Tripura High Court
Smt. Anjali Sarkar vs Shri Bibek Roy on 30 May, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RSA. No. 47 of 2012
C.O. (RSA) No. 02 of 2012
RSA. No. 47 of 2012
1. Smt. Anjali Sarkar
wife of late Dilip Sarkar,
H/No. 64, Indranagar, P.O. Indranagar, P.S. East Agartala, District:
West Tripura, 799006
2. Smt. Rakhi Sarkar,
daughter of late Dilip Sarkar,
wife of Shri Tapas Deb,
Dhaleswar Road No. 16, P.O. Dhaleswar, P.S. East Agartala, District:
West Tripura
3. Shri Dipak Sarkar,
son of late Dilip Sarkar,
H/No. 64, Indranagar, P.O. Indranagar, P.S. East Agartala, District:
West Tripura, 799006
4. Miss Rupali Sarkar,
daughter of late Dilip Sarkar,
H/No. 64, Indranagar, P.O. Indranagar, P.S. East Agartala, District:
West Tripura, 799006
5. Smt. Sonali Sarkar,
wife of Shri Dibakar Naha,
daughter of late Dilip Sarkar,
resident of Kumari Tila, P.O. Abhyanagar, Agartala, P.S. East Agartala,
District: West Tripura, 799005
.........Appellants
-VERSUS-
1. Shri Bibek Roy,
son of late Mahendra Roy,
of Banamalipur, P.O. Agartala, P.S. East Agartala, District: West
Tripura
2. Shri Chandan Kar,
son of late Biraj Ranjan Kar,
resident of Dhaleswar, Road No. 3, P.O. Dhaleswar, P.S. East Agartala,
District: West Tripura
3. Shri Apurba Sarkar,
son of late Abani Sarkar,
resident of Indranagar, P.O. Indranagar, P.S. East Agartala, District:
West Tripura
4. Shri Shankar Kumar Paul,
son of late Sukumar Chandra Paul,
of Chitta Ranjan Road, P.O. Agartala, P.S. East Agartala, District: West
Tripura
5. Shri Kalidas Chakraborty,
son of late Akhil Chandra Chakraborty,
resident of 7, Sitaram Road, Bansdrony, P.S. Jadavpur, District South
24 Parganas, West Bengal
.......Respondents
RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 1 of 16
C.O. (RSA) No. 02 of 2012
1. Shri Bibek Roy, son of late Mahendra Roy, of Banamalipur, P.O. Agartala, P.S. East Agartala, District: West Tripura
2. Shri Chandan Kar, son of late Biraj Ranjan Kar, resident of Dhaleswar, Road No. 3, P.O. Dhaleswar, P.S. East Agartala, District: West Tripura
3. Shri Apurba Sarkar, son of late Abani Sarkar, resident of Indranagar, P.O. Indranagar, P.S. East Agartala, District:
West Tripura
4. Shri Shankar Kumar Paul, son of late Sukumar Chandra Paul, of Chitta Ranjan Road, P.O. Agartala, P.S. East Agartala, District: West Tripura .......Cross Objectors
-VERSUS-
1. Shri Dilip Sarkar, son of late Dwigendra Sarkar, resident of Village & P.O. Indranagar, P.S. East Agartala, District: West Tripura .......Plaintiff-respondent
2. Shri Kalidas Chakraborty, son of late Akhil Chandra Chakraborty, resident of 7, Sitaram Road, Bansdrony, P.S. Jadavpur, District South 24 Parganas, West Bengal .......... Defendant-respondent BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellants and for the LRs of respondent No. 1 in the cross-objection : Mr. A. K. Bhowmik, Sr. Advocate Ms. M. Choudhury, Advocate For the respondents and for the cross-objector : Mr. S. M. Chakraborty, Sr. Advocate Ms. P. Sen, Advocate Date of hearing : 13.01.2017 Date of delivery of judgment and order : 30.05.2017 Whether fit for reporting : YES RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 2 of 16 Judgment and Order Both the appeal and the cross objection thereto respectively being RSA. No. 47 of 2012 [Smt. Anjali Sarkar & Another v. Sri Bibek Roy & Others] and C.O. (RSA) No. 02 of 2012 are taken up together as the appeal and the cross objection emanate from the judgment and order dated 23.07.2012 delivered in Title Appeal No. 41 of 2010 passed by the Additional District Judge, Court No. 5, West Tripura, Agartala.
[2] Both the appeal and the cross objection were admitted by the order dated 27.11.2012 but on different set of substantial questions of law. In RSA. No. 47 of 2012 the following substantial questions of law were formulated for purpose of hearing the said appeal:
(1) Whether the finding of the First Appellate Court in respect of point No. 3 formulated by it, in its judgment is perverse?
(2) Whether the First Appellate Court made out a third case beyond the pleadings of the parties to the suit and whether it is sustainable?
This Court had permitted the appellants to raise any other substantial questions of law at the time of hearing. [3] In the cross objection being C.O(RSA) No. 02 of 2012 the following substantial questions of law were formulated:
(1) Whether the decision of the First Appellate Court in respect of title deed of the cross-objectors is tenable?
(2) Whether the finding of the First Appellate Court that before declaration of adverse title by a competent Court of law, the true owner automatically loses his title in the land is tenable?RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 3 of 16
(3) Whether the finding of the Firs Appellate Court on point No. 2 formulated by that Court is perverse?
The cross-objectors were permitted to raise further substantial question of law at the time of hearing. [4] The essential facts leading to this challenge are common and as such, those are being laid at the outset. The original appellant, namely, Sri Dilip Sarkar has expired during the pendency of this appeal and in his place his L.Rs representing the interest by virtue of the order dated 30.06.2015 delivered in C.M. Appl. No. 57 of 2015 [ in RSA. 47 of 2012] have been substituted. By the original appellant, the suit being T.S. 116 of 2004 was instituted for declaration of title, confirmation of possession and perpetual injunction. It is noted that despite formal order in the cross-objection, LRs were permitted to represent the respondent No. 1.
[5] The case as narrated in the plaint in short is that the suit tank as described in the schedule of the plaint belonged to the defendant No. 1, namely Kalidas Chakraborty, the respondent No. 5 in the appeal. He left Tripura before 1972 and settled in West Bengal. Since the year 1972, the plaintiff-appellant had been possessing the suit tank by growing fish in the tank and enjoying the usufructs of the suit tank.
[6] In the year 1987 the respondent No. 5 sent his attorney and sister to the original plaintiff for vacating the possession. They met the plaintiff on 05.02.1987 when the plaintiff denied the right, title interest the defendant No. 1 and had asserted that he became owner by RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 4 of 16 adverse possession which was more than 12 years and thus the plaintiff acquired the title to the suit tank. Thereafter, there had been no initiative from the said defendant to recover the possession which the plaintiff was seized showing hostility to the true owner i.e. the defendant No. 1.
[7] During the Revisional Survey Operation as commenced in the year 1979, the suit land was again recorded in the name of the defendant No. 1 showing the plaintiff as the forceful occupier since 1987. The plaintiff is the owner of his own homestead land appertaining to the C.S. Plot No. 3097/94441 corresponding to R.S. Plot No. 6299 of Khatian No. 5758 of Mouja Indranagar and the plaintiff has been residing in the said homestead land with his family. [8] The defendant No. 1 has not disputed the said recording but the defendants No. 3 and 4 have expressed that they have purchased he suit tank from the defendant No. 1 and they have the right over the suit tank. The defendants No. 4 and 5 had approached the plaintiff on 05.09.2004 and claimed that they had "some purported documents" from the defendant No. 1 and on such basis they claimed title over the suit tank.
[9] The case of the plaintiff is that he had acquired title by way of adverse possession. According to the plaintiff, on 05.09.2004 the cause for the suit rose when the other defendants, the cross-objectors, had threatened him of dispossession.
RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 5 of 16 [10] The defendants No. 2, 3 and 4, one of the cross-objectors in C.O. (RSA) 02 of 2012, filed a joint written statement and contested the claim of the plaintiff-appellants by asserting that the suit land has been purchased by the defendant No. 4 and one Sankar Kr. Paul from the defendant No. 1 by two registered sale deeds to Sri Sankar Kr. Paul who is the co-owner of the suit tank was not made party in the suit and the suit is accordingly bad for non-joinder of the necessary parties. [11] They however asserted that the defendant No. 1 appointed one Keshab Paul, son of late Sukumar Paul resident of Chitta Ranjan Road, Agartala as the attorney and the said attorney sold the land to the defendant No. 4 and one Sankar Kr. Paul along with other lands by a registered sale deed for and on behalf of the defendant No. 1 and delivered possession thereof to the defendant No. 4 and said Sri Sankar Kr. Paul immediately after making the sale deed. [12] The said defendants have further disclosed that the defendant No. 1 purchased a tract of land measuring 4.50 and he constructed his dwelling house. Subsequently, one part of the said land was occupied by one Narayan Bhattacharjee measuring 0.04 acre within the C.S. Plot No. 3098. The defendant No. 1 instituted T.S. 58 of 1982 in the court of the Sadar Munsiff, Agartala, West Tripura for recovery of possession of the said land by evicting Narayan Bhattacharjee from the occupied land and the suit was decreed on 28.05.1992. RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 6 of 16 [13] Thereafter, the defendant No. 1 through his attorney sold the land measuring 2.44 acres including the suit tank to the defendant No. 4 and one Sankar Kr. Paul by two registered sale deeds bearing Nos. 1-7924 dated 05.09.2003 and 1-8065 dated 09.09.2003 as stated earlier, and delivered possession to the defendant No. 4 and said Sankar Kr. Paul.
[14] The defendant No. 4 has asserted that after purchase of the suit land the defendant No. 4 and his co-sharer Shri Sankar Kr. Paul are in possession of the suit land along with the other lands since the date of purchase openly, peacefully, jointly, without any obstruction from any quarter and by rearing fish in the suit tank on clearing water hyacinth and by enjoying usufruct thereof. According to them, the plaintiff was never in possession of the suit tank and he has no right, title and interest or possession therein and thus, the plaintiff has no right to claim any possessory right over the suit tank and his suit is vexatious, frivolous and without any substance. [15] After recording the evidence, the court of the Civil Judge, (Junior Division) Court No. 1, West Tripura, Agartala returned the finding on the following issues as framed earlier:
1. Whether the suit is maintainable in its present form?
2. Whether the plaintiff has acquired title of the suit land by way of adverse possession?
3. Whether the right, title and interest over the suit land of defendant No. 1 has extinguished prior to purported sale of suit land by defendant No.1?
4. Whether the defendants have any right, title and interest over the suit land?RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 7 of 16
5. Whether the plaintiff is entitled for the reliefs as prayed for?
6. What relief/reliefs the parties are entitled to?
[16] The trial court decreed the suit by declaring that the plaintiff has perfected his title over the suit land [tank] by way of adverse possession and has acquired right and interest upon it and as corollary thereof, the defendants, their men, agents and representatives are perpetually restrained from disturbing with the peaceful possession of the plaintiff over the suit land [tank]. The said judgment and decree was challenged by the defendant- respondents herein in T.A. 41 of 2010.
[17] It appears from the records that said Sankar Kr. Paul was added as the defendant No. 5 by the order dated 06.03.2006 passed in T.S. 116 of 2004. The said judgment dated 29.09.2010 passed by the Civil Judge, Junior Division, Court No. 1, Agartala, West Tripura, was challenged by the defendants No. 2 to 5 by filing an appeal under Section 96 of the CPC in the Court of the District Judge, West Tripura, Agartala being T.A. No. 41 of 2010. The said appeal was however transferred for hearing to the Court of the Addl. District Judge, West Tripura, Agartala Court No. 5. [18] By the judgment and order dated 23.07.2012 the First Appellate Court reversed the judgment dated 29.09.2010. The RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 8 of 16 Appellate Court has dismissed the suit being T.S. No. 116 of 2004 on returning the following finding:
"It is now no longer res-integra that the record of right finally published under Section 43 of the TLR & LR Act, 1960 has it's own statutory presumptive value of correctness unless contrary is proved. But in the present case, the respondent No. 1 had proved only the Khatian (Exhibit-1 series) prepared at the stage of draft publication of settlement operation and finally published Khatian was withheld by him, hence no presumptive value of correctness can be attached with the related khatian No. 5337 under Exhibit-1 series. Thus, Ld. Trial Court erred in relying the comment given in the said khatian showing forceful possession of respondent No. 1 therein and declaring the right, title and interest of the respondent No. 1 by way of adverse possession basing thereupon. The respondent No. 1 thus failed to prove his adverse possession in the suit land in the touch stone of the law discussed above. This point No. 3 is decided in favour of the appellants and against the respondent No. 1. The judgment and decree of Ld. Trial Court thus suffers from infirmity and consequently the same is required to be set aside."
[19] Mr. A. K. Bhowmik, learned senior counsel appearing for the plaintiff-appellants has submitted that the finding as returned by the First Appellate Court (point No. 3) is absolutely perverse inasmuch as the plaintiff-appellants have adequately proved their hostile possession w.e.f. 05.02.1987 when the plaintiff- appellants refused to release the suit tank as demanded by the sister of the respondent No. 5 and his attorney.
[20] Mr. Bhowmik, learned senior counsel has seriously criticized the finding that has been returned by the First Appellate Court that since in the Khatian No. 5334 (Exhibit-1 series) of Mouja Indranagar the name of the original plaintiff was recorded as forceful occupier in the stage of draft publication, presumption under Section 4393) of the TRL & LR Act on the basis of such Khatian can be drawn. Mr. Bhowmik, learned senior counsel has RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 9 of 16 further submitted that the said entry at the column No. 24 of the Khatian No. 5337 cannot be burshed aside in the manner as has been observed in the impugned judgment.
[21] Mr. S. M. Chakraborty, learned senior counsel appearing for the respondents has substantially supported the impugned judgment but since the defendants have filed the cross objection, he has projected, as it appears some reservation about the judgment particularly when the First Appellate Court decided the point No. 2 and the finding that the derivation of an antagonistic title through adverse possession automatically negatives the right to recovery of possession by the real owner which thus, renders the title deed ineffective, unusable and meaningless, despite the deed being in existence.
[22] Having appreciated the contentions raised by the learned counsel appearing for the parties and scrutinized the records, this Court finds that the following 2(two) questions if answered would lead this Court to the just inference:
(a) Whether the finding of the First Appellate Court in respect of the adverse possession on discarding the Khatian at the draft stage is perverse?
(b) Whether the finding that by the derivation of an antagonistic title through adverse possession automatically negatives the right to claim recovery of possession by the real owner which thus, renders the title deed ineffective, unusable and meaningless, despite the deed being in existence is legally tenable?
[23] The suit land is no doubt a tank and its embankment. Claiming the possession over it by rearing fish and has the banks for grazing of his cattle and by growing vegetables on RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 10 of 16 the banks the suit has been instituted. It is an apparent fact that the plaintiff-appellants do not recognize the title of the defendants No. 4 and 5 whereas he has made the defendant No. 5 party on the basis of the written statement filed by the respondents No. 2, 3 and 4.
[24] The defendant No. 4(DW-1) has categorically stated that the certified copy of the sale deed dated 09.09.2003 executed by Kalidas Chakraborty, the defendant No. 1, in favour of Sankar Kr. Paul and another has been filed along with the General Power of Attorney No. 4-00398 dated 20.08.2003. The original of those documents are lying in the Title Suit No. 03 of 2004. In the cross- examination he has admitted that he has not made any prayer for mutation, but he denied the possession of the plaintiff. [25] DW-2, Sri Sailen Debnath, has confirmed the possession of the defendants No. 1, 4 and 5 continuously. DW-3, Sri Sunil Biswas has also confirmed the possession of the defendants No. 1, 4 and 5. In the cross-examination DW-2 has categorically stated that Sri Dilip Sarkar (original plaintiff) resided on the northern side of the suit tank. The southern side of the land is possessed by Apurba Sarkar and Sankar Kr. Paul and the western side as well belongs to Apurba Sarkar and Sankar Kr. Paul and on the eastern side there is road.
[26] DW-4, Sri Swapan Deb has also confirmed the possession of the defendants No. 1, 4 and 5. He has further stated RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 11 of 16 that in the 2003 the attorney of the defendant No. 1, namely, Sri Keshab Paul handed over the possession of the said suit tank to the defendants No. 4 and 5. He has also described the suit tank and the relative location of the plaintiff and the defendants. [27] DW-5 is the attorney of the defendant No. 1, namely Sri Keshab Paul. He has confirmed that by virtue of the power of attorney dated 20.08.2003 he had sold the suit tank to the defendants No. 4 and 5 by two registered sale deeds dated 05.09.2003 and 09.09.2003. On the following day, the possession of the suit tank was handed over to the defendants No. 4 and 5. He has denied the suggestion contrary to what he has stated in the examination-in-chief.
[28] It is to be noted that the sale deed dated 09.09.2003 has been admitted in the evidence as Exhibit-A. The plaintiff has stated that he has been adversely possessing the suit tank measuring 0.50 acres since 1972 and the suit tank is situated adjacent to the southern boundary of his homestead land.
[29] WP-1, the original plaintiff, has stated on oath that on 05.02.1987 the defendant No. 1 sent his attorney and his sister to take back the suit tank but he denied. He has not revealed who was the attorney and what was the name of the sister, while giving the deposition. He has further stated that on 05.09.2004 the defendants threatened him to dispossess.
RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 12 of 16 [30] In the cross examination he has stated as follows:
"My house is situated on the northern side of the suit land. I have been residing in this house from the year 1972. I was an employee of the BSF and I joined the BSF service in the year 1966. I was out of Tripura in connection to my service from the year 1981 to 1988. I also remained outside Tripura from the year 1975 to 1978. Kalidas Chakraborty left Tripura in the year 1970, Kalidas Chakraborty has three other brothers and one sister. Sister of Kalidas Chakraborty resides at Kolkata. My name was recorded in the 24 column of the Khatian that the settlement staff in one survey and on their enquiry I stated that I am in possession of the suit land and the cultivation has been made by me. It is not a fact that the suit land has never been possessed by me and is not at present also in my possession. I do not know whether the defendants No. 4 and 5 purchased the suit land or not from Kalidas Chakraborty but the defendants No. 4 and 5 threatened me being purchaser of the suit land. There is no one as attorney as stated in para-4 of my examination-in- chief byway of affidavit."
[31] One Abdul Hannan deposed as PW-2. He has stated that the plaintiff since 1972 has been possessing the suit land. He has stated that in the year 1987 the defendant No. 1 wanted to take back the possession from the plaintiff but he failed for the resistance provided by original the plaintiff. In the cross examination he has stated that there is no dispute among Sri Dilip Sarkar, Bibek Roy and Sankar Kr. Paul. On the basis of such evidence, the suit was decreed in favour of the plaintiff by the trial court. According to this Court, Abdul Hannan, the independent witness, as adduced by the plaintiff did not support that the defendants No. 4 and 5 ever threatened the plaintiff and as such, there was no apparent cause for the plaintiff to come to the Court. Moreover, it would be apparent from the cross-examination that plaintiff was staying away from his place of residence since 1972 to 1988 and as such, the story that he has been possessing the suit tank in continuum is hard to believe. RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 13 of 16 [32] So far the finding as to the presumption under Section 43(3) of the TLR & LR Act, 1960 as returned by the First Appellate Court, this Court is of the view that it is the case of the plaintiff that on the basis of his statement made to the Settlement Officer, the said entry has been made. The said entry has been recorded in the column 24 of the Khatian in the stage of draft publication. In view of the statement made by the plaintiff in the Court while deposing as PW-1, the said entry cannot be treated as very sound evidentiary material. Moreover, presumption under Section 43(3) of the TLR & LR Act, 1960 can only be drawn when the Khatian is finally published inasmuch as the Khatian is finally published following the phases as prescribed by the statute. The Khatian is published in the draft stage inviting objection and thereafter it is finally published. If any objection of substance is raised by any interested person, the entry made in the Khatian published in the draft stage is removed by order. Unless the finally published Khatian is produced before the Court, presumption as to the correctness of the entry cannot be taken and should not be taken.
[33] Moreover, the original plaintiff has pleaded that since 1972 he was possessing the suit tank by rearing fish and growing vegetables etc., on its embankment. During that period, most of the time he was away from that place. Demonstration of hostile possession as claimed to have been shown on 05.02.1987 to RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 14 of 16 the attorney or to the sister of the defendant No. 1 does not appear probable, even he could not disclose the name of those two persons. Above all, the demonstration was not to the true owner. Even on the subsequent date i.e. 05.09.2004 when he was threatened of dispossession, has also not been proved following the standard as stated earlier.
[34] This Court thus does not find any infirmity in the finding of the First Appellate Court. However, the way the First Appellate Court has observed that after expiry of limitation as prescribed under Article 65 of the Limitation Act, 1963 the title gets extinguished, it may leave a space of less predictability. It may also imply extinguishment and perfection of title is automatic and no judicial finding in this regard is required.
[35] Needless to say that by Section 3 of the Limitation Act, it has been provided that the subject to the provisions contained in Section 4 -24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, even if the limitation has not been set up as a defence. Section 27 of the Limitation Act provides as under:
"Extinguishment of right to property at the determination of the period hereby limited to any person for institution a suit for possession of any property, his right to such property shall be extinguished."
[36] In Krishnamurthy S. Setlur v. O. V. Narasimha Setty reported in (2007) 3 SCC 569 where the Apex Court has observed as under:
RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 15 of 16
" the plaintiff must plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner. He has also to show hostile title and communicate it to the real owner.
[37] Though by adverse possession, the right to recovery on the basis of title may extinguish after the limitation as prescribed under Article 65 of the Limitation Act i.e. 12 years but this fact shall be required to be proved judicially, otherwise by prescription even if the title is matured in favour of the adverse possessor, but that will not get any legal recognition.
In view of the what has been observed above, the appeal being RSA. No. 47 of 2012 stands dismissed and the C.O. (RSA) 02 of 2012 is dismissed subject to the observation made in respect to the extinction of the title. Draw the decree accordingly.
Thereafter send down the LCRs.
JUDGE A.Ghosh RSA. 47 of 2012 A/W C.O.(RSA)02 of 2012 Page 16 of 16