Tripura High Court
P.S. East Agartala vs Sri Gouranga Acharjee on 3 January, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RSA 11 of 2008
1. Sri Sankar Banik,
son of late Anil Chandra Banik,
resident of Village-Jogendranagar,
P.S. East Agartala, District : Tripura West
****as per Hon'ble Court's order dated
10.04.2017 passed in I.A. No. 491 of 2017
and I.A. No. 492 of 2017, the name of LRs
of the appellants No.2, 2(a) and 2(e) are
incorporated in the following manner:
2(a)(i). Smt. Shila Acharjee,
wife of late Sunil Acharjee
2(a)(ii). Sri Mrityunjoy Acharjee,
son of late Sunil Acharjee
2(a)(iii). Sri Dhananjoy Acharjee,
son of late Sunil Acharjee
2(a)(iv). Smt. Susmita Acharjee,
daughter of late Sunil Acharjee
2(a)(v). Smt. Bijayeta Acharjee(Minor),
daughter of late Sunil Acharjee
(The appellant No.2(a)(v) being minor is represented by
her mother and natural guardian, Smti. Shila Acharjee,
the appellant No.2(a)(i)
-all are residents of Village-Anandanagar, P.S. Sreenagar,
District : Tripura West
2(b). Sri Uttam Acharjee,
son of late Ganesh Acharjee
2(c). Sri Asit Acharjee,
son of late Ganesh Acharjee,
-all are residents of Anandanagar, P.S. Sreenagar,
District : Tripura West
2(d). Sri Nitya Gopal Acharjee,
son of late Ganesh Acharjee,
resident of Renters' Society,
P.S. East Agartala, District : Tripura West
Page 1 of 15
RSA 11 of 2008
2(e)(i). Smt. Shikha Acharjee,
wife of late Gautam Acharjee
2(e)(ii). Sri Rajat Acharjee,
son of late Gautam Acharjee
2(e)(iii). Smt. Jyotsna Acharjee,
daughter of late Gautam Acharjee,
-all are residents of Pratapgarh, Sadhutilla,
P.S. East Agartala, District : Tripura West
2(f). Smti. Mamata Acharjee,
wife of Sri Subodh Acharjee,
resident of Radhanagar, Agartala,
P.S. West Agartala, District : West Tripura
2(g). Smti. Bina Acharjee,
wife of Shri Siba Prasad Acharjee,
resident of Matabari, P.S. R.K. Pur,
Udaipur, District : Gomati Tripura
2(h). Smti. Anita Acharjee,
wife of Sri Sanjoy Acharjee,
resident of Kunjaban (near Governor House),
P.S. East Agartala, District : West Tripura
3. Smt. Laxmi Acharjee,
wife of late Amulya Acharjee,
daughter of late Rajendra Acharjee,
Village-Vidyasagar Road, Jogendranagar,
P.S. East Agartala, District : West Tripura
4. Sri Krishna Acharjee,
son of late Amulya Acharjee
5. Sri Gopal Acharjee,
son of late Amulya Acharjee
6. Sri Maran Acharjee,
son of late Amulya Acharjee
7. Smt. Santoshi Acharjee,
daughter of late Amulya Acharjee,
-all are residents of Village-Vidyasagar Road,
Jogendranagar, Agartala, District : West Tripura
8. Smt. Basanti Acharjee,
wife of Sri Premananda Acharjee,
resident of Jogendranagar,
near Mahashakti Club,
Page 2 of 15
RSA 11 of 2008
P.S. East Agartala,
District : West Tripura
9. Smt. Joyanti Acharjee,
wife of Sri Nikhil Acharjee,
daughter of late Amulya Acharjee,
Village- Noabadi, P.S. Ranirbazar,
District : West Tripura
[The appellants No.3 to 9 are represented
by the appellant No.1 being their
constituted attorney]
............Defendant-Appellants
- Vs -
Sri Gouranga Acharjee,
son of late Rajendra Acharjee,
resident of Village-Vidyasagar Road,
Jogendranagar, P.S. East Agartala,
District : West Tripura
............Plaintiff-Respondent
BEFORE THE HON‟BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. D.R. Choudhury, Advocate Mr. D. Deb, Advocate Mr. S. Sarkar, Advocate For the respondents : Mr. A. De, Advocate Date of hearing : 16.05.2017 Date of delivery of : 03.01.2018 Judgment and Order Whether fit for reporting : YES Judgment and Order This is an appeal from the judgment and decree dated 23.11.2007 delivered in Title Appeal No. 37 of 2005 by the Additional District Judge, Court No.4, West Tripura, Agartala. This Page 3 of 15 RSA 11 of 2008 is a reversal judgment. The judgment and decree dated 26.07.2005 as delivered in T.S. 04 of 2004 by the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala has been reversed by the first appellate court by its judgment dated 23.11.2007. By the judgment and decree dated 26.07.2005, the suit being T.S.04 of 2004 was dismissed and against the said judgment dated 26.07.2005 the plaintiff-respondent, Sri Gouranga Acharjee, hereinafter referred to as the plaintiff, preferred an appeal under Section 96 of the CPC being Title Appeal No.37 of 2005.
2. In pursuance to the first appellate judgment dated 23.11.2007, the suit filed by the plaintiff-respondent was decreed. The plaintiff filed the suit for declaration of title in respect of the land described in the Schedule-D to the plaint and perpetual injunction against the original defendant No.1 for restraining him from disturbing the possession of the plaintiff till he is evicted in due process of law. The plaintiff had prayed also for decree of declaration declaring that the plaintiff has right to continue in his possession in the Schedule-D land. It would be gainful to reproduce the Schedule-D as appended in the plaint.
Schedule „D‟ (Suit land recorded in the name of the Plaintiff) Under Mouja Jogendranagar, Khatian No. 7267, Hal Plot No. 4795, 4845 & 4798/13749 measuring 12.20 & 04 Sataks respectively classified as Bastu and at present i.e. in 2003 recorded as Hal Plot No. 7912, 7913, 7911 & 7910 measuring 10, 19 & 06 & 01 Sataks respectively in parcel No.7267 in the name of the Plaintiff, bounded by-
North-Road and thereafter Ramesh Karmakar & Others.
Page 4 of 15 RSA 11 of 2008 South - Gita Chatterjee & Others; East-Sarat Das;
West - Pitch Road.
Land measuring 36 Sataks, classified as Bastu.
3. The father of the plaintiff-respondent namely Rajendra Acharjee since deceased was the original owner and possessor of the land as described in Schedule-A of the plaint. Rajendra Acharjee lost his mother and wife during his lifetime. In his lifetime, he executed a gift deed in favour of his daughter namely Smti. Renubala Acharjee @ Renu Acharjee, the original defendant No.2 and executed a 'will' in favour of the plaintiff. Rajendra Acharjee is survived by the plaintiff, his brother, Amulya Acharjee and his sister Smti. Renu Acharjee. Smti. Renubala Acharjee @ Renu Acharjee filed a suit seeking partition of the Schedule- A land being T.S. (partition) No.40 of 1982 against her two brothers. The said suit was decreed ex parte. Renubala put the decree to execution vide Case No.EX(T)3/1995 and got her share from the un-partitioned land through the court. The appellant and the original defendants No.3 to 9, the successor of Amulya Acharjee also got their respective shares in the said property through the court.
4. There is no dispute that the plaintiff got his share by means of partition. The plaintiff has asserted that Amulya Acharjee during his life time sold out a part of the joint property by executing the sale deed No. 1-2857 dated 22.02.1975 and on that sale deed, the plaintiff had also put his signature as otherwise, the undivided property could not have been sold as the Page 5 of 15 RSA 11 of 2008 authority of all co-sharers are essential to transfer. The land that had been sold out by Amulya Acharjee, the predecessor of the original defendants No. 3 to 9 was sold with the consent of Renubala Acharjee, the defendant No.2. During his lifetime, Rajendra Acharjee gifted Schedule-D land measuring 5 gandas to Smt. Renubala Acharjee by the registered deed No. 1-5807 dated 02.04.1968. Renubala Acharjee sold the said land to Smt. Aruna Roy Chowdhury by the registered sale deed No. 1-1984 dated 26.03.1969. As such, the joint property after these two sale transactions had been reduced to 1.24 acres from 1.60 acres. According to the plaintiff, the entire land measuring 1.24 acres was being possessed by the plaintiffs and the defendants No. 3 to 9 since death of Rajendra Acharjee in the year 1969. Amulya Acharjee was the eldest son of Rajendra Acharjee and he died in the year 1995. Renubala is elder to the plaintiff and she was residing in Bangladesh after her marriage in the year 1959. When they came to India after the communal riot in 1964 she received the gift from the father of the plaintiff. Renubala Acharjee asserted her right and demanded partition of the joint property inherited by her as the successor of Rajendra Acharjee. On 28.12.1976 one partition deed under No.1-10212 dated 28.12.1976 was executed between Gouranga Acharjee and Amulya Acharjee and according to the plaintiff, the said deed was executed in terms of the resolution taken at the instance of the family well wishers. The plaintiff has admitted that Renubala Acharjee, the original defendant No.2 filed one partition suit in the civil court of the competent jurisdiction being T.S.(partition) 40 of 1982, which was Page 6 of 15 RSA 11 of 2008 disposed by an ex parte decree passed on 30.04.1984. Thereafter, it has been pleaded in the plaint as under:
"To set aside the decree Ex parte a petition was filed on 30.5.83 and Regd. A civil Misc. No. 3/84 in T.S.(P)40/82 which was ultimately allowed on 20.8.85 on condition to pay Rs.100/- as cost to the O.P. i.e. Renu Acharjee. But Amulya, the sole Tadbir Karak of the said suit was negligent and callous that though he took Rs.100/- from the Plaintiff, he did not deposit the same and ultimately on 4.4.86 the order for restoration dt. 24.11.85 passed in Misc. 3/84 stood rejected."
5. Even thereafter, an attempt was made to get the order dated 04.04.1986 reviewed by filing an application under Section 114 of the CPC being Misc. 4/86 but the said application was also rejected by the order dated 30.06.1986. The said order dated 30.06.1986, according to the plaintiff, was challenged by filing a revisional petition in the Gauhati High Court which had territorial jurisdiction at that time being Civil Revision petition No. 19/86. As the said petition was filed after a long delay of 275 days, the Gauhati High Court did not condone the delay and in the course, the ex parte decree 30.04.1984 reached its finality. All these facts are admitted by the petitioner. Even the petitioner has admitted that at the instance of Renubala Acharjee @ Renu Acharjee the said decree was put on execution for dividing the shares amongst the co-sharers in terms of the final decree by metes and bounds. The said execution case was in one point of time dismissed for non-prosecution. However, at the instance of Renubala Acharjee, the said dismissal order of the execution case was set aside by the order dated 19.12.1997 delivered in Misc. 24 of 1997. After restoration, the plaintiff did not receive any notice. According to the plaintiff, only 13 gandas and 2 karas of land was Page 7 of 15 RSA 11 of 2008 recorded in the Khatian No. 2238 under Dags No. 4795, 4798, 4800, 4801, 4844 and 4845. The plaintiff has further pleaded that the Bailiff severed the plots into three shares and handed over the possession to the co-sharers. But that was a constructive possession. The Bailiff could not deliver possession as per the Map of the Survey Commissioner. The plaintiff was in possession of .36 acre of land and his possession according to him was never disturbed. For the said reason, the plaintiff is still in possession over the plots No. 4795, 4845, 4798/13749 of Khatian No. 7265.
6. Further, as asserted by the plaintiff, the defendant No.1 is a stranger so far the suit land is concerned. But he had tried to dispossess the plaintiff from a portion of land under his possession but the bid to dispossess the plaintiff on 17.12.2003 was foiled by him. However, he has instituted the present suit for a declaration of title in respect of the plots No. 4795, 4845, 4798/13749 comprised in Khatian No. 7267 as described elaborately in Schedule-D in the plaint. Some amendments were carried out in the plaint but those did not have any impact on the fundamental structure of the plaint. It appears that the basis of the claim of the plaintiff is that he continued with the possession of .36 acre of land despite the execution through the court. All the defendants filed a joint written statement. The defendants No. 3 to 9 are represented by the defendant No. 1. The defendants also did not contest the statement of facts as narrated in respect of the partition suit instituted by Renubala Acharjee. Page 8 of 15 RSA 11 of 2008
7. The defendants have clearly stated that when there is a decree of the competent civil court in respect of the title, the record of right (khatian) cannot play any role. The defendants in their written statement have categorically stated that the plaintiff and Amulya Acharjee by excluding the defendant No.2 could not have any right of exclusive nature in respect of title to transfer. If the transfer is covered under Section 44 of the Transfer of Property Act that shall be adjusted from their share. What has been pleaded by the plaintiff cannot be accepted inasmuch as in terms of the final decree passed in the said partition suit, the plaintiff can only pray for decree in respect of 13 gandas 2 karas of land i.e. .27 acres as per the Map, which is the part of the partition decree. The defendant No.1 is not a stranger but the authorized attorney for the defendants No.3 to 9. On the basis of that authority, he had right to look after and represent those defendants. It has been categorically denied by the defendants that there was any bid to dispossess the plaintiff from the suit land. The defendants have categorically stated that the plaintiff does not have any title over the suit land and his claim for possession cannot be treated as his possession. A part of the land is in the physical possession of the defendant No.2. The plaintiff cannot possess when the possession was handed over to the defendants in the course of executing the decree of partition. By way of amendment when the plaintiff has prayed for recovery of possession, that prayer was squarely contested by the defendants and stated that a court cannot support the mischievous act of the plaintiff to frustrate the very act of the court. Page 9 of 15 RSA 11 of 2008
8. By the judgment dated 26.07.2005, the suit was determined on the issues framed for adjudication. The main issues are as under :
"(ii) Is the plaintiff rightful owner and possessor of the land appertaining to Khatian No.7267 of Mouja-
Jogendranagar as mentioned in „D‟ schedule?
(iii) Is the land appertaining to Khatian No. 7267 is outside the decreetal land of Title Suit No. 40/82 and the connected execution case No. Ex(T)3/95?
(iv) Was the plaintiff ever in possession of the suit land mentioned in „E‟ schedule of the plaint ? If so, when he was dispossessed?"
9. The plaintiff adduced three witnesses and introduced the documentary evidence being Khatian No.2438(Exbt.1), Khatian No.7267(Exbt.2), Certified True copy of Map (Exbt.3), Original partition deed dated 28.12.1976 (Exbt.4), Execution petition in Execution (T)3/05(Exbt.5) and True copy of the solenama dated 7.2.84(Exbt.6). The defendants No.1 and 2 filed their examination in chief by way of affidavit but they did not file any document. The trial court has decided the issues as under :
1) There is no dispute that the suit land is part of the inherited land through Rajendra Acharjee and as such all the legal heirs of Rajendra Acharjee are entitled to equal share in possession in the said land.
2) As the plaintiff has not categorically stated which land he got by virtue of the partition decree therefore there is no question of plaintiffs being dispossessed by the other co-sharers.
10. It has been stated that after the decree was passed in the partition suit, the said decree reached its finality on exhausting all remedies. The other proceeding deeds cannot have any force in respect of title and possession. For that reason, the trial court has observed as under :
"Because of the decision of the issue No. iii, the prayer of the plaintiff to declare that the land of Khatian No. Page 10 of 15 RSA 11 of 2008 7267 is outside the decree in the partition sit cannot be allowed. Next prayer of the plaintiff is to declare that he has right to continue in possession of the suit land mentioned in the „E‟ schedule against the defendants No.1 cannot be allowed, he being the constituted attorney of the defendants No. 3 to 9. For the same reason, no perpetual injunction can be granted against the defendant No.1. For what is decided in Issue No.iv, plaintiff cannot be given the decree of recovery of khash possession of the land narrated in „E‟ schedule."
11. The said judgment and decree dated 26.07.2005 was challenged by the plaintiff by an appeal under Section 96 of the CPC being T.A. No. 37 of 2005. By the reversal judgment and decree dated 23.11.2007 the said appeal was allowed. To reverse the finding of the trial court, the following observations have been made by the first appellate court:
"On hearing the Ld. Counsel for both the sides it appears to me that the respondent No.2 put her decree to execution (No.Ex(T)3/95) and got her share over the suit property through Court. The appellant and the predecessor in interest of the respondent Nos. 3 to 9 also got their respective portion of land through Court. The appellant got the „D‟ schedule land of the plaint of TS 4/04.
On careful scrutiny of the case record it is revealed that the respondent No. 2 did not include the land of her father in her TS(P)40/82 which he had given the respondent No.2 on the strength of gift deed and the land which he had given to his son (appellant) on the strength of his „will‟.
Neither the predecessor in interest of the respondent Nos. 3 to 9 nor the present respondent Nos. 3 to 9 raised any objection against such execution of land by the respondent No. 2 in her T.S. (P) 40/82.
So, the respondents had now scope to agitate against the land which the appellant had got on the strength of „will‟ of his deceased father.
It also appears from the case record that legal heirs of Rajendra Acharjee got their respective shares and portion of land through Court i.e. through the execution case bearing No. 3/95.
It transpires from the documents of the parties to the suit that the appellant got the „D‟ schedule land exclusively as his share. Accordingly, he got the finally published records of rights for the same.
On careful scrutiny of the case record it is revealed that the respondent No.1 on the strength of power of attorney of the other respondents, dispossessed the Page 11 of 15 RSA 11 of 2008 appellant from the „E‟ schedule land of the plaint forcibly during the pendenc of his suit.
So, I am of the view that the Ld. Court below committed a serious error by way of ignoring the legitimate claim of the appellant. Being owner and possessor, the appellant was entitled to have the recovery of Khash possession of his „E‟ schedule land of the plaint from the respondents.
I am also of the view that the appeal of the appellant has merit and it deserves the due consideration of the Appellate Court.
The judgment and decree of the Ld. Court below dated 26.7.05 is liable to be set aside."
When the original defendants had challenged the said judgment dated 23.11.2007 by filing this appeal, this court had framed the following substantial questions of law by the order dated 23.06.2008 :
"(i) Whether the judgment and decree of the learned appellant court was barred by the principle of estoppel as well as by the principle of res judicata as the same land between the same parties was once decided by a civil court ?
(ii) Whether the learned appellate court passed the judgment and decree by misappreciating and misreading the documentary evidence on record ?"
Liberty was given to the appellant to raise any other substantial questions of law during the course of hearing.
12. Mr. D.R. Choudhury, learned counsel appearing for the appellants did not agitate for framing any additional substantial questions of law. Mr. Choudhury, learned counsel appearing for the appellants has submitted that the suit is hit by principle of res judicata and the trial court had determined the suit correctly. The judgment of the first appellate court is entirely loaded with incorrect appreciation of law and evidence. Moreover, the first appellate has failed to read the admission of the plaintiff regarding the final decree and its execution. Mr. Choudhury, learned counsel Page 12 of 15 RSA 11 of 2008 had sarcastically stated that Rajendra Acharjee gifted the property to the original defendant No. 2 by a registered deed of gift during his lifetime and accordingly, the same cannot be part of the inherited joint property. The ex parte preliminary decree was passed in the said partition suit by declaring the shares over the property left by Rajendra Acharjee, excluding the property which is demised in the gift deed, executed in favour of the original defendant No.2. The analysis therefore in this regard is entirely perverse. And hence, the decree of declaration and consequential relief of injunction are absolutely untenable and liable to be set aside. Mr. Choudhury, learned counsel has referred two decisions of Madras High Court.
13. In C.R. Ramaswami Ayyangar versus C.S. Rangachariar and Others reported in AIR (1940) Madras 113, the full bench of Madras High Court per majority through Chief Justice Leach has observed as under :
"In my opinion, this sub-section cannot be deemed to apply to a partition suit where the plaintiff is in joint possession. A joint owner who is in possession does not need to sue for possession. He has possession and the fact that his possession is shared by others does not affect the position."
14. Another decision as relied by Mr. Choudhury, learned counsel in Kuppuswami Goundan versus Mari Goundan alias Mariappa Goundan and Others reported in AIR 1943 Madras 427, according to the court, does not have any relevance in the present context and hence, there is no necessity to make elaborate reference in order to hold that the said decision is inapplicable.
Page 13 of 15 RSA 11 of 2008
15. Mr. A. De, learned counsel appearing for the sole- respondent, the plaintiff in the suit, has in order to defend the judgment of the first appellate court has submitted that since in the partition suit being T.S.(Partition) 40/82, filed by the original defendant No.2, the partition deed dated 28.12.1976 between the plaintiff and his brother Amulya Acharjee was not challenged the said deed stands to denote that the title as reflected in the said deed stands good. According to him, unless the said registered partition deed is cancelled by the process of the court that shall hold the force of title. He has further submitted that the partition was complete by the said deed dated 28.12.1976 (Exbt.4). Therefore, there is no infirmity in the judgment of the first appellate court.
16. Having appreciated the submissions made by the learned counsel for the parties, this court finds that the pertinent question is one and if is answered, would address the substantial questions of law whether the partition decree can be superseded by the partition deed which was executed admittedly prior to institution of the partition suit being T.S.(P) 40 of 1982. The answer must be in the negative. If the other co-sharers (the plaintiff and Amulya Acharjee) had any intention to assert their right through the said partition deed, they should have contested the said partition suit but they did not, for obvious reason as the plaintiff has himself admitted in the plaint that the original defendant No.2 who is one of the legal heirs of Rajendra Acharjee was not party to that partition deed. As such, the partition deed could not have established any right in favour of the plaintiff and Page 14 of 15 RSA 11 of 2008 Amulya Acharjee. More surprising part is that the successors of Amulya Acharjee have not supported the plaintiff's case in this regard. A registered deed cannot supersede a decree of the court. The decree of the court is a superior instrument. Therefore, the finding as returned by the first appellate court is grossly illegal as that amounts to interfering with the decree between the same parties and which has reached its finality. Moreover, when the Bailiff of the court on the basis of the map, part of the final decree, handed over the possession to the co-sharer, the claim of the plaintiff on possession cannot get approval from the civil court. As such, the judgment and decree dated 23.11.2007 as challenged in this appeal are set aside and quashed. The judgment and decree passed by the trial court dated 26.07.2005 is restored, meaning the suit stands dismissed.
In the result, this appeal is allowed.
Draw the decree accordingly.
Transmit the records thereafter.
JUDGE Sabyasachi. B Page 15 of 15 RSA 11 of 2008