Tripura High Court
Smt. Mina Sinha vs Shri Kajalmani Sinha Alias Kajal Sinha on 11 February, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 18
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
RSA. No. 17 of 2018
Connected with
RSA. No. 18 of 2018
RSA. No. 17 of 2018
1. Smt. Mina Sinha, wife of late Trideep Sinha,
2. Shri Pankaj Sinha, son of late Trideep Sinha
3. Smt. Priyanka Sinha, daughter of late Trideep Sinha
4. Shri Polit Sinha, son of late Trideep Sinha
5. Smt. Jatna Sinha, wife of Shri Joykumar Sinha and
daughter of late Trideep Sinha.
All are residents of village and post office Kirtantali, P.S.
Kailashahar, District: Unakoti.
6. Smt. Rina Sinha, wife of Shri Apu Sinha and daughter of
late Haripada Sinha of Kamalpur, Goalmara, District:
Dhalai.
.... Appellant-plaintiffs
-V E R S U S-
1. Shri Kajalmani Sinha alias Kajal Sinha, son of late
Kamala Kanta Sinha,
2. Smt. Anita Sinha, wife of late Nirmal Kanti Sinha alias
Nirmal Sinha,
All are residents of village and post office Kirtantali, P.S.
Kailashahar, District: Unakoti.
3a. Smt. Hemaprobha Sinha, wife of late Satish Sinha,
resident of Isobpur, P.O. Isobpur, P.S. Kailashahar,
District: Unakoti.
3b. Shri Sajal Sinha, son of late Satish Sinha, resident of
Choudhuripara, P.O. Goldharpur, P.S. Kailashahar,
District: Unakoti.
***as per Hon‟ble court‟s order dated 04.09.2019 passed in
connected I.A. No. 02 of 2019 the address of the
respondent No.3(c) has been made in the following way:
3c. Smt. Shibani Sinha, wife of Sri Subrata Sinha, daughter of late Satish Sinha, presently residing at Kachucharra TSR Headquarter, 3rd Battalion, Dhalai, Tripura.
Page 2 of 183d. Smt. Anindita Sinha, daughter of late Satish Sinha, resident of Choudhuripara, P.O. Goldharpur, P.S. Kailashahar, District: Unakoti, Tripura-799279.
..... Respondent-defendants.
RSA. No. 18 of 20181. Smt. Mina Sinha, wife of late Trideep Sinha,
2. Shri Pankaj Sinha, son of late Trideep Sinha
3. Smt. Priyanka Sinha, daughter of late Trideep Sinha
4. Shri Polit Sinha, son of late Trideep Sinha
5. Smt. Jatna Sinha, wife of Shri Joykumar Sinha and daughter of late Trideep Sinha.
All are residents of village and post office Kirtantali, P.S. Kailashahar, District: Unakoti.
6. Smt. Rina Sinha, wife of Shri Apu Sinha and daughter of late Haripada Sinha of Kamalpur, Goalmara, District:
Dhalai.
.... Appellant-plaintiffs
-V E R S U S-
1. Shri Kajalmani Sinha alias Kajal Sinha, son of late Kamala Kanta Sinha,
2. Smt. Anita Sinha, wife of late Nirmal Kanti Sinha alias Nirmal Sinha, All are residents of village and post office Kirtantali, P.S. Kailashahar, District: Unakoti.
3a. Smt. Hemaprobha Sinha, wife of late Satish Sinha, resident of Isobpur, P.O. Isobpur, P.S. Kailashahar, District: Unakoti.
3b. Shri Sajal Sinha, son of late Satish Sinha, resident of Choudhuripara, P.O. Goldharpur, P.S. Kailashahar, District: Unakoti.
Page 3 of 18***as per Hon‟ble court‟s order dated 04.09.2019 passed in connected I.A. No. 02 of 2019 the address of the respondent No.3(c) has been made in the following way:
3(c). Smt. Shibani Sinha, wife of Sri Subrata Sinha, daughter of late Satish Sinha, presently residing at Kachucharra TSR Headquarter, 3rd Battalion, Dhalai, Tripura.
3d. Smt. Anindita Sinha, daughter of late Satish Sinha, resident of Choudhuripara, P.O. Goldharpur, P.S. Kailashahar, District: Unakoti, Tripura-799279.
..... Respondent-defendants.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD For Appellant(s) : Mr. S. M. Chakraborty, Sr. Advocate.
Mrs. P. Chakraborty, Advocate.
For Respondent(s) : Ms. S. Deb, Advocate.
Date of hearing
And delivery of
judgment and order : 11.02.2022
Whether fit for reporting : NO
JUDGMENT & ORDER [ORAL]
Heard Mr. S. M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the appellants- plaintiffs. Also heard Ms. S. Deb, learned counsel appearing for the respondents-defendants.
[2] Both these second appeals are heard and decided together since, they are connected by way of common judgment and decree. As such, they are combined for disposal by a common judgment and order inasmuch as, both the appeals emerged from the common judgment and decree dated 17.04.2018 delivered in Title Appeal No. 01 of 2017 and Title Appeal No. 02 of 2017 respectively, by the learned Addl. District Judge, Unakoti, Kailashahar. The learned Additional District Judge, Unakoti, Kailashahar, in Title Appeal No.01 of 2017 and Title Appeal Page 4 of 18 No.02 of 2017 respectively, affirmed the judgment and decree dated 02.12.2016 passed in Title Suit No.26 of 2015 and Title Suit No.01 (CC) of 2016 passed by the learned Court of Civil Judge, (Sr. Division), Unakoti, Kailashahar. At the time of admitting the appeals, the following substantial questions of law were formulated by this Court:
RSA. No. 17 of 2018:
"1. Whether the first appellate Court has committed serious error of law by ignoring the oral evidence of PW-3, Shri Anil Kumar Sinha who is one of the attesting witness in the suit deed as the corroborated the plaintiff's case that the plaintiff did not execute the suit deed?
2. Whether the concurrent finding as returned by the impugned judgment on the issue of limitation can be sustained in view of the fraud exercised by the defendants?"
RSA. No. 18 of 2018:
"Whether the defendant-respondents could have maintained the counter-claim having regard to the order dated 23.04.2003 by which his suit being T.S. 23 of 2001 was dismissed for non-prosecution under Order-9 Rule-8 of the CPC, inasmuch as Orde-9 Rule-9 clearly stipulates that unless such order passed under Order-9 Rule- 8 of the CPC is reverse by the competent Court, such decision would operate against fresh institution of the suit on the same cause"
[3] The factual aspects of the case of the appellants in brief are as follows:
The plaintiff of Title Suit No.26 of 2015 and opposite party/defendant in Title Suit No.1 (CC) of 2016 pleaded his case that the plaintiff‟s is the lawful owner and exclusive possessor of the land as described in 1 st schedule and who was an ex-serviceman under Police Department, Government of Assam and he never sold out the related land to one Kamala Kanta Sinha, the father of the defendant No.1 and father-in-law of defendant No.2 by any means or by executing any kind of deed. But, the plaintiff could learn about the existence of these two deeds on 29.08.2015.Page 5 of 18
Thereafter, he applied for certified copy of suit deed and he collected the same on 31.08.2015 and could learnt perfectly about the suit deed as described in 2nd schedule and which was created secretly by Kamala Kanta Sinha, the father of defendant No.1 by exercising fraud and by mis- representation and false personation before the Sub-Register Office, Kailashahar in collusion with attesting witness and the scribe (defendant No.3) with a view to grab a landed property of the plaintiff.
[4] After collecting the certified copy of suit deed, the plaintiff could learn that the purported fraudulent deed was executed in respect of related land as described in 1st schedule of the plaintiff in favour of Kamala Kanta Sinha, the predecessor of the defendant Nos.1 and 2 most illegally and as such, the purported suit deed has no legal force and is a void deed.
[5] After collecting the certified copy of the suit deed, when the plaintiff asked the defendant No.3 as to why such a deed was prepared in his name, he could not give any satisfactory answer and even some attesting witnesses also denied their knowledge about the purported deed. The plaintiff recently learnt that on the basis of said purported suit deed, the cunning predecessor of defendant Nos.1 and 2 prepared one khatian bearing No.89 in his name in respect of related land and knowing the facts the plaintiff submitted a revenue case under Section-95 of TLR & LR Act for cancellation of illegally created khatina.
[6] The plaintiff also stated that the suit deed is effect of fraud, collusion, mis-representation, false personification and it is illegal and not binding upon the plaintiff. He further stated that although the predecessor of defendant Nos.1 and 2 created the suit deed and illegal khatian, but the related land is still in possession of the plaintiff b y constructing dwelling hut and shop and neither Kamala Kanta Sinha nor the present defendant Nos.1 and 2 had/have any kind of possession over the related land as described in 1st schedule. The plaintiff also stated that the cause of action Page 6 of 18 for this suit arising with effect from 31.08.2015 when the certified copy of the suit deed was collected by the plaintiff and also on subsequent other dates which is continuing also.
[7] The plaintiff thus prayed for granting declaration that the suit deed of 2nd schedule be declared illegal, ineffective being violation of provisions of TP Act and Registration Act and not binding upon the plaintiff and the plaintiff is the owner of the 1st schedule land.
[8] The defendants of Title Suit No.26 of 2015 and counter claimant of Title Suit No.1 (CC) of 2016 in their written statement and in the counter claim stated that the suit is not maintainable in its present form. The suit is bad for mis-joinder and non-joinder of necessary parties. The plaintiff has no cause of action for the present suit. The suit is barred by law of limitation and hence, it is liable to be dismissed.
[9] After evidences, the learned trial Court dismissed the suit of the plaintiff numbered T.S. 26 of 2015 while allowing the counter claim by its judgment and decree dated 02.12.2016. That being aggrieved and dissatisfied by the judgment dated 02.12.2016, the appellant plaintiff then preferred an appeal before the learned Addl. District Judge, Unakoti Judicial District, Kailashahar against the judgment and decree dated 02.12.2016 passed by the learned Civil Judge, Sr. Division, Unakoti, Kailashahar in T.S. 26 OF 2015 and the same was registered as T.A. No. 01 of 2017 as well as an appeal against counter claim numbered T.S. (1(CC) of 2016.
[10] It is pertinent to mention herein that the respondent- defendants despite having the original title deed No.1-779 dated 16.03.1982 exhibited the certified copy of the same at the time of trial and the original title deed was submitted on record at the time of argument and was not exhibited but, has furnished no explanation for non-production of Page 7 of 18 the original title deed at the time of evidence. The plaintiff-appellants filed an application for the opinion of fingerprint experts under Section-45 of the Evidence Act read with Section-107 and the learned 1st Appellate Court by its order dated 10.11.2017 rejected the prayer of the appellants and the appeal was heard finally on 20.03.2018 and the judgment was delivered on 17.04.2018.
[11] The learned Appellate Court after hearing the parties on the basis of argument and on the material available on record, has observed as under:
"As it is already decided in point No.3 that counter-claimant is entitled to get the declaration of right, title and interest over the suit land, so counter-claimants as legal heir of Kamala Kanta Sinha is entitled to get declaration that he is entitled to get compensation in connection with L.A. Case No.3/Kal/2012. Thus, point Nos.5 and 6 are decided in favour of the counter-claimant side. Learned trial Court rightly decided issue Nos.7 and 8 in favour of the counter-claimant side.
Hence, in the result, the present appeals bearing Nos. Title Appeal No.1 of 2017 and Title Appeal No.02 of 2017 filed by the appellants-plaintiffs against the respondents-defendants being devoid of merit are accordingly dismissed on contest with cost."
[12] Being aggrieved and dissatisfied by the judgment dated 17.04.2018 passed by the learned Addl. District Judge, Unakoti, Kailashahar, in T.A. No. 01 of 2017, the appellants have preferred this appeal before this Court.
[13] Mr. S. M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the appellants in support of their case has contended that the learned Appellate Court while concurring with the learned trial Court, erred both in law and facts while dismissing the appeal filed by the appellants. The learned Appellate Court misread the evidences on record and wrongly concurred with the learned trial Court below. He has further submitted that the learned trial Court most wrongly admitted in evidence certified copies of the plaint of T.S. Page 8 of 18 No. 23 of 2001 which are not public documents and thus, the certified copies of those are not admissible and required proof which can only be done by production of the original plaint and the learned 1 st Appellate Court without applying its judicial mind to such error of law most wrongly upheld the judgment of the trial Court.
[14] He had further submitted that PW-3 Shri Anil Kumar Sinha son of late Dhan Sena Sinha who has categorically stated in his examination-in-chief that he has not signed as a witness in the registered deed No.1-779 dated 16.03.1982. Both the courts below have failed to apply their judicial mind in the fact that even though the defendant respondents had custody of the original sale deed bearing No.1-779 dated 16.03.1982, they had failed to produce the same at the time of evidence and where the vendor himself had taken the stand and denied execution of the same no effort was taken by the defendant-respondents to prove his signature on the original registered sale deed.
[15] Mr. Chakraborty, learned senior counsel has averred that both the courts below had failed to apply its judicious mind to the facts and evidences on record which clearly show that the suit deed vide No.1-779 dated 16.03.1982 is a fraudulent deed and ought not to have dismissed the suit of the plaintiffs, the appellants herein on the ground of limitation as there can be no application of limitation against fraud.
[16] In view of above analysis and discussion of the counsel on behalf of the appellants as well as the observation made by the learned Appellate Court, to come to a definite conclusion, we are to discuss the legal proposition once again. On hearing both the parties and on perusal of respective pleadings, the following issues were framed in the main suit and in the cross suit separately which are as follows:
Issues in T.S. No.26 of 2015 Page 9 of 18(i) Has the plaintiff cause of action in his favour?
(ii) Is the suit maintainable?
(iii) Is the suit barred by law of limitation?
(iv) Is the registered suit deed bearing Nos.1-779 dated 16.03.1982 of Kailashahar Sub-Registry Office (2nd schedule was created fraudulently by mis-representation and false personation?
(v) Has the plaintiff entitled to get decree of declaration that the above suit deed is illegal, ineffective and non binding upon the plaintiff along with cost?
Issue in T.S. No. 1(CC) of 2016
(i) Has the plaintiff (counter-claimant) cause of action in his favour?
(ii) Is the suit maintainable?
(iii) Is the suit barred by Res-judicata?
(iv) Whether the counter-claimant was disposed from the suit land on 15.07.2010 by the defendant -OP?
(v) Whether the counter-claimant is entitled to get the declaration of right, title and interest over the suit land?
(vi) Whether the counter-claimant is entitled to get the decree for declaration of recovery of possession of the part of suit land occupied by the OP/plaintiff?
(vii) Whether a portion of the suit land was acquired by the government for public purpose?
(viii) Whether the counter-claimant is entitled to get the decree of declaration that he is entitled to receive compensation in C/W L.A. Case No.C3/Kal/2012?
[17] In the T.S.26 of 2015, the plaintiff side examined himself as PW-1 and also examination two more witnesses as PW-2 and PW-3. Same set of witnesses were examined in T.S.1 (CC) of 2016 as DW-1, DW-2 and DW-3. In the title suit, the defendants side examined total five number of witnesses including himself who are DW-1, DW-2, DW-3, DW-4 and DW-5. The T.S. 1(CC) of 2016 the counter-claimant side examined four numbers of witnesses including himself as PW-1, PW-2, PW-3 and PW-4.
Page 10 of 18Apart from the witnesses, both the parties have exhibited some documentary evidences.
[18] Being aggrieved and dissatisfied, the appellants of T.A. No.1 of 2017 preferred appeal on the ground that the learned trial Court committed errors of law and facts leading to faulty decisions. The learned trial court did not frame proper issues. All issues framed in the suit ought to have been decided in favour of the appellant. The evidence or record were not properly scanned and appreciated by the learned trial court resulting in wrong decision of the suit and counter-claim.
[19] The appellants of T.A. No.01 of 2017 during argument of this case stated that the appellants are the lawful owner and exclusive possessor of the related land and he never sold out the related land to one Kamala Kanta Sinha, father of the defendant No.1 and father-in-law of defendant No.2 by any means or by executing any kind of deed and the plaintiff could learn about the existence of suit deed bearing No.1-779 dated 16.03.1982 of Kailashahar Sub-Register office purportedly executed by the plaintiffs on 29.08.2015 and by collecting certified copy on 31.08.2015 he realized that the sale deed was prepared by executing fraud, mis- representation and false presonation. Thereafter, the present suit was registered on 07.09.2015 which was well within the period of limitation.
[20] The counter-claimants during argument have stated that the defendant No.1 filed a suit before the learned Civil Judge, Jr. Division seeking declaration of title and recovery of possession bearing case No.T.S.23 of 2001. It reveals that late Kamala Kanta Sinha purchased the suit land from Shri Haripada Sinha on the strength of sale deed dated 16.03.1982. But, the plaintiff forcibly occupied a portion of the suit land illegally on 17.05.1992. After filing of the suit bearing No.T.S.23 of 2001, summons was duly issued by defendant No.1 and the said summon was duly received by the defendant No.1 of that suit.
Page 11 of 18[21] As summon was received by the defendant No.1, hence, it is clear that the appellant was having knowledge about that deed after receipt of summons. The defendants‟ side submitted certified copy of case No. T.S.23 of 2001 which was marked as Exbt.E and on perusal of this case record, it reveals that the plaintiff of this suit was Shri Kajal Mani Sinha and defendant No.1 was Haripada Sinha who was the plaintiff of T.S.26 of 2015. The defendant side also filed certified copy of orders passed in case No. T.S.23 of 2001, which was marked as Exbt.D series. On perusal of the orders passed in T.S. 23 of 2001, it is clear that summons upon the defendant No.1 was served personally upon him. On perusal of Exbt. E of the plaint of T.S.23 of 2001, it was clearly mentioned that Kamala Kanta Sinha purchased the land measuring 0.05 acres from Haripada Sinha on the strength of registered kabala No.1-779 dated 16.03.1982. Hence, it is clear from Exbt. D and Exbt. E that the appellants were having clear knowledge about the deed No.1-779 as summons was duly served upon him personally. Hence, the appellants of this case was having clear notice about the registered sale deed No.1-779 dated 16.03.1982.
[22] In the counter-claim, filed by the respondent-defendants of this case, the appellants admitted that the counter-claimant filed case No.T.S.23 of 2001 and the appellants and other appeared in that case and submitted their written statement. Under Article-59 of the Limitation Act, limitation begins to run from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside first become known to him. Under Article-59 of the Limitation Act, 1963, a suit for cancelling or setting aside and instrument or decree is to file within three years of the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside first become known to him.
[23] It is already discussed above that the respondent-plaintiff of this case was having knowledge about the deed itself in the year 2002 and Page 12 of 18 the present suit was filed on 07.09.2015 i.e. after 13 years i.e. beyond the period of limitation. So, it is clear that the suit filed by the respondent- plaintiff is clearly barred under Article-59 of the Limitation Act. The issue whether the counter-claim is barred by res-judicata, we need to discuss Section-11 of the CPC for such clarification. As per Section-11 of the CPC "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court". In my opinion, if the former suit is dismissed without any adjudication of the matter in issue merely on a technical ground, it cannot operate as res-judicata. In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. In my considered opinion, if the former suit was dismissed by the court for default of plaintiff‟s appearance, the decision being not on merits, would not operate as res-judicata in a subsequent suit. On perusal of Exbt. D, it is clear that the suit was dismissed for default of plaintiff. As the earlier suit bearing No. T.S.23 of 2001 was not decided on merits; hence, the counter-claim was not barred by res-judicata.
[24] Regarding point No.2 of T.A. No.1 of 2017, Order-VI Rule-4 says that "4. Particulars to be given where necessary-in all cases in which the party pleading relies on any mis-representation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid particulars (with dates sand items if necessary) shall be stated in the pleadings."
Page 13 of 18[25] Rule-4 requires particular with dates and items to be stated in the pleading in cases of mis-representation, fraud, breach of trust, sillful default or undue influence. Fraud is obtaining of an advantage by unfair or wrongful means. Under this rule where fraud is alleged, necessary particulars should be stated in the pleading. The allegations must be clear, definite, express and specific. It is not enough to allege fraud without stating particulars with dates and items as to such fraud. General allegations, however, strong if unaccompanied by sufficient particulars are not enough and the Court will not take notice."
[26] In the plaint, it has stated that after collecting certified copy of suit deed he could learn that it has been created by exercising fraud, mis- representation and false personification. Also9 analyzing the evidence of the plaintiff side in T.S. 26 of 2015. PW-1 stated same facts as stated by him in his plaint. PW-2 stated in his evidence that he has never seen plaintiff putting signature in Bengali in any paper as he put his signature always in English. But, no such plea was taken by the plaintiff in his evidence. He also stated that the suit deed bearing No.1-779 dated 16.03.1982 is a forged one. He also denied that he ever put signature as a witness in the said deed. Analyzing firstly, the plaint of the plaintiff side it is clear that the plaintiff did not state particulars with dates and items as to fraud. He only made general allegations of fraud unaccompanied by sufficient particulars. The plaintiff side in his evidence also did not state the particulars of fraud specifically.
[27] Now, coming to the evidence adduced by the defendant side, it reveals from the evidence of DW-1 that he stated that the deed writer namely, Shri Satish Chandra Sinha is now about 87 years old and is suffering from short of memory and unable to move from one place to another. He also stated that attesting witnesses namely, Haripada Sinha and Akshay Kumar Sinha are dead. DW-2 in his evidence stated that he came Page 14 of 18 to know from his uncle that he has sold a plot of land to late Kamala Kanta Sinha. DW-3 stated in his evidence that he knew that Haripada Sinha sold a plot of land to Shri Kamala Kanta Sinha. It comes out from the cross- examination of DW-2 that cases filed by DW-2 against plaintiff side. Hence, deposition of DW-2 is not safe to rely as his evidence may be influenced due to previous enmity. Except denial, nothing relevant came in the cross-examination of DW-3 so as to disbelieve him.
[28] High Court of Orissa in Padma Bewa v. Krupasindhu Biswal and Ors, held that the plea of fraud is to be raised in the pleadings by furnishing the particulars as required by Order-VI Rule-4 of the CPC which should be concise but also precise and it is not enough to use the general word such as "fraud".
[29] In the present case on the basis of the sale deed bearing No.1- 779, dated 16.03.1982, finally published khatian bearing No.89 was prepared in the name of the defendant which was marked as Exbt.2 counter-claimants/defendants have also produced the same documents which was marked as Exbt.B (S/O). In cross-suit, the same document was marked as Exbt.1 by the counter-claimants. The plaintiff side has failed to prove that the title deed was prepared fraudulently. The plaintiff also failed to state particulars of fraud with dates and items. It can safely said that the plaintiff has failed to prove that deed No.1-779 was created by exercising fraud, mis-representation and false personation. Hence, the learned trial Court rightly decided issue No.4 of T.S. No.26 of 2015 against the plaintiff side.
[30] It is pertinent to be mentioned herein that PW-1 in his evidence stated that he is a government employee and serving in the police department and taking the opportunity of his absence from Kailashahar, the plaintiff with an ill motive dispossessed him from the suit land on 14.05.1992. He also stated that while the T.S 23 of 2001 was in progress, Page 15 of 18 some village elders proposed for amicable settlement of this case to which he also agreed. He also stated that a „baithak‟ was held in the month of February, 2003 wherein it was decided that the plaintiff will deliver the vacant possession of the suit hut to him and accordingly, he took up possession of the same on 03.03.2003. He also deposed that while he was possessing the suit land with effect from 03.03.2003, the plaintiff again taking the opportunity of his absence from Kailashahar took forcible possession over the suit property on 15.07.2010 in order to grab the L.A. Compensation. Hence, this point is decided in favour of the counter- claimant, the defendants herein.
[31] Title is the sum told of legally recognized rights to the possession and ownership of property. For providing title over a particular immovable property, title deed is one of the most important documents. The plaintiff side in T.S. No. 26 of 2015 submitted certified copy of sale deed bearing No.1-779 dated 16.03.1982 of Kailashahar Sub-Registry Office which was marked as Exbt.1. The defendant side also submitted the same document in certified form which was marked as Exbt.A. Counter- claimant side also submitted Xerox copy of registered sale deed No.1-779 which on comparison with certified copy was marked as Exbt.2. Analyzing this document, it clearly speaks that father of counter-claimant, defendant Kamala Kanta Sinha purchased land measuring 05 satak of land under old plot No.307 and 308 corresponding to RS Plot No.68, 69 and 70 with specific boundary.
[32] As per Section-90 of Evidence Act this document is also admissible because this document is 30 years old. Moreover, on the basis of this sale deed Khatian No.89 was prepared in the name of Kamala Kanta Sinha, the predecessor of counter-claimant/defendant No.1. The counter- claimant/defendant No.1 has proved his right, title and interest over the suit land by the sale deed No.1-779 dated 16.03.1982. The possession of Page 16 of 18 the part of the suit land occupied b y the plaintiff. Hence, both the points are accordingly decided in favour of the counter-claimant/defendantNo.1.
[33] It has already been discussed that the suit of the plaintiff is barred by limitation. It is also discussed that the plaintiff side failed to prove that the registered suit deed bearing No.1-779 dated 16.03.1982 was created fraudulently, mis-representation and false personation. So, the plaintiff is not entitled to get the decree of declaration that the suit deed is illegal, ineffective and not binding upon the plaintiff.
[34] The counter-claimant, defendant in the counter-claim has stated that while the defendant No.1 possessing the suit land, the government of Tripura took decision for making double lane of the Kailashahar-Kumarghat road and a portion of the suit land was acquired by the L.A. Collector, Kailashahar. The plaintiff-cum-defendant of counter claim in his written statement admitted this fact. Exbt.7 which was exhibited by the counter-claimant/defendant is the Form No. DM/LA/KAI/2/2010/1057-1233. On perusal of the same, it reveals that the L.A. Collector issued notice in case No.3/Kai of 2012 to Kamala Kanta Singha., Nidhi Ranjan Singha (occupier) and Tridip Ranjan Singha to receive the amount of award amounting to RS.38,671/-. Hence, it is clear that the part of the suit land was acquired by the government.
[35] It is already been discussed that counter-claimants/defendants are entitled to get the decree for declaration of right, title and interest over the suit land and for recovery of possession of part of suit land. It is also decided in point No.5 that part of the suit land was acquired by the government for public purpose. The counter-claimant side submitted re- enquiry report which was submitted by DCM, Kailashahar to the SDM, Kailashahar which was marked as Exbt.8. It has been clearly mentioned that acquired RS Plot No.70/P of Khatian No.89 of Mouja-Gournagar was under physical possession of Shri Haripada Sinha by way of running of Page 17 of 18 shop. He was the occupier of the land only, but the record belongs to Kamala Kanta Sinha. As it has been decided that the counter-claimants are entitled to get the declaration of right, title and interest over the suit land, so counter-claimants as legal heir of Kamala Kanta Sinha is entitled to get declaration that he is entitled to get compensation in connection with L.A. Case No.3/Kai/2012.
[36] The learned courts below, apart from the legal and factual issues have pointed out that the plaintiffs who are the appellants herein, have not acted diligently and has filed the suit having knowledge about the earlier suit filed in the year 1982. Since from the date of knowledge he supposed to file the suit within a period of three years, now in view of the inordinate delay, the action of the plaintiffs in instituting of the suit is not maintainable. At the threshold the suit is liable to be dismissed and the same is dismissed on one of such grounds. This Court has no hesitation to confirm the orders passed by the lower Courts dismissing the present appeal filed by the appellants on the same ground.
[37] It is a settled legal proposition that as a rule, relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. Ordinarily, the reliefs are drawn on the basis of pleadings. Even in some cases, on the basis of pleadings the court can mould the reliefs. But the foundation of such relief must have its anchor in the pleadings. It is always the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment passed in TA No. 01 of 2017 dated 17.04.2018 by the learned Additional District Judge, Unakoti Kailashahar, needs no interference whatsoever.
[38] Having appraised the records afresh, this Court is of the view that there is no infirmity in the findings arrived at by the learned Page 18 of 18 Additional District Judge, and hence, this Court affirmed the finding of the learned Addl. District Judge. In view of above observations, RSA. No. 17 of 2018 stands dismissed and consequently, RSA. No. 18 of 2018 is also stands dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed.
[39] Draw the decree accordingly and send down the LCRs thereafter.
JUDGE A.Ghosh