which has been sought to be reviewed by this petition would not have come under any impact. For example, in para-32 of the said judgment, it has been observed as under:
"Moreover, the original plaintiff has pleaded that since 1972 he was possessing the suit tank by rearing fish and growing vegetables etc., on its embankment. During that period, most of the time he was away from that place. Demonstration of hostile possession as claimed to have been shown on 05.02.1987 to RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 15 of 16 the attorney or to the sister of the defendant No. 1 does not appear probable, even he could not disclose the name of those two persons. Above all, the demonstration was not to the true owner. Even on the subsequent date i.e. 05.09.2004 when he was threatened of dispossession, has also not been proved following the standard as stated earlier."
11. The paragraphs as have been referred by Mr. Chakraborty, learned senior counsel have also shed lights that the power of attorney which was referred by the plaintiff had been executed on 20.08.2003 and the first appellate court has observed that the execution of the said power of attorney itself belies the story as projected by the plaintiff in the plaint. No ground has been taken in this regard in the first appeal. Only ground which has been pressed in the second appeal is on the basis of the observation made in para-8.8 of the first appellate judgment, which reads as follows:
"But in the present case, the respondent no.1 had proved only the khatian (Exhibit 1 series) prepared at the stage of draft publication of settlement operation and finally published khatian was withheld by him, hence no presumptive value of correctness can be attached with the related khatian no.5337 under Exhibit 1 series. Thus, Ld. Trial Court erred in relying the comment given in the said khatian showing forceful possession of respondent no.1 Page 10 of 10 therein and declaring the right, title and interest of the respondent no.1 by way of adverse possession basing thereupon. The respondent no.1 thus failed to prove his adverse possession in the suit land in the touch stone of the law discussed above."
12. The said observation was definitely made on the observation made in the paragraph 8.7 and there was no challenge regarding the other findings based on which the appeal was allowed on reversing the finding, returned by the trial court. This court is of the view that even if it is assumed that the entries made in the khatians under No.2601/1 and 2606/2 of Mouja Indranagar are read in the evidence or those two khatians being Khatian No.2601/1 and Khatian No.2602/2 of Mouja Indranagar are assumed to be in the record the basis which is a result of the cumulative reading, has provided the reasons for reversing the judgment of the trial court.
Moreover, by the judgment dated 30.05.2017, this court has clearly observed that unless openly the hostility is asserted by the possessor from a particular date, even after lapse of 12 years, that person can claim any right in the form of title on the basis of the said adverse possession. Therefore, this court is not inclined to entertain this review petition and accordingly the same is dismissed.
No costs.
JUDGE Moumita