Tripura High Court
Shri Hari Sankar Das vs Shri Ranjit Kumar Karmakar @ Dulal ... on 14 August, 2020
Equivalent citations: AIRONLINE 2020 TRI 325
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA No. 42 of 2007
Shri Hari Sankar Das
son of Shri Prafulla Kumar Das, resident
of Village- Sekerkote, P.O. Bikramnagar,
P.S. Amtali, District - West Tripura.
......... Appellant
-Versus-
Shri Ranjit Kumar Karmakar @ Dulal Karmakar,
son of late Manindra Chandra Karmakar,
resident of Sekerkote, P.O.
Bikramnagar, P.S. Amtali, District -
West Tripura.
........ Respondent
For the Appellant (s) : Mr. S.M. Chakraborty, Sr. Adv.
Mr. P. Sen, Adv.
For the respondent (s) : Mr. P. Choudhury, Adv.
Mr. T.K. Deb, Adv.
Date of hearing : 25.02.2020
Date of delivery of : 14.08.2020 *
Judgment & order
YES NO
Whether fit for reporting : √
HON‟BLE MR. JUSTICE S. TALAPATRA
1
JUDGMENT & ORDER
Against the judgment of reversal dated 24.04.2007
delivered in Title Appeal No.34 of 2006 by the Additional District
Judge, West Tripura, Agartala, Court No.2, the defendant has
preferred this appeal under Section 100 of the C.P.C.
Intervened by the lock-down of the court.
*
Page 2 of 33 [2] By the order dated 03.08.2007, this appeal was admitted on the following substantial questions of law:
(i) Whether reliance on the record of right by the Learned Appellate Court below in regard to the possession of the suit land by the Plaintiff-Respondent is right and sustainable in view of the decision of the Apex Court that revenue records do not prove possession and title and also that the entry in finally published Khatian presumes to be correct unless rebutted?
(ii) Whether non-consideration of fact that the Khatian produced and got exhibited and in regard to possession of 0.07 acre of land after the revisional survey was questioned by the Defendant-Appellant by preferring petition as provided by Section 95 of the T.L.R & L.R. Act, 1960?
(iii) Whether it is right to hold that the Defendant has to dis-prove and dispel the contention of the Plaintiff-
Respondent in regard to the possession etc. of the suit land by the Plaintiff-Respondent?
(iv) Whether the Learned Appellate Court below has committed error, in any case, without having local investigation by a Survey Commission to find out whether the Defendant-Appellant is possessing more that 15 gandas purchased by him from the father of the Plaintiff- Respondent as far as back in 1968?
(v) Whether non-consideration of oral evidence adduced by independent witness vitiates the Judgment and Decree by the Appellate Court?
(vi) Whether the observation of the Para-19 of the impugned Judgment and Decree to the effect that the Plaintiff-Respondent has never stated anywhere that the land measuring 0.07 acre has formed part of land measuring 15 gandas purchased by the Defendant- Appellant long ago, is incompatible with the conclusion reached by the learned Appellate Court below?
[3] The respondent filed the suit for declaration of title, confirmation of possession and for perpetual injunction. Thereafter, by virtue of the order dated 13.05.2005, the plaint was amended and the suit was converted for declaration of title and recovery of possession. The plaintiff in the suit being T.S No.103 of 2004, as Page 3 of 33 stated. When the temporary injunction as passed on 26.08.2004 stood vacated by the order dated 16.10.2004, the appellant having been collaborated by a group of anti-social elements, dispossessed the respondent [the plaintiff] from the suit land on 11.01.2005 in broad-day light at about 11 am and occupied the entire suit land by dismantling the boundary fencing and damaging other structures and tress standing on the suit land. The suit land pertains to Khatian No.1736, old survey plot No.1025 and present C.S. Plot No.1373/6371 admeasuring 0.07 acre. According to the respondent, he and his brother, sister and mother inherited 5½ gandas of land comprised in Khatian No.2864, Touzi No.1202, old dag No.1025 and present Dag No.1373 situated in the Mouza Bikramnagar, Tehshil- Bikramnagar, Pargana-Ishanchandranagar, P.S. Amtali. The suit land is butted and bounded by:
North : Harisankar Das, the appellant South : The plaintiff, his brother and sisters East : Sadhan Chandra Das West : Path and then Birendra Banik and Nanigopal Bhowmik.
[4] The defendant, the appellant herein, by filing the written statement has denied the plaintiff's case. According to the defendant, the father of the plaintiff, namely Manindra Chandra Karmakar, who was the owner of 0.89 acre of land comprised in the old plot No.1025 including Page 4 of 33 the suit land. During his lifetime, he had sold out 0.30 acre to the defendant, the appellant herein, on 20.01.1968 by the registered sale deed No.1-600 dated 20.01.1968, 0.26 acre of land to one Kalipada Deb by the registered sale deed No.1-1426 dated 10.02.1971 and 0.24 acre of land to Smt. Dipti Datta by the registered deed No.1-7200 dated 11.07.1969. Thus, the father of the plaintiff sold 0.80 acre of land and the remainder of his land admeasuring 0.09 acre has been inherited by the plaintiff and other legal heirs of Manindra Chandra Karmakar. Out of that land admeasuring 0.09 acre, 0.04 acre of land was sold out by an 'unregistered' deed to one Sadhan Chandra Das. Therefore, only 0.05 acre of land comprised in dag No.1025 remained in the account of the plaintiff and the other legal heirs of Manindra Chandra Karmakar, since deceased. The plaintiff and other legal heirs, as catalogued, inherited a piece of land admeasuring 0.05 acre. The plaintiff's contention is that he and other legal heirs transferred a piece of land measuring 0.07 acre to Promode Ranjan Roy and Badal Roy by the registered deed of sale which according to the defendant is a mere paper transaction. The defendant has been possessing an area of land admeasuring 0.30 acre, purchased from the father of the plaintiff, openly and uninterruptedly. But in Khatian bearing No.1364, instead of 0.30 acre, 0.24 acre had been recorded against the old Plot No.1025/6703 corresponding to new plot No.1372, whereas in Khatian opened after purchase, the recorded land in favour of the defendant-appellant is 0.24 acre against the plot Page 5 of 33 No.1025/6703. For such incorrect entry, the said defendant had filed a petition under Section 95 of Tripura Land Revenue and Land Reforms Act, 1965, the TLR & LR Act in short, for correction of records. But the said proceeding had been stayed as the dispute has been pending in the civil court. But in terms of the order dated 25.02.2020 the respondent has formally placed the order dated 16.09.2011 delivered in Revenue Case No.61 of 2006 under Section 95 of the TLR & LR Act by the District Collector.
[5] The Civil Judge, Jr. Division, Agartala, Court No.2 while dismissing the suit has returned the finding that from Exbt.B, Khatian No.1402 it appears that the entire plot No.1025 admeasuring 0.89 acre stood recorded in the name of Manindra Chandra Karmakar. Manindra Chandra Karmakar had acquired the right over the said land by way of allotment. The plaintiff has admitted that 0.30 acre of land was sold by his father from the old dag No.1025 in the year 1968 by Exbt.E, the sale deed No.1-600 dated 20.01.1968. But the plaintiff could not show any document that the plaintiff and other legal heirs inherited 0.11 acre of land from Manindra Chandra Karmakar. It has been further observed by the trial court that from Khatian No.229, a part of Exbt.3 series, it appears that the old plot No.1025 admeasuring 0.04 acre has been shown in the possession of one Sadhan Chandra Das by virtue of an unregistered sale deed. By the registered sale deed No.1-7220 dated Page 6 of 33 11.07.1969 Exbt.G it has been established that Manindra Chandra Karmakar sold 0.24 acre to one Smt. Dipti Datta and by another registered deed sale under No.1-1426 dated 10.02.1971 Exbt.I Manindra Chandra Karmakar sold out a piece of land admeasuring 0.26 acre to one Kalipada Deb. Thus, by Exbt.G/I, Exbt.I and Exbt.E, Manindra Chandra Karmakar sold out 0.80 acre of land from the old plot No.1025 and it appeared further that 0.04 acre of land had been handed over to one Sadhan Chandra Das by unregistered sale deed. Thus, the total land he parted with, admeasures 0.84 acre keeping with him 0.05 acre. In Khatian No.229, a part of Exbt.3 series, possession of Sadhan Chandra Das has been recorded. According to the trial court since the plaintiff and the legal heirs had no competence to sell the land beyond 0.05 acre, the registered sale deed No.1-2763 dated 23.08.1991 in favour of Promode Ranjan Roy and Badal Roy transferring a piece of land admeasuring 0.07 acre is nothing but a paper transaction and the repurchase by the plaintiff alone from Promode Ranjan Roy and Badal Roy is therefore, is a sham transaction. Thus, the plaintiff, according to the trial court has failed to locate the suit land with its actual measurement. As regards the incident of dispossession, the trial court has totally disbelieved the story of dispossession and consequently, the suit has been dismissed. [6] Being aggrieved, the plaintiff filed an appeal being Title Appeal No.34 of 2006 in the court of the District Judge, West Tripura Page 7 of 33 which appeal having been transferred to the Court of the Addl. District Judge, Court No.2, West Tripura, Agartala was heard and allowed on 24.04.2007 by the judgment as challenged in this appeal. [7] While reversing the judgment of the trial court, the first appellate court has returned the findings inter alia as under:
"14. The plaintiff approached the court under the present suit to declare his right, title and interest over the suit properties and therefore, it is the obligation on the part of the plaintiff to establish that his 0.07 satak of land (3½ gandas) classified as viti is owned by him and dispossessed by the defendant. According to the plaintiff he owned the land by way of inheritance. It, therefore, follows that the father of the plaintiff was the actual owner but the defendant by giving details of the sale deed has shown that the father has sold out total 84 satak of land in various sale deeds to different persons and therefore cannot be a land consisting of 0.07 satak. The disputed land is under C.S. Plot No.1373/6371 and Khatian No.1736. Said Khatian bearing No.1736 has been relied on by the plaintiff side as 1 of Exbt.3 series. This exhibit categorically shows that 0.07 acre of land under present C.S. Plot No. 1373/6371 is posted in favour of the plaintiff. The Exbt.B Khatian No.1402 which stands in the name of Manindra Ch. Karmakar, father of the plaintiff also shows that old C.S. Plot No. 1025 measuring 0.89 satak of viti type of land was posted in favour of the father of the plaintiff. But the Exbt.E Sale Deed dated 20.01.68 shows that 15 gandas of land was sold by the father from the said portion of land. Exbt.G another Sale Deed dated 11.07.1969 also shows that C.S. Plot No.1025 for a land of 12 gandas was also sold by the father of the plaintiff. Exbt.9 is another Sale Deed by which the father of the plaintiff sold 13 gandas of land from the said old Dag No.1025. Therefore, the exhibited Sale deeds of the defendant-respondent categorically shows that major portion of land were sold by the father of the plaintiff. This is in support of the Written Statement filed by the defendant. It has also been categorically stated by the defendant side that 4 satak of land was sold to one Sadhan Ch. Das by an unregistered Deed. Said Sadhan Ch. Das has not been examined to substantiate the said fact of transfer of 4 Satak of land by the father of the plaintiff nor the defendant could give any further accounts as to the remaining 5 satak of land. It is worthwhile to note here that Khatian of said 0.07 satak of land still stands in favour of the plaintiff whereas the defendant failed to account for 5 satak of lands and on the other hand 7 satak Page 8 of 33 of lands stands in favour of the plaintiff is indeed better evidence in favour of the plaintiff.
15. It is the settled position of law that settlement record is treated to be genuine unless contrary is proved. The defendant admitted that the father of the plaintiff was the original owner of 0.89 satak of land under old dag No.1025 and the plaintiff being the legal heir is of course entitled to such ownership over the properties left by deceased father.
16. The exhibit Khatian 229 which consists of 0.04 satak of land is also recorded in the name of the legal heirs of deceased Manindra Ch. Karmakar, father of the plaintiff. Of course in 24 No. of column on the said parcha name of Sadhan Das finds place as forceful occupier but fact remains that the land is included in the Khatian of plaintiff. Therefore, the Khatian No.229 and Khatian No.1736 favour the plaintiff‟s case. In this respect the decision of the Hon‟ble Supreme Court reported in AIR 1976 SC 1485 may appropriately be quoted as under:
"It is true that the entries in the revenue record ought, generally to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title."
[Emphasis added] [8] By the judgment dated 24.09.2014, this court has allowed this appeal filed by the defendants observing as follows:
".... this Court has no hesitation to hold that the plaintiff has measurably failed to establish his title or possession over the entire suit land and hence, the suit is liable to be dismissed. It is clarified that the appellant, the defendant in the suit, did not claim any title or possession beyond the land comprised in the old plot No.1025/6703 pertaining to Khatian No.1364 of Mouza- Bikramnagar admeasuring 0.30 acre. Hence, the impugned judgment and decree is set aside."
[9] The said judgment and decree respectively dated 24.09.2014 and 24.11.2014 had been challenged by filing a Special Page 9 of 33 Leave Petition being SLP(C) No.8898 of 2015 [related to Civil Appeal No.3967 of 2019] before the apex court. The apex court by its order dated 16.04.2019 has observed that since all the substantial questions of law or any of them has not been answered by this court, the said judgment dated 24.09.2014 cannot be held legally sustainable. The apex court having allowed the appeal and set aside the said judgment and remanded the second appeal to this court for rehearing it on merit in accordance with law. It has been observed in the order dated 06.04.2019 as follows:
"The case is remanded to the High Court for deciding the second appeal, out of which this appeal arises, afresh on its merits in accordance with law uninfluenced by any observations made in the impugned order and in this order because having formed an opinion to remand the case, we have not expressed any opinion on the merits of the controversy."
[10] The appeal was heard and the judgment was reserved on 05.11.2019. But while preparing the judgment it had been noticed that an error of serious nature has entered in the order dated 06.09.2019. But neither of the parties had brought the said error to the notice of this court. Consequently the order dated 25.02.2020 was passed by way of review permitting the respondent to place the order dated 16.09.2011 passed in Rev. Case No.61 of 2006 under Section 95 of the TLR & LR Act, 1960 by the District Collector, West Tripura, Agartala. The said order has Page 10 of 33 been according placed by the respondent on records. It may be mentioned that Mr. Chowdhury, learned counsel for the respondent in course of his submission has stated that the said order dated 16.09.2011 was enclosed with the SLP for consideration of the apex court. Therefore, the order was known to the appellant. The appellant, has, however, did not raise any plea about veracity of the order dated 16.09.2011.
[11] Mr. S.M. Chakraborty, learned senior counsel appearing for the appellant has stated that the defendant-appellant purchased 0.30 acre of land from the predecessor of the respondent, namely Manindra Chandra Karmakar by the registered sale deed dated 20.01.1968 and the purchased land has been recorded in Khatian No.4521 [Exbt.D]. Most interestingly, the said incidence of sale has not been questioned by the plaintiff. Mr. Chakraborty, learned senior counsel having referred to the observation of the first appellate court has further stated that the said purchased land admeasuring 0.30 acre is attracted by the plot No.1025/6703. Exbt.D, the said Khatian has recorded a road to the northern boundary of the purchased land. The deed dated 20.01.1968 [Exbt.E] clearly shows that road in the northern boundary. But the Page 11 of 33 schedule of the suit land as provided in the plaint shows a path in the west and thereafter, Birendra Banik. Therefore, it was absolutely necessary to ascertain whether the land admeasuring 0.07 acre covered by the schedule of the suit land or whether the suit land is the part of the land purchased by the appellant. The first appellate court, in this perspective fact, has observed that the appellant herein nowhere claimed the ownership of the suit land admeasuring 0.07 acre in the written statement or elsewhere. Even the first appellate court has observed that the transfer of land admeasuring 0.04 acre has not been established by any legal evidence. For the entry made in Khatian No.229 that one Sadhan Chandra Das has been occupying the land admeasuring 0.04 acre, it cannot be held that Sadhan Chandra Das had titled over the said land. As noted, the said entry stood deleted by the order dated 16.09.2011 passed in Rev Case No.61 of 2006 by the District Collector. The defendant-appellant in their written statement has stated that the ill motive of the plaintiff could not succeed as the entire jote land of the defendant admeasuring 15 gandas or 0.30 acre was not recorded in his favour. There had been some erroneous recording which has been subsequently sought to be corrected by filing the revision petition. It has been further asserted Page 12 of 33 that the suit has been filed by the plaintiff to grab illegally the land of the defendant. The first appellate court has observed that the defendant did not take a plea in the written statement or elsewhere that the suit land admeasuring 0.07 acre is included within the purchased land demised in the registered sale deed dated 20.01.1968. But it has been observed that the defendant has accounted the land properly by stating in the written statement that the plaintiff is entitled to and is in possession over a piece of land much less in area than what has been described in the schedule. From a bare reading of Khatian [Exbt.D] which was published on 24.11.1996 it appears that the land purchased by the defendant admeasuring 0.30 acre has been correctly shown in the mutated Khatian [Exbt.D]. But in the subsequent Khatian No.1364 [part of Exbt.3 series] the land of the defendant has been shown to be 0.24 acre. Mr. Chakraborty, learned senior counsel has quite emphatically submitted that for non-consideration of the said contemporaneous Khatian [Exbt.D] in respect of old plot No.1025/6703, corresponding to the new plot No.1372 which the defendant-appellant purchased by the registered sale deed dated 20.01.1968. The said error in respect of measurement of the purchased land has entered in Khatian No.1364. According to Mr. Page 13 of 33 Chakraborty, learned senior counsel, it transpires from Khatian [Exbt.D] that the piece of land admeasuring 0.30 acre under Plot No.1025/6703 has been recorded in favour of the appellant. For that, the plaintiff cannot have any grievance or claim over the suit land.
[12] Mr. Chakraborty, learned senior counsel to nourish his submission has placed reliance on an apex court decision in Abdul Raheem vs. Karanataka Electricity Board & Ors., reported in 2008 AIR (SCW) 463 to contend that there cannot be any doubt whatsoever that consideration of irrelevant fact and non- consideration of relevant fact would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the first appellate court ignoring vital documents may also lead to formation of a substantial question of law. On the same aspect, he has also referred to Hero Vinoth (Minor) vs. Seshammal, reported in (2006) 5 SCC 545 where the apex court has observed as follows:
15. In Neelakantan and Ors. v. Mallika Begum : (2002) 2 SCC 440, it was held that findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties. [See:
Krishna Mohan Kul v. Pratima Maity and others : (2004) 9 SCC 468].
16. It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the Page 14 of 33 terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an 'easement of necessity' thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law.
17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :
„The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and Page 15 of 33 if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.‟
19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
[Emphasis added] [13] The same principle has been restated in Fateh Singh (Dead) through Legal Representatives vs. Hari Chand and others, reported in (2017) 5 SCC 175 as relied by the counsel for the appellant.
[14] Appearing for the respondent, Mr. P. Choudhury, learned counsel has stoutly defended the impugned judgment and contended that the suit was filed for declaration of right, title and interest over the suit land. The plaintiff has discharged his Page 16 of 33 obligation by establishing that he owns 0.07 acre of land absolutely by virtue of the sale deed [Exbt.2]. The defendant has dispossessed him. The land was originally owned by the plaintiff as the co-parcener by way of inheritance. In contrast to the claim of the defendant, the plaintiff has established that the predecessor had sold out 0.80 acre of land by various sale deeds to different persons. The defendant in his written statement claimed that the predecessor of the plaintiff had sold out 0.84 acre of land including the land which was purportedly sold to one Sadhan Chandra Das by an unregistered sale deed. Therefore, there cannot be a land admeasuring 0.07 acre. The disputed land according to Mr. Choudhury, learned counsel falls within CS Plot No.1373/6371 corresponding to old plot No.1025 recorded in Khatian No.1736 admeasuring 0.07 acre i.e. 3½ ganda of land. For purpose of reference, the physical boundary of the suit land as provided by the schedule of the suit land is relevant and for that reason, the physical boundary in terms of the schedule of the suit land, is reproduced below:
By North : Harisankar Das [the defendant]
By South : The plaintiff and his relatives
By East : Sadhan Chandra Das and
By West : Path and then Dhirendra Banik.
Page 17 of 33
[15] From Khatian No.1402 which stands in the name of the
predecessor of the plaintiff it transpires that the old CS Plot No.1025 was of the size of 0.89 acre and was recorded in favour of the predecessor of the plaintiff. It has not been denied by the plaintiff that by the sale deed dated 20.01.1968 [Exbt.E] a land admeasuring 0.30 acre was sold out by the predecessor of the plaintiff, his father, from the entire tract of the land. By another sale deed dated 11.07.1969 [Exbt.G] a piece of land admeasuring 0.24 acre from the said plot No.1025 was sold by the predecessor of the plaintiff. By another sale deed [Exbt.9] the predecessor of the plaintiff sold 0.26 acre of land from the same old plot No.1024. Thus, it has been transparently clear that out of 0.89 acre of land by those 3[three] sale deeds, 0.80 acre of land has been sold out from the said plot No.1025. It was the claim of the defendant initially that 0.04 acre of land was transferred to one Sadhan Chandra Das by one unregistered deed. It may be noted at this point that Sadhan Chandra Das has not been examined for purpose of showing any lien on any part of the suit land or to support his possession. Thus, in this perspective fact, by the judgment dated Page 18 of 33 24.04.2007 it has been observed by the first appellate court as follows:
"It is worthwhile to note here that Khatian of the said 0.07 satak of land still stands in favour of the plaintiff whereas the defendant failed to account for 5 satak of land and on the other hand, 7 satak of land in favour of the plaintiff is indeed a better evidence in favour of the plaintiff."
[16] In Para-16 of the said judgment, the first appellate court has observed as under:
16. The exhibit Khatian 229 which consists of .04 satak of land is also recorded in the name of the legal heirs of deceased Manindra Ch. Karmakar, father of the plaintiff.
Of course in 24 nos of column on the said parcha name of Sadhan Das finds place as forceful occupier but fact remains that the land is included in the Khatian of plaintiff. Therefore, the Khatian No.229 and Khatian No.1736 favour of the plaintiff‟s case. In this respect the decision of the Hon‟ble Supreme Court reported in AIR 1976 SC 1485 may appropriately be quoted as under:
"It is true that the entries in the revenue record ought, generally to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title."
[17] It has been also observed that the land which was purchased by the appellant on 20.01.1968 admeasuring 0.03 acre has been duly recorded in Khatian No.4521 [Exbt.D] which has been opened in complete conformity to the description of the land provided in the sale deed dated 20.01.1968. Thus, the first Page 19 of 33 appellate court negotiated the question whether it was absolutely necessary to ascertain that the land admeasuring 0.07 acre shown in the schedule of the suit land is included in the purchase deed of the defendant. The defendant-appellant, according to the first appellate court, did not claim any ownership on the aforesaid 0.07 satak of land nor the defendant raised any plea in the written statement that if the said land is collated with the land as described in the sale deed dated 20.01.1968, it would show the suit land is parcel of the purchased land. The first appellate court while reversing the judgment dated 05.04.2006 delivered in T.S. No.103 of 2004 has observed that it was already pointed out that the transfer of a piece of land admeasuring 0.04 acre to Sadhan Chandra Das has not been established by the evidence. Thus, the plea of the defendant cannot be accepted that the said piece of land admeasuring 0.04 acre was legally sold out. The first appellate court has categorically recorded its finding in Para-19 of the said judgment that the plaintiff did not dispute transfer of 0.30 acre of land by his father on 20.01.1968 to the defendant. It has also not been adverted by the plaintiff that the disputed land admeasuring 0.07 acre has been included in the said land admeasuring 0.30 acre as depicted in the sale deed dated 20.01.1968 as the purchased Page 20 of 33 land. On the other hand, the defendant has also failed to account for 0.05 satak of land and transfer of 0.04 satak of land in favour of one Sadhan Chandra Das by an unregistered sale deed. Thus, the first appellate court has observed that correctness of the settlement record [Khatian No.1736] cannot be questioned so far the land admeasuring 0.07 acre is concerned. The finding of the first appellate court has not been challenged by the plaintiff. On the basis of the above finding, the first appellate court returned the finding that the issue of title has been decided on surmise and conjecture. Even Khatian No.1736 and Khatian No.229 have been ignored. These two khatians account for [0.07 + 0.04]=0.11 acre of land. Thus, the denial to declare the title in favour of the plaintiff for a piece of land admeasuring 0.07 acre of land is grossly perverse. Even the story of dispossession on 11.01.2005 has been believed by the first appellate court. Even though the witnesses adduced by the defendant denied the said story of dispossession. [18] Mr. Choudhury, learned counsel has urged this court to take notice of the order dated 16.09.2011. A certified copy of the said public document has been placed on records in terms of the order dated 25.02.2020. This court does not find any difficulty to Page 21 of 33 take notice of this document for its very nature. From a reading of the said order dated 16.09.2011, it appears that the plot No.1373 admeasuring 0.04 acre has been directed to be recorded in the Khatian No.229 of the plaintiff under Mouza-Bikramnagar by deleting the name of Sadhan Chandra Das from Khatian No.1972 and the name of Sadhan Chandra Das shall also be deleted from Khatian No.229 of the plaintiff recorded against hal plot No.1369. The appellant did not place any document to rebut the said contention. This court is not aware whether the said order has been further challenged by any person. Mr. Choudhury, learned counsel has pointed out that PW-2 has identified the suit land in his examination-in-chief as follows:
"That I say that the suit land is measuring approx 3½ gandas and butted and bounded in the North by the defendant, in the South by Plaintiff, in the East by Sadhan Das, and in the West by Path and then Birendra Banik at present by Ratan Debbarma and Ratan Dutta."
There had been no cross-examination on that statement. Not only that, PW-3 has also corroborated PW-2 in this respect. [19] Mr. Choudhury, learned counsel has pointed out that to frustrate the claim of the plaintiff, the defendant in his deposition has included the said land admeasuring 0.04 acre. Even the account that the defendant has given in his deposition would clearly Page 22 of 33 show that if that land admeasuring 0.04 acre is added to the account of the plaintiff, according to the defendant, there would be 0.09 acre with the plaintiff and that is the land that has been inherited by the plaintiff and other legal heirs of Manindra Chandra Karmakar. Therefore, there is no imperfection or perversity in the finding of the first appellate court. Thus, this appeal is liable to be dismissed. Mr. Choudhury, learned counsel has further submitted that in Khatian No.229 of Mouja- Bikramnagar published on 30.09.1988 it has been shown that the plaintiff and his co-sharers were in possession of 0.11 acre of land against RS Plot No.1373. The transfer of land admeasuring 0.07 acre to one Sri Pramode Ranjan Roy and Sri Badal Roy by the sale deed dated 23.08.1991 [Exbt.1] and the retransfer of the said land by the sale deed dated 15.02.1999 [Exbt.2] in favour of the plaintiff alone has not been questioned, save and except the physical existence of the land under transaction. However, it has been emphasized that the mutation of Khatian has done following the due process. On the basis of the said sale deed [Exbt.2] Khatian No.1736 of Mouja- Bikramnagar [Exbt.3] has been opened. Thus, the suit land as recorded in RS Plot No.1373/6971 admeasuring 0.07 acre in Khatian No.1736 of Mouja-Bikramnagar has been established to be Page 23 of 33 the land owned by the plaintiff. According to Mr. Choudhury, learned counsel, the trial Judge has lost sight of this evolution of record. Why the less amount of land was recorded in favour of the defendant is a matter of inquiry and cannot be related to the present controversy. In support of his contention, Mr. Choudhury, learned counsel, has relied a decision of the apex court in Vishwa Vijay Bharati vs. Fakhrul Hassan and others, reported in AIR 1976 SC 1485, the said report has been relied by the first appellate court and the relevant part has been reproduced hereunder. In that report, the apex court has observed that the decision of the appeals involves a very narrow question as regards the power of the High Court in a second appeal. Section 100 of the Code of Civil Procedure provides, to the extent material that an appeal can lie to the High Court from a decree, now judgment, passed in appeal by any court sub-ordinate to the High Court if the decision or any deduction is contrary to law or to some usage having the force of law. The only question for decision before the High Court was whether the respondents were entitled to the protection under Section 20(b) (ii) of U.P. Zamindari Abolition and Land Reforms Act, 1951. That section provides in so far as material, that every person who was recorded as an occupant of Page 24 of 33 any land in the khasra or khatauni of 1356 fasli but who was not in possession in the year 1359 fasli shall be called an adivashi of the land and shall be entitled to written possession thereof. The district court rejected those entries on the ground that those were fraudulent. Thus, the only question before the High Court was whether the entries on which the respondents had relied were genuine or fraudulent. That is a question of fact and the High court has no jurisdiction to set aside in second appeal the finding recorded on that question by the District Court. [20] Before this court proceeds to appreciate the substantial questions of law as noted before, it would be apposite to rely to a decision of the apex court in Ramlal and another vs. Phagua and others, reported in (2006) 1 SCC 168 where the apex court has observed as follows:
19. In Mohan Lal vs. Nihal Singh : AIR 2001 SC 2942, the trial court dismissed the suit for the reasons recorded therein on the basis of the record and oral evidence. The lower appellate court, as noticed earlier, had not considered oral and documentary evidence properly. The lower appellate court which is the final Court of fact mechanically confirmed the findings of the trial court and upheld the judgment of the trial court dismissing the suit.
The High Court for the cogent and convincing reasons recorded in the judgment has rightly interfered with the concurrent findings of both the courts. In our view, both the lower courts have concurrently erred in not appreciating the oral and documentary evidence properly and, therefore, the High Court is at liberty to re- appreciate the evidence and record its own conclusion for reversing the orders passed by the lower Court. The judgment of this court in the case of Mohan Lal vs. Nihal Singh (Supra) cited by the learned counsel for the Page 25 of 33 appellant will not be of any assistance to the appellant herein.
20. In Thiagarajan and Others vs. Venugopalaswamy B. Koil and Others : (2004) 5 SCC 762, the High Court has framed a substantial question of law as extracted in paragraphs (supra). Learned counsel for the appellants submitted that the High Court has not framed any other substantial question of law at the time of hearing except framed at the stage of admission. Sub-section 5 of Section 100 says that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is specified that the case involves such question. As could be seen from the High Court records, no attempt was ever made by counsel for the appellants to formulate any other substantial question of law at the time of hearing. Therefore, the case of Thiagarajan vs. Sri Venugopalaswamy B. Koil and Others (supra) is not applicable to the case on hand and is distinguishable on facts and law.
[Emphasis added] [21] 6 [Six] substantial questions of law have been formulated by the order dated 03.08.2007. Having due regard to the judgment dated 06.04.2019 as delivered in Civil Appeal No.3967 of 2019 titled as Ranjit Karmakar @ Dulal Karmakar vs. Hari Sankar Das let each of the question be appreciated separately. It may be noted that no further question has been suggested by the appellant in the course of hearing.
(i) Whether reliance on the record of right by the Learned Appellate Court below in regard to the possession of the suit land by the Plaintiff- Respondent is right and sustainable in view of the decision of the Apex Court that revenue records do not prove possession and title and also that the entry in finally published Khatian presumes to be correct unless rebutted?
Page 26 of 33[22] This question can be divided in 3[three] sub-questions viz. (a) whether the record of right [Khatian] can be relied as proof of possession and (b) whether there is any decision of the apex court to the effect that the record of right cannot stand as proof of possession and title or (c) whether entry in the finally published Khatian can be presumed to be correct unless rebutted. [23] The record of right is prepared following the provisions of TLR & LR Act, 1960 or rules made thereunder. Section 42 of the TLR & LR Act provides the duty of survey officer to prepare a record of rights. Section 43 of the TLR & LR Act provides the draft publication of the record of right and the final publication of the record of right. Section 45 of the TLR & LR Act provides the provision for revision of entries in finally published record of rights and Section 46 provides the register of mutation. Those provisions are supplemented by the TLR & LR Rules, 1961, particularly, the Rules 53,54,55,56,68,68A and 70 etc. In the record, there is a specific column to denote the possession. That apart, the name of the holder of title and nature of title are also recorded in Khatian [the record of right] under the respective column. Section 43 (3) of the TLR & LR Act provides for presumption as to the correctness of Page 27 of 33 the entries in the record of rights. Section 43 (3) of the TLR & LR Act precisely provides that every entry in the record of right as finally published shall, until the contrary is proved, be presumed to be correct. It is well known that record of right is prepared for fiscal purpose for realizing land revenue. Ordinarily those entries cannot be used either as a proof of possession or of ownership. In Surajbhan vs. Financial Commissioner, reported in (2007) 6 SCC 186 it has been held that it is well settled that an entry in the revenue records does not confer title on a person whose name appears in record of rights. It is settled law that entries in the revenue records or jamabandi have only 'fiscal purpose i.e., payment of land revenue and no ownership is conferred on the basis of such entries. So far as title to the ownership is conferred on the basis of such entries. So far the title to the property is concerned, on the basis of such entries. It can only be decided by a competent civil court.' But in view of Section 43(3) of the TLR & LR Act the court can presume possession as the column for possession is filled up on the basis of the field survey. Unless it is rebutted to the effect that such entry has not been correctly recorded, the entries in the finally published Khatian can be presumed to be correct. So far the title is concerned, the presumption can be drawn, but for title primary evidence is the title deed. In the present case, title of the predecessor of the plaintiff has not been Page 28 of 33 challenged. On the contrary, the defendant admitted that he had purchased the land from the predecessor of the plaintiff whose name was recorded in Khatian No.1402 [Exbt.B] of Mouja- Bikramnagar. By the sale deed dated 20.01.1968, 0.30 acre of land was purchased from the plot No.1025, recorded in Khatian No.2864. Thus, in view of the clear statutory provision, this question cannot be treated as a substantial question of law.
(ii) Whether non-consideration of fact that the Khatian produced and got exhibited and in regard to possession of 0.07 acre of land after the revisional survey was questioned by the Defendant-Appellant by preferring petition as provided by Section 95 of the T.L.R & L.R. Act, 1960?
[24] The defendant did not admit any documents showing the outcome of the purported proceeding as drawn under Section 95 of the TLR & LR Act and from the list of exhibited documents as provided in the judgment dated 05.04.2006 by the trial court it is apparent that one order dated 28.06.2005 has been admitted as Exbt.J. The said order shows the initiation of the proceeding under Section 95 of the TLR & LR Act being Rev Case No.188 of 2005. This cannot aid the claim of the defendant. Moreover, this court has noticed that Khatian No.4521 [Exbt.D] is not a finally published Khatian and as such, on the basis of that no inference can be Page 29 of 33 drawn so far the land of the defendant is concerned. Khatian No.1368 has been finally published on 30.09.1988 but in that Khatian, against the plot No.1372 corresponding to old plot No.1025/6703[P] a land admeasuring 0.24 has been recorded. Thus, the first appellate court did not commit any irregularity. Moreover, the first appellate court has inferred ownership of the defendant over a piece of land admeasuring 0.30 acre curved out from the old plot No.1025 of Mouja-Bikramnagar.
(iii) Whether it is right to hold that the Defendant has to dis-prove and dispel the contention of the Plaintiff-Respondent in regard to the possession etc. of the suit land by the Plaintiff-Respondent?
[25] Mr. S.M. Chakraborty, learned senior counsel has candidly submitted that this cannot be treated as substantial question of law inasmuch as in this regard, the statutory law is unambiguous. Hence, no further reasoning is called for.
(iv) Whether the Learned Appellate Court below has committed error, in any case, without having local investigation by a Survey Commission to find out whether the Defendant-
Appellant is possessing more that 15 gandas purchased by him from the father of the Plaintiff-Respondent as far as back in 1968?
Page 30 of 33[26] As there is no ambiguity in the description of the suit land nor any issue has been raised in respect of the identification of the suit land nor any necessities has been demonstrated by either of the parties, the trial court or for that matter the first appellate court did not commit any irregularity by not directing local inquiry.
(v) Whether non-consideration of oral evidence adduced by independent witness vitiates the Judgment and Decree by the Appellate Court?
[27] The oral evidence as adduced by the plaintiff in respect of dispossession from the suit land has been delivered without elaborate reference to the testimonies by the trial court. But the first appellate court by the impugned judgment [in Para-23] has interfered the said finding by observing that the evidence of PWs-2 & 3 could not have been discarded. The crux of the evidence of PWs-2 & 3 has been referred above. On the face of the records, it appears that the oral evidence has been taken into consideration by the courts below. Hence, this question does not constitute substantial question of.
(vi) Whether the observation of the Para-19 of the impugned Judgment and Decree to the effect that the Plaintiff-Respondent has never stated anywhere that the land measuring 0.07 acre has formed part of land measuring 15 gandas purchased by the Defendant- Appellant long ago, is incompatible with the conclusion reached by the learned Appellate Court below?
Page 31 of 33[28] In Para-19 of the judgment dated 24.04.2007, the first appellate court has observed that the plaintiff's side did not dispute the transfer of 30 satak [0.30 acre] of land by his father on 20.01.1968 to the defendant. It is not adverted by the plaintiff that the disputed 0.07 acre of land has been included in the land of the defendant admeasuring 0.30 acre. On the other hand, the defendant has failed to account for 0.06 acre of land and transfer of 0.04 acre of land in favour of Sadhan Chandra Das by an unregistered sale deed. Therefore, there is no infirmity in the finding and moreover, as the plaintiff did not claim that his 0.07 acre land falls within the purchased land of the defendant, this cannot be in case of overlapping of plots for erroneous description. This substantial question of law is, therefore, not tenable as for being the correct reflection of the records.
[29] Having observed thus, this court is persuaded to hold that after the order dated 16.09.2011 as passed in Rev Case No.61 of 2006 by the District Collector, the ownership of the land comprised in plot No.1339 corresponding to old plot No.1025(P) recorded in Khatian No.229 of Mouja-Bikramnagar has come out of penumbra inasmuch as the name of Sadhan Chandra Das has been Page 32 of 33 deleted from the column No.24 of the said Khatian. Be that as it may, the names of the plaintiff and other legal heirs of Manindra Chandra Karmakar have been recorded in Khatian No.229 as the holder of the title. It has been proved by the plaintiff that by the sale deed dated 23.08.1991 [Exbt.1] the said legal heirs had jointly transferred a piece of land admeasuring 0.07 acre from the plot No.1373 corresponding to old Plot No.1025 in favour of Promode Ranjan Roy and Badal Roy. Later on, Promode Ranjan Roy and Badal Roy by the sale deed dated 25.02.1999 transferred the said land in favour of the plaintiff alone. After purchase, Promode Ranjan Roy and Badal Roy got their land mutated. A new Khatian being 1736 was opened and that was curved out from old Khatian No.229. The defendant did not claim any right over the land [Exbt.C]. For that purpose, Para-6 of the deposition of the defendant [DW-1] may be referred. His objection is that the land recorded under Khatian No.229 is imaginary and he has given the account of land from the original size to the present size which has been inherited by the plaintiff and other legal heirs of Manindra Chandra Karmakar. That apart, in Para-4 of the deposition, the defendant has stated that during inquiry relating to Rev Case No.188 of 2005 he was found on possession over the said land Page 33 of 33 admeasuring 0.06 acre in addition to the land admeasuring 0.24 acre. But the final order could not be passed for pendency of the civil suit. From the description of the suit land it is apparent that the suit land is comprised in Khatian No.1736 and CS Plot No.1373/6371. Thus, there cannot be mere claim from the defendant. Even though the defendant has purchased the land from the same old plot No.1025. CS Plot No.1373 have admittedly originated from the old plot No.1025, but the claim of the defendant that the legal heirs of Manindra Chandra Karmakar did not inherit more than 0.05 acre has been disproved and in this regard, the finding of the first appellate court cannot be faulted with.
Accordingly, the judgment dated 24.04.2007 is affirmed in terms of the observation made above.
[30] In the result, this appeal stands dismissed.
Prepare the decree accordingly.
Send down the LCRs forthwith.
JUDGE Sujay