Tripura High Court
Sri Nani Gopal Ghosh vs Smt. Sandhya Sinha on 11 February, 2022
HIGH COURT OF TRIPURA
AGARTALA
RSA 12 of 2017
Sri Nani Gopal Ghosh
S/O - Lt. Akhil Chandra Ghosh,
Resident of Panichowkibazar,
P.O. and P.S. - Kailashahar,
-----Appellant(s)
Versus
1. Smt. Sandhya Sinha
D/O - Lt. Soangiri Rajkumar Alias Rajkumar Sinha,
Resident of Kumarghat, P.O. and P.S. - Kumarghat,
near S.E. Office, Dist. - Unakoti Tripura.
2. Sri Basu Ranjan Deb
S/O - Lt. Rasamoy Deb,
Resident of Kumarghat near S.E. Office,
P.O and P.S. - Kumarghat, Dist. - Unakoti Tripura.
3. Sri Biplab Deb
S/O - Lt. Rasamoy Deb,
Resident of Kumarghat near S.E. Office,
P.O. and P.S. - Kumarghat, Dist. - Unakoti Tripura.
4. Sri Debashish Deb
S/O - Rasamoy Deb, Resident of Kumarghat Near S.E. Office, P.O and
P.S. - Kumarghat, Dist. - Unakoti Tripura.
5. Smt. Santa Roy (Saha)
W/O - Dipesh Kumar Saha,
Resident of Kumarghat Near S.E. Office,
P.O. and P.S. - Kumarghat, Dist. - Unakoti Tripura.
-----Respondent(s)
For Appellant(s) : Mr. P. Roy Barman, Sr. Adv.
Mr. S. Bhattacharjee, Adv.
For Respondent(s) : Mr. H. Deb, Adv.
Date of hearing : 03.02.2022.
Date of pronouncement : 11.02.2022
Whether fit for reporting : No
Page 2 of 14
HON‟BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
This is an appeal under Section 100 of the CPC against the judgment and decree dated 21.07.2016 passed by the Additional District Judge, Unakoti, Kailashahar, in the Title Appeal No.10 of 2014. [2] At the outset, the controversy that led to filing of the suit may briefly be introduced. The appellant-plaintiff has instituted the suit Title Suit No. 41 of 2013 against the respondents for declaration of his right, title and interest over the suit immovable property and recovery of possession thereof from the defendants.
[3] The plaintiff-appellant case in short compass is that the suit land measuring 1.57 acres recorded under Khatian No.222 of Mouja Kumargath and other land originally owned by the father namely Akhil Chandra Ghosh since deceased. The said Akhil Chandra Ghosh gave jot settlement of the suit land to the plaintiff by executing a lease deed bearing no. 2861 dated 1962 accordingly, the record of right vide Khatian No. 222 of the suit land was prepared in the name of the plaintiff. The record of rights was finally published during revision survey operation during the year 1987. Thus, the plaintiff had been possessed the suit land as "RAYAT" through his men by paying revenue to the Government since the date of settlement.
[4] In the plaint filed by the plaintiff before the trial court it is stated that the defendants have/had not right, title, interest or possession over any portion of the suit land and the permission granted by the plaintiff in favour of the defendant no.1 was also revoked Page 3 of 14 demanding possession while the plaintiff came to know about the said fraudulent collusive and baseless Khatian No.1147 of the defendant No. 1 and other baseless Khatian No. 2113 and 2229 prepared in the name of the defendant Nos. 2 to 5 and as such, all the said Khatians are wrong, illegal and fraudulent and baseless and not binding on the plaintiff and the documents of transfer of land, if any, executed by the defendant No1 in favour of the defendant Nos. 2 to 5 are fraudulent and void and not binding on the plaintiff and the defendant No.1 had no right to put the defendant No.2 into possession of the suit land. [5] It is further stated in the plaint that while the plaintiff raised objection knowing the said fraudulent and baseless Khatians and illegal acts of the defendant No.1 and requested the defendants to vacate the suit land, the defendant No.1 came forward with a proposal of compromise and admitting the ownership and possession of the plaintiff in the suit land on 11.11.2011 she entered into a written agreement with the plaintiff to purchase the entire suit land by means of a deed at a consideration of Rs.9,00,000/- and paid some amount as earnest money but, the said agreement was cancelled and the earnest money paid by the defendant No.1 was also forfeited after expiry of the stipulated period and in terms of the said agreement and accordingly, the plaintiff issued notice dated 21.04.2012 through his lawyer to the defendant NO.1 under registered post with A/D requesting to vacate the suit land but, the defendant No.1 receiving the said notice did not give any reply and comply with the request made by the plaintiff. Page 4 of 14 [6] In the written statement filed by the defendants (the respondents herein) it has been stated that No lawyer's notice dated 21.04.2012 was received by the defendant requiring to vacate the suit land was falsely alleged. It is mentionable here that, as the value of the said land has recently risen up due to formation of new sub-division, the plaintiff out of his greed for money as ex-zamindar came to defendant No.1 a woman causing threat for filing false suit and harassment and the defendant No. 1 who is a village rustic lady out of fear came to the plaintiff to surrender to him as desired by him. Consequent upon such happenings the defendant No. was compelled then to settle the matter with the plaintiff on condition to pay Rs. 9 lakhs to get rid of threat of false case and other harassments. The defendant No1 also paid Rs. 3 lakhs initially to the plaintiff and later on Rs.80,000 only to him and rest amount would be paid subsequently. But the defendant within the time as desired by the plaintiff, tendered him with the rest amount in presence of her witnesses for settlement of his claim by executing a deed of settlement but he flatly denied to act as per his commitment and ultimately demanded for surrendering a portion of the land in his favour. It is emphatically denied that, on 11.11.11 the answering defendant No.1 entered into a written agreement to purchase to the entire suit land by means of a deed at a consideration of Rs.9 lakhs but there was no talk of such purchase by defendant as falsely alleged. However a talk of settlement was held for payment of Rs 9 lakhs the defendant No. 1 was till ready and willing to pay the rest amount as desired by plaintiff but as the plaintiff failed to perform his part to Page 5 of 14 execute a deed of settlement/compromise in favour of defendant No.1 by refusing to receive the rest amount as desired by the plaintiff. The defendant No. 1 reserved her right to file appropriate suit against the plaintiff for recovery of Rs.3 lakhs 80 thousand against the plaintiff with appropriate compensation in due course of time. The plaintiff has already lost his title tin respect of suit property by acquisition of valid right acquired by defendant No.1 and such right cannot be defeated without any proper and valid document. As the plaintiff is not fair in his deal and has come before this court without clean hands seeking for declaration of his right against the defendant No.1 who had already acquired adverse right in respect of suit land beyond the statutory period of limitation without any interruption from any quarter for which he is not entitled to get any relief before the court of equity and as such the suit deserves to be dismissed with cost to the defendant. [7] The plaintiff in examination-in-chief has referred to the lease deed No.1-2861 (Exbt-1 series) of the paper book. The relevant portion of the said lease deed reads as follows:
The followings are the conditions between the parties which was made voluntarily between the Akhil Chandra Ghosh (1st Party, vendor) and Sri Nani Gopal Ghosh (the 2nd party, vendee)
1. As I the 1st party have been remaining as the oner of the ladn mentioned in the below schedule with Jote title, I have agreed to delvier Jote of (the land) in favour of you the 2nd party, accordingly I the 2nd Party agreed to accept the same.
2. As the annual revenue of 9 kani land for both the parties is ascertained at the rate of Rs.2.00 per kani thus totaling Rs.18.00 (Rupees Eighteen) of the below mentioned related Khas Jote no.45 present Jote no.50 having a measurement of 5X6 Nol (unit of measurement) Page 6 of 14 of 14 cutis Nol of 18 inches/cubit and cess having an amount of Rs.19 at the rate Re.1 and 2 annas at the rate of 1(one) anna of Re 1 of the annual rental, I the 2 nd party shall remain bound to pay you the annual rental and cess to you, the first party at the said rate.
3. I the 2nd party would realize and shall remain liable to realize the said imposed revenue and cess you the 1 st party proportionately in two installments on Ashadh and Agrahayan (Bengali months) of every T.E or else I shall party or remain liable to pay the interest or amount of compensation at the rate of .03 paisa every month.
4. I the 2nd party shall keep the land obtained by way of proper settlement described in the schedule in its original condition alongwith the boundary and shall not perform any sort of harmful act related to the land. If any such act is conducted, I shall be punished legally and shall remain liable and bound to pay the compensation.
5. I the 2nd party with the permission of you the 1st party can make gift, sale and transfer of the land etc. and shall not conduct any sort of dissatisfactory act towards the 1st party, the land owner.
6. If the 2nd party fails to realize the revenue and cess as per the said installments to you the 1 st party, then in default of every installments of the 2nd party you can file suit before the court against me the 2 nd party claiming interest at the said rate and shall get the suit decreed alongwith realizing the entire court expenses and compensation and can also realize the entire court expenses and compensation and can also realize the land mentioned in the said schedule or other properties of the 2nd party by way of auction, sale, purchase. At this neither I the 2nd party nor any of my successors shall raise any objection. If any such act is done, it shall be rejected by all courts of law. This deed with remain in custody of the 1st party. At this I the 2nd party shall not raise any objection.
7. All the successors of I the 2nd party shall remain bound to withdraw their names as per law before you i.e., in the Seresta (Office/chamber) of the 1st party otherwise they cannot raise any sort of claim of title over this land."
[8] The plaintiff-appellant herein filed the suit in the trial court for the below mentioned schedule land 1st Schedule Boundary Land purchased by the 1st party Land posted in previous Khas Jote No. 45 present Khas jote NO.50 situated within Mouja-Kumarghat, P.S- Fatikroy, Pg-Birchandra Nagar.
Butted and bounded.
Page 7 of 14On the North by : Jote land of Guna Mani das On the east by: Jote land of Anada Chakraborty and jote land of Sndhani Khatrani On the west by: Jote land of Sonai Singha, Raj Kishore Singh a, Jamini Das, Shena Chetia Singha, Chandra Ram Das, Kul Chandra Das, Petel Asam and Basanta Assam On the south by : Ditch Within this boundary lies a total area of land measuring 9(nine) kani 6 (six) ganda 3 (three) kara 2(two) kranta 15 (fifteen) dhur purchased by 1st party appertaining to Dag nos. 1226, 1233, 1638, 1640, as per survey settlement operation of 1338 T.E posted in Touji no. 98.
2nd Schedule Boundary Land obtained by 2nd party by way of proper settlement Butted and bounded:
On the north by: Own Jote land of 1st party, Forcible possessors- Basanta Assam and Chandra Kanti Singha On the east by: Premada Chakraborty in place of Annada Chakraborty and Canal.
On the south by : dry stremlet, road and Chandra Kumar Das towards its South.
On the west: Jote land of 1st party. Forcible possessor- Sona Singha, Umesh Namasudra, Raj Ram Das, Basanta Ram Das, Rajani Ram Das and Adhir Ram Das.
Withiin this lies a total area of „Chara‟ class of land measuring 9 Kani.
[9] On the basis of the rival pleadings, the Civil Judge (Sr. Div), Kailashahar, North Tripura District Judiciary in TS No 41 of 2013 dated 12.06.2014 framed the following issues:
1. Whether the suit of the plaintiff is not maintainable in its present form and law?
2. Whether the defendants have no right, title and interest over the suit land but plaintiff has his right, title and interest over the suit land?
3. Whether the story of permissive possession of the defendant No.1 and her deceased father were true?
4. Whether the story of dispossession of the plaintiff from the suit by the defendants is/was true?Page 8 of 14
5. Whether thedefendants No.1 on 11.11.2011 entered into a written agreement with the plaintiff to purchase the entire suit land on execution of sale deed at consideration of rupees 9,00,000 (nine laces)?
6. Whether the plaintiff is entitled to get decree as prayed for?
7. Any other relief/relieve.
[10] The trial judge while deciding the issue No. 2 & 3 has observed that plaintiff had originally his ownership over the suit land in the strength of Deed Ext.1 series. However, while we read out the contents of the deed Ext.1 series in its entirety, it appears that the ownership of the plaintiff over the suit land is limited ownership inasmuch as it is a lease deed having embodied numerical conditions imposed upon the plaintiff including that the plaintiff shall have no right to sell the land embodied in the deed without prior permission of the executant 1st party.
[11] The trial court has further observed that it can be viewed that the plaintiff has his limited interest only in the suit property but has no absolute right and title thereof. The defendant No.1 has also no adversary right over the suit land. The defendant No. 1 and before his turn, his father were only in permissive possession of the suit land. Resultantly, the issue No.2 is decided partly in favour of the plaintiff and the issue No.3 is decided fully in favour of the plaintiff. [12] The trial judge after having examined all the records so placed in the plaint and also after examining the written statement filed by the defendant-appellant, depositions of PWs and DWs in support of the claim, has observed as herein under:
Page 9 of 14
60. In view of the above detailed discussion and findings of this court under the above issues, the suit of the plaintiff is hereby decreed party. The plaintiff‟s limited inters to the extent of the trms and conditions embodied in the lease deed Ext.1 series is hereby declared on contest against the defendant No.1 and uncontested against defendant Nos.2 to 5, but considering the peculiarity of the facts and circumstances of the suit, no costs is imposed.
[13] Being aggrieved and dissatisfied with the judgment and decree passed in the original suit, both the parties preferred separate appeal against each other being case No. Title Appeal No.10 of 2014 and Title Appeal No. 13 of 2014 in the court of the Additional District Judge, Unakoti Judicial District, Kailashahar. The lower appellate court on the basis of the divergent argument and the matter available on record, the following common points are taken up for discussion in both TA 10 of 2014 and TA 13 of 2014
1. Whether the plaintiff or defendants have right, title and interest over the suit land?
2. Whether the defendants No.1 and her deceased father were the permissive possessor over the suit land?
3. Whether the plaintiff was dispossessed from the suit land by the defendants?
4. Whether the plaintiff is entitled to get decree as prayed for? [14] While deciding the Point No.3 the lower appellate court has observed that the plaintiff also stated in his evidence that on 11.11.2011 the defendant NO. 1 entered into an agreement to purchase the suit land at Rs.9 lac and some money was also paid in lieu of the said agreement, but the said agreement was cancelled as the defendant No.1 failed to submit the rest of the amount as per terms and conditions of the agreement. The plaintiff on 21.04.2012 served a notice upon the defendant to vacate the suit land but she did not vacate. On perusal of Ext.5 series which is the notice served upon the Page 10 of 14 defendant No.1 shows that the said notice was issued in relation to Ext.6 only and not in relation to this present case. The plaintiff in hs evidence himself admitted that after death of the father of defendant No.1 she herself was in possession of the suit land. Remaining over the suit land even after getting the notice i.e. Ext.5 series, does not show that defendant No. 1 dispossessed the plaintiff from the suit land on and from 21.04.2012. Thus, the point no.3 is decided against the plaintiff side.
[15] By the judgment and decree dated 21.07.2016 passed by the Additional District Judge, Unakoti, Kailashahar, in the Title Appeal No.10 of 2014, the said court has observed as follows:
"Hence in the result, the present appeals TA 10 of 2014 and TA 13 of 2014 filed by the appellant-plaintiff and appellant-defendant against the respondent-defendants and respondent-plaintiff, respondent-pro-defendants being devoid of merit is accordingly dismissed on contest with costs."
[16] Being aggrieved by the said judgment and decree of the first appellate court dated 21.07.2016, the appellant herein has preferred this instant appeal under Section 100 of the CPC. At the time of admitting this appeal, the following substantial question of law was framed by this court by the order dated 14.03.2018.
"Whether the title of property can be accrued from the lease deed, even if the name of the lessee is recorded as the rayat in the record of right?"Page 11 of 14
[17] Counsel appearing for the respondents has given a catena of judgments supporting his contention:
(i) Vijay Kumar Sharma vs. Devehs Behari Saxena reported in AIR 2008 Allahabad 66, where the court has held as follows:
14. Drawing our attention towards V.B. Dharmyat v. Shree Jagadguru Tontadrya and Ors. (1999) 6 Supreme Court Cases 15 and Maneklal Mansukhdhai v. Hormusji Jamshedji Ginwala and sons AIR (37) 1950 Supreme Court 1, it was submitted by learned Counsel for the plaintiff-respondent that in instant case, the defendant was required to execute lease deed in pursuance of the agreement dated 22.01.1993 and since the agreement to execute the lease deed does not require registration under section 17 of the Registration Act or any other law for the time being in force, hence the agreement in question is legally enforceable and the decree passed by the court below for its specific performance does not suffer from any illegality and interference by this Court in the said decree is not warranted. We are not at all impressed with this argument. The agreement to sell dated 22.01.1993 (paper No. 18A) shows that the seller Vijay Kumar Sharma (defendant-appellant) was required to execute transfer deed in favour of the purchaser Devesh Behari Saxena (Plaintiff-respondent) after receiving balance sale consideration of Rs. 13,21,000/-. Through this document, the plaintiff-respondent had purchased plot No. 133, situate in Block-A, Sector-15, NOIDA for Rs. 20,21,000/- and Rs. 7,00,000/- were paid as earnest money on 22.01.1993. According to clause (7) of this agreement, transfer deed was to be executed in favour of the purchaser by 02.04.1993. There is nothing in this agreement to show that the plot in question was taken on lease by the plaintiff. The transfer of the plot in question for consideration of Rs. 20,21,000/- was out right sale and it was not a lease. "The Sale", according to section 54 of the Transfer of Property Act, is a transfer of ownership in exchange for a price paid or promised or part paid and part-promised. According to section 105 of this Act, "
lease" of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. There is vast difference in sale and lease. The ownership of the property is transferred in the sale, whereas the right to enjoy such property is only transferred in a lease. There is no transfer of ownership of the property in lease. In instant case, the parties have described themselves as seller and purchaser in the agreement to sell dated 22.01.1993 (paper No. 18A) and ownership of plot No. 133 was transferred by the defendant for a sale Page 12 of 14 consideration of Rs. 20,21,000/-. It is not the case of plaintiff in plaint that he had taken plot No. 133 on lease. There is specific averment in the plaint that the defendant had agreed to sell his plot No. 133 for consideration of Rs. 20,21,000/- and an agreement to sell for that purpose was executed between the parties on 22.01.1993. Therefore, having regard to the recitals made in the agreement to sell dated 22.01.1993 (paper No. 18A) and averments made in the plaint, there is no scope to contend that the disputed plot was taken on lease by the plaintiff. As such, both the rulings cited by the learned Counsel for the plaintiff-respondent are not applicable in this case and on the basis of the observations made in these rulings, the impugned decree of specific performance of the agreement to sell dated 22.01.1993 can not be sustained. Hence the point No. 2 also is decided accordingly in favour of the appellant-defendant and against respondent-plaintiff.
(ii) Union of India and others vs. Vasavi Co Housing Society Ltd. and others reported in AIR 2014 SC 937, where the court has held as follows:
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff‟s own title, plaintiff must be non-suited.
17. 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 held that "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 "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 "the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."
20. 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 Page 13 of 14 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.
[18] Mr. P Roy Barman, senior counsel for the appellant after reserving the RSA for judgment has made submission before this court that if the court feels like it may frame more substantial question of laws and pass orders. Since the arguments have been complete and the matter is reserved for judgment, framing substantial question of law at this juncture does not arise. Once the substantial question of law is framed, the respective counsel needs to make their submission on the same. If this request is entertained again it amounts to reopening of the RSA. Hence this request is rejected.
[19] It appears to this court that no argument has been made on the substantial question of law. It is apparent that originally there was an agreement after execution of the lease deed in favour of the son. Thereafter, both the parties, the plaintiff and the defendants in the Title Suit No. 41 of 2013 preferred appeal as appellants in the court Additional District Judge, Unakoti Judical District, Kailashahar, in T.A. 10 of 2014. The respondents herein who were the defendants in the title suit stated before the lower appellate court that the lease does not create title rather it gives only right to use or enjoy the leased out property. It was further stated that the appellant herein was not under rayat was the appellant neither cultivates or hold the suit land. So, in a Page 14 of 14 nutshell it is the case of the respondents here that the appellant is not entitled to the suit his claiming for and has no right, title and interest over the suit in question. The suit was accordingly decreed partly in favour of the appellant and a little portion of the suit was given to him by way of a lease deed.
[20] In view of the above, the present RSA is liable to be dismissed on the ground that exhaustive argument on the substantial question of law are not advanced and this court is also of the view that respondents have failed to prove framing of issue regarding execution of adverse right in favour of the appellant by the trial court.
Hence, this court confirms the order dated 12.06.2014 of the trial court by rejecting the order dated 21.07.2016 passed by the lower appellate court.
With the above observation the RSA stands dismissed.
JUDGE Dipak