Tripura High Court
Shri Dhirendra Ch. Banik vs Shri Birendra Ch. Banik on 25 February, 2022
Author: Arindam Lodh
Bench: Arindam Lodh, S.G.Chattopadhyay
Page - 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
RFA 02 OF 2019
1.Shri Dhirendra Ch. Banik,
S/o. Lt. Nawadwip Ch. Banik.
2.Shri Dhiman Ch. Banik,
S/o Shri Dhirendra Ch. Banik
Both are residents of Ramsundar Nagar,
West Joynagar, Banik Para, Post office-Agartala-799001,
Police Station-West Agartala,
Dist-West Tripura.
---- Appellants.
Versus
Shri Birendra Ch. Banik,
S/o Lt. Nawadwip Ch. Banik,
At present residing at-
C/o Shri A.B. Sarkar,
A.D. Nagar Road No.1,
Post office-Agartala-799003,
Police Station-A.D.Nagar,
Dist-West Tripura.
---Respondent.
RFA 03 OF 2019
1.Shri Dhirendra Ch. Banik, S/o. Lt. Nawadwip Ch. Banik, Resident of Ramsundar Nagar, West Joynagar, Banik Para, Post office-Agartala-799001, Police Station-West Agartala, Dist-West Tripura.
---- Appellant.
Versus Page - 2 of 6 Shri Birendra Ch. Banik, S/o Lt. Nawadwip Ch. Banik, At present residing at-
C/o Shri A.B. Sarkar, A.D. Nagar Road No.1, Post office-Agartala-799003, Police Station-A.D.Nagar, Dist-West Tripura.
---Respondent.
For Appellant(s) : Mr. P.Roy Barman, Sr. Advocate.
Mr. K. Nath, Advocate For Respondent(s) : Mr. A. Roy Barman, Advocate. Date of hearing & delivery of Judgment and order : 25.02.2022 Whether fit for reporting : NO HON'BLE MR JUSTICE ARINDAM LODH HON'BLE MR JUSTICE S.G.CHATTOPADHYAY Judgment & Order (Oral) (Arindam Lodh, J.) Heard Mr. P. Roy Barman, learned senior advocate who is appearing for the appellant along with Mr. K. Nath, learned advocate. Also heard Mr. A. Roy Barman, learned counsel appearing for the respondent.
2. Both the appeals are taken up together for disposal by a common judgment since common questions of facts and law are involved Page - 3 of 6 therein. Appellant's case in brief is that appellant Dhirendra Ch. Banik (defendant No.1 at the trial Court) and respondent, Birendra Ch. Banik (plaintiff in the trial Court) are full blooded brothers. Their father Nawadwip Chandra Banik died in the year 1969 leaving behind six sons and three daughters including the appellant. During his life time said Nawadwip Chandra Banik executed registered Will vide No.III-9 dated 18.09.1967 bequeathing his entire landed property measuring 10 Ganda 1 kara to his three sons namely, Birendra Chandra Banik (respondent herein who was plaintiff at the trial court), Hirendra Ch. Banik and Khirendra Ch. Banik. Said Nawadwip Chandra Banik did not give any share of his property to his other sons and daughters including the appellant. Thereafter, by dint of registered Will No.III-9, dated 18.09.1967, there was partition of this property amongst the three brothers who became the owners of the entire land of Nawadwip Ch. Banik. The plaintiff (respondent herein) became the owner of the suit property on the strength of the said partition. It was the case of the plaintiff that he permitted the defendant(appellant herein) over the suit property and accordingly, the defendant started to possess the suit property by way of making some constructions thereon. In the year 2015, the plaintiff for his own requirement requested the defendant to vacate the suit property. The defendant denied. That gave rise to the cause of action for filing the instant suit. On such refusal, the plaintiff had Page - 4 of 6 no other alternative but to file the instant suit claiming declaration of right, title and interest and recovery of khas possession over the suit land.
3. After receipt of the copy of the plaint, the defendant filed written statement. The defendant also filed a counter claim. In the written statement, the defendant has taken the plea of adverse possession. In counter claim he has claimed that he acquired the right, title and interest over the suit property by way of adverse possession. The defendant's case is that while he had been possessing the suit land, the plaintiff had requested him in the year 1980 to vacate the suit property when he virtually denied and refused to vacate the suit property. But, the plaintiff did not take any attempt to evict him from the suit property. As such, his claim is that his possession has become hostile against the plaintiff since 1980 and he has acquired right, title and interest over the suit property after expiry of 12 years.
4. Issues were framed by the learned trial court while deciding the plaintiff's suit as well as the counter claim of the defendant. Both the plaintiff and the defendant have adduced evidence. Thereafter in both the suits two separate judgments have been delivered by the learned trial Court. The suit of the plaintiff was decreed declaring the right, title and interest over the suit property in his favour directing the defendant to hand over the Page - 5 of 6 vacant possession of the suit property to the plaintiff. The counter claim has been dismissed by the learned trial court. In the judgment, learned trial court came to a conclusion that the defendant has miserably failed to put forth the required essentialities to prove the plea of adverse possession.
5. We have gone through the judgments rendered in both the suits. The Will has not been challenged, rather, it has been admitted by the defendant. The Will was executed in the year 1967. It was well within the knowledge of the defendant that their father executed a Will in favour of his three brothers but, he did not pray for cancellation of the Will and never raised any suspicion about the execution and registration of the said Will by their father late Nawadwip Ch. Banik. In this fact situation, plea of adverse possession taken by the defendant does not gain ground.
6. It is also observed that in due process the suit land was mutated in favour of the plaintiff and record-of-right in his name was created under Section 43 of the TLR and LR Act. Section 43 (3) raises presumption of the ownership as well as the possession of the 'raiyat'. The plaintiff's name is shown as 'raiyat' in the said khatian. The defendant never raised any objection against the preparation of record-of-right showing the plaintiff as 'raiyat' and possession also is being shown in favour of him. The defendant was never shown as forceful occupier over Page - 6 of 6 the suit land. His claim that he has been possessing the suit land for the last few decades forcefully is not supported by evidence. There is no evidence on record that he at any point of time had applied for correction of the right of 'raiyat'.
7. We find no ingredients of adverse possession in the instant case. Accordingly, both the appeals being devoid of merits stand dismissed.
Send back the LCR's.
JUDGE JUDGE