Tripura High Court
Sri Harekrishna Roy Chowdhury vs Sri Debdas Roy Chowdhury on 13 January, 2017
Equivalent citations: AIR 2017 TRIPURA 24
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RSA No.22 of 2012
Sri Harekrishna Roy Chowdhury,
son of late Dhirendra Ch. Roy Chowdhury,
resident of Masjid Road, Agartala,
P.S. East Agartala, District : Tripura West
............Appellant
- Vs -
1. Sri Debdas Roy Chowdhury,
son of late Dhirendra Ch. Roy Chowdhury,
resident of Masjid Road, Agartala,
P.S. East Agartala, District : Tripura West
................Plaintiff-Respondent
2. Sri Ganesh Roy Chowdhury, son of late Dhirendra Ch. Roy Chowdhury, resident of Masjid Road, Agartala, P.S. East Agartala, District : Tripura West ............Defendant No. 2-Respondent BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. D. Deb, Advocate For the respondents : Mr. A.K. Bhowmik, Sr. Advocate Ms. A. Banik, Advocate Date of hearing : 27.09.2016 Date of delivery of : 13.01.2017 Judgment and order Whether fit for reporting : YES Judgment and Order This is an appeal against the judgment of affirmance dated 10.02.2012 delivered in T.A. No. 45 of 2011 by the Page 1 of 19 RSA 22 of 2012 Additional District Judge, Court No. 5, West Tripura, Agartala, by the defendant No.1.
2. Having proposed, this court formulated two sets of substantial questions of law, one on 06.06.2012 and another on 12.09.2016.
By the order dated 06.06.2012 the following substantial question of law was initially formulated for hearing the appeal:
"Whether the courts below committed error by failing to decide the question of limitation, after framing issue on the said point?"
Subsequently, when the hearing commenced, at the insistence of the appellant, by the order dated 12.09.2016, the following substantial question of law was formulated in addition to the earlier substantial of law:
"Whether the impugned judgment has been passed without considering the evidence of compromise decree of partition [Exhibit-2] and the hand sketch map of solenama [Exhibit-3] or the judgment has been passed solely on the report of the Survey Commission?"
3. For having the prospective of the challenge against the concurrent finding of fact, the relevant fact is required to be introduced briefly at the outset. The plaintiff and the defendants in the suit being T.S. No. 65 of 2005 are full-blood brothers and they inherited the paternal property comprised in Agartala township No. 15 which has been described in the Schedule-1 of the plaint . Page 2 of 19 RSA 22 of 2012
4. There is no dispute that the said property was mutually partitioned by the registered partition deed No. 1-4851 dated 06.04.1970 and they had taken possession of the land identified for each of the brothers, the plaintiff and the defendants. The said land was mutated in the year 1975. Since there was some disputes between the plaintiff and the defendants in the year 1986, a suit being T.S. 68 of 1986 was instituted but the said suit was finally come to an end, based on a compromise struck between those three brothers. A compromised decree with a map delineating their share more categorically was passed in accordance with law. Even in this regard, there is no dispute between the plaintiff and the defendants. The case of the plaintiff is that the defendant No.1, the appellant herein, constructed a residential house on his plot in the year 1990 encroaching upon two inch of land of the common pathway and the said building was subsequently converted into a shopping complex in the name and style of Rajdhani Market. Thereafter the defendant No.1 constructed first floor and the second floor on the existing building. The defendant No.1, while constructing his building, did not leave any space towards the western side. As a result, he could not carry out plastering work in the western side of his building. It is also stated that there was a vacant space between the building of the plaintiff and the defendant No.1 and the said vacant place was being used by the plaintiff and his tenant in the Page 3 of 19 RSA 22 of 2012 ground floor of the two storied building for their ingress and egress.
5. The defendant No.1 never raised any dispute over the said land of the plaintiff as it is always under the possession of the plaintiff. In the year 2002, suddenly the defendant No.1 started claiming the said vacant land, owned and possessed by the plaintiff. The defendant No.1 also bought some building materials, brick and sand etc to construct the boundary wall by force, but due to timely resistance he could not succeed. The plaintiff has further pleaded that the defendant No.1 by a registered Deed No. 1-6219 dated 06.08.1979 sold to the plaintiff an area of land measuring 2 kranta and while making the construction, the defendant No.1 encroached the portion of the land which had been sold to the plaintiff. The plaintiff many a times requested the defendant No.1 to vacate the said land but it fell on deaf ear. The plaintiff has further pleaded that after the solenama was executed, the defendant No.1, by the registered sale deed, sold to the plaintiff a piece land measuring 2 kranta, as stated earlier. Thereafter, the defendant No.1 had started the construction of his shopping mall and while making such construction, the defendant No.1 encroached a portion of the plaintiff's land which was purchased from the defendant No.1. The plaintiff's request for vacating the land was not acted upon by the defendant No.1. the plaintiff, in the context, prayed for decree declaring the right, title Page 4 of 19 RSA 22 of 2012 and interest in his favour including the confirmation of possession in respect of the schedule-D as provided in the plaint. The plaintiff has further asked for a decree of recovery of khash possession of the land described in Schedule-E by removing all obstruction and hindrance. Further a mandatory injunction has been asked for directing the defendant No.1 to remove his un-authorized construction of his building which has been constructed on the ejmali path marked as 4B of the hand sketch map made part of the decree in T.S. 68/86 encroaching 2 ft. in breadth as described in the Schedule-F. As consequential and in furtherance of peaceful possession, the decree for permanent injunction has also been sought for, in respect of the Schedule-B of the land as described in the plaint. On the contrary, the defendant No.1, the appellant by filing a written statement has raised that the suit is miserably barred by estoppels, waiver, acquiescence and limitation.
6. That apart, he has stated that what the plaintiff has stated that the landed property as described in the Schedule-1 of the plaint measuring 12 gandas 2 karas and 2 krantas and 6½ dhurs is not a correct disposition of fact. According to him, the total land would be 12 gandas 2 karas and 9½ dhurs, meaning a little bit higher than what has been described in the Schedule-1.
7. In para-13 of the written statement, the defendant No.1, the appellant herein, has made the following statement : Page 5 of 19
RSA 22 of 2012 "13. That the further averments of the plaintiff that in between the land of the plaintiff and the answering Defendant there is a vacant space of about 5 ft. in width and 84 ft. 6 inches in length and the same is the land of the plaintiff and is under his possession is strongly denied."
8. In the para-14 of the written statement, the defendant No.1 has stated that the vacant land in between the land of the plaintiff and the answering defendant is 5" ft. 7" inches in width from North to the approximate mid part of the road length of 44'ft. Thereafter the width of the said vacant land from said mid part to Southern boundary covering a length of 40'ft. 6"inches is about 2(two) ft. The statement of the plaintiff that is 5'ft. spreading all through is a concocted statement and the plaintiff knows it very well as the building of the Defendant No.1, standing in the said southern part, is 29'ft broad. The other statement of the plaintiff that he used the said vacant land since 1970 has been denied by the defendant No.1. The defendant No.1 has categorically asserted that he is the owner of 4 ft. 3 inch of land in width of the vacant space laying in between the house of the plaintiff and the defendant No.1. For safety and security, the defendant No.1 has tried to construct a boundary wall along with his boundary line strictly in accordance with the demarcation following the solenama which has been accepted in the Title Suit No. 68 of 1986. Thus, the resistance offered by the plaintiff in respect of the said construction was not legal but that was so done in order to harass and prejudice the defendant No.1.
Page 6 of 19 RSA 22 of 2012
9. The defendant No.1, the appellant in this appeal, has categorically stated in Para-18 of the written statement that he has not encroached upon any land of the plaintiff, rather the plaintiff has encroached upon some land of the answering Defendant at the western side of the building. As a result of which, he has filed a suit being T.S. No. 16 of 2002.
10. For purpose of deciding the controversy, the trial court [Civil Judge, Junior Division, Court No.2, Agartala, West Tripura] has framed the following issues :
"i) Whether the suit is legally maintainable?
ii) Whether plaintiff is the sole owner of the suit land as per Solanama and decree of T.S. 68/86?
iii) Whether the plaintiff have legally mutated in his name and in physical possession ?
iv) Whether the plaintiff have purchased land of schedule E and the after defendant No. 1 encroached thereon?
v) Whether the plaintiff and defendants are joint owners of common passage of schedule F as per decree of T.S. 68/86?
vi) Whether the plaintiff is entitled to decree as prayed for?
vii) What relief/reliefs the parties are entitled to?"
After recording the evidence for the parties, the trial court has observed as under :
"10. A survey commission has been appointed by the court through its order dated 26/11/2009 and in which the court has directed to the survey commission to measure plot No. 2/A (of the map attached) for ascertaining whether there has been any encroachment of 4" of land as claimed by the plaintiff and survey commission has filed his report. On that report Ld. Counsel of the defendant filed written objection and by Page 7 of 19 RSA 22 of 2012 an order dated 4-12-2010 the court after hearing both parties rejected the objection petition against the survey commission report. In that report, the survey commissioner categorically stated that 4 ½ "
encroachment is found in the purchased land of the Plaintiff. The Survey commissioner in his report at page- 6 para-12 stated that "So it found as per physical observation on the suit land that the defendant No.1 has encroached 4-1/2" (space in width) towards the western side by exceeding the obtainable land in the common boundary pillar of the plaintiff which was constructed as per on written condition condition agreement by them. So the quantum of the illegal possessed area of land by the defendant No.1 has been estimated 32'-04 x 4-1/2" = 12 sft."
11) Survey commissioner during the time of survey taken as a fixed point a wall prepared by late Makhan lal Saha which is also shown in the map of the sulenama and decree in TS 68/86. Hence, the fixed point for conducting survey in the western side is rightly taken as PW-2 in examination in chief by affidavit who is legal heirs of Sri Makhan lal Saha stated that the said wall has been constructed by his father some time in 1959 and that statement is very much intact in his cross examination. Moreover, it is the fixed point which is also taken in the sulenama decree along with map, i.e., Ext.3.
12) Section 75 of CPC empowers the court to issue commission subject to such condition and limitation as prescribed on matters mentioned in the aforesaid sections. Under Order 26 Rule 9 provides for the issuance of commission for local investigation and the procedure is given in Order 26 Rule 10. Order 26 Rule 10(2) clearly stated that the report of commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record, but the court or with the permission of the court any of the parties of suit may examine the commissioner personally in the open court touching any of the matter referred to him or mentioned in his report or as to his report or as to the manner in which he has made the investigation. Again Rule 230 to 238 of the Civil Code Rules & Orders of Gauhati High Court further regulate the desired procedure to be adopted in issuance of commission for local investigation.
13) During the argument learned counsel of defendant No. 1 raised serious question on the report of survey commission and submitted that the report is not clear and the fixed point taken for that purpose is a vague one. Ld. Counsel also submitted the decision of ld. Apex Court reported in AIR 1954 SC 526 and another case reported in AIR 1997 Cal 59, AIR 1998 Orissa 117. However, the above reported cases have no relevancy in the present suit. So far as the fixed point taken by the commissioner is concerned, the fixed point which is the wall prepared by late Makhan lal Saha has been also Page 8 of 19 RSA 22 of 2012 shown in Ext. 3 which is a part of the decree passed in T.S. 68/86. Hence, the objection raised by the defendant in regard to the fixed point cannot be sustained.
14) The Privy Council in the case of Chandan Mull Inder Kumar & Others, appellants v. Chiman lal Giridhar Parekh stated that " It has been laid down that interference with the result of long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a court to act as an expert and to overrule the elaborate report of commissioner whose integrity and carefulness is unquestioned, whose careful and laborious execution of his staff was proved by his report and who had not blindly adopted the assertion of either party." The above decision of Privy counsel is still holds good and the same has been followed by the courts of India time and again.
15) In the present case, the survey commissioner was appointed and there has been no allegation against the survey commissioner regarding his integrity and carefulness and the survey commissioner was from the approved list maintained by the district Court. Thus, I do not find any ground to interfere with the findings of the survey commissioner. In the report of Survey commissioner it is categorically written that the defendant No. 1 has encroached 4 ½ " (space in width) towards the western side by exceeding the obtainable lands in the common boundary pillar of the plaintiff and the said 4 ½ " runs from north to south a land measuring 32'-04", i.e.,12 sq. feet.
From the above facts I find that the defendant No.1 has encroached 4 ½ " land from the purchased land of the Plaintiff which becomes a part of Plot No. 2/A (of the map attached). Again, Plaintiff in his plaint and also in the schedule-E of the plaint stated that only an area of 4" in width and 32'-4" in length of land has been encroached by the defendant. Now, it is settled position of law that the court cannot go beyond the prayer portion of the plaintiff. Hence, I am of the opinion that the defendant No.1 has encroached an area of land measuring 4" in width and 32'-4" in length from the purchased land of the plaintiff which becomes a part of Plot No. 2/A (of the map attached). Accordingly, issue No. (iv) is decided in positive."
[Emphasis added]
11. It has been further observed by the trial court that the plaintiff in his plaint has stated that the defendant No.1 in Plot No.1/B [of the map attached to the Solenama] has constructed his Page 9 of 19 RSA 22 of 2012 building in the year 1990 and encroaching upon 2' of land of the common path of plot No. 4/B (of the map attached) but as PW-1 in the examination-in-chief by way of affidavit [see Order XVIII, Rule 4, CPC] has stated that the defendant No.1 has constructed 2 storied building in the year 1970 encroaching upon 2' of land of the common path of plot No. 4/B but in his cross examination as PW 1 he stated that the defendant has constructed his building before him whereas in the plaint he stated that he started construction of his building in plot No. 2/B in the year 1986. Even if, that is taken as the year of construction by the defendant No.1 in plot No. 1/B, in 1986 or 1990 then also the claim is barred by Limitation Act. As the present suit is filed in the year 2005 and the limitation in this regard as provided Article 110 of the Limitation Act, 1963 is 12 years. Thus this claim of the plaintiff is barred by limitation. Accordingly, this claim cannot be entertained.
12. But surprisingly, the trial court has observed in the judgment dated 25.08.2011 as follows :
"In this issue it is declared that the Plaintiff has right, title and interest over the vacant land which is existed in the eastern part of the Plot No. 2/B (of the map attached) and it a part and parcel of the land of plot No. 2/B running from 30' east to west and 84'-06" from north to south and defendant is liable to be evicted from the said land with all his belongings. Thus issue No. (vi) & (vii) is decided in positive."
Having held thus, all the issues were decided infavour of the plaintiff observing as under :
Page 10 of 19
RSA 22 of 2012 "In the result, the suit of the plaintiff is partly decreed on contest with cost with a declaration that plaintiff has right, title and interest on the land mentioned in the Schedule D of the plaint which is a part of the Schedule- BB of the plaint, i.e., plot No.2B (of the map attached) and defendant No.1 or his agent, men other worker is permanently restrained from making or raising boundary wall on above stated land schedule and defendant No.1 is also directed to remove all his belongings from the encroached area of land measuring 4 inch in width and 32 ft and 4 inch in length from the purchased land of the plaintiff which becomes a part of plot No. 2A (of the map attached) and deliver the said land to the plaintiff by removing all sorts of construction thereof within two months from the date of decree and defendant No.1 and their men agents, worker also directed not to interfere with the peaceful possession of the plaintiff over the suit land."
13. Being aggrieved by the said judgment, the appellant herein preferred an appeal under Section 96 of the CPC being T.A. 45 of 2011 in the court of the District Judge, West Tripura, Agartala which was in the course of time was transferred to the court of the Additional District Judge [Court No.5], West Tripura, Agartala for hearing. By the impugned judgment dated 10.02.2012, the first appellate court has observed as under :
"8.2 The compromise decree is relied by all the parties and as such the appellant is estopped from challenging anything against any term of said compromise decree as the matter is now set at rest amongst the parties. As per said decree, the respondent No.1 got the 'D' Schedule land and the Report of Survey Commissioner does not reflect that he was dispossessed from said land. Khatian No. 30614 of mouja-Agartala (Exbt.4) also shows that the Respondent No.1 is the Riyat in said land and there is no mention of any other occupier of said plot in the said Khatian. The Appellant also does not say that he has been possessing the said plot. So, Ld. Trial Court was justified in granting right, title, interest and possession of the Respondent No.1 in Schedule-D land and restraining the Appellant from raising any wall within said land. The point No.1 is decided accordingly in favour of the Respondent No.1 so far as point No.2 is concerned, the Survey Commissioner found Appellant to have encroached 32'4" in length 4'4.5" i.e. 0.0033 acre Page 11 of 19 RSA 22 of 2012 (about 144 square feet of R.S. Plot No. 6621 corresponding to C.S. Plot No. 12957) i.e. a little bit excess of 'E' - Schedule land. Though Ld. Counsel for the Appellant raised a plea of limitation stating that the so called encroachment is of the year 1970, the suit was time barred. But on perusal of record, I find nothing to the effect that the Appellant took any plea of adverse possession over the Schedule-E land. Though the Plaintiff-Respondent did not specifically mentioned the date of dispossession, but unless the Appellant is being able to prove his adverse possession, the suit cannot be treated as time barred, how so long ever the period of encroachment may be.
III) The survey commissioner while doing the commission work took the fixed point as boundary wall of western side neighbor of Plaintiff-Respondent namely late Makhan lal Saha. In the plaint, the Respondent No.1 asserted that the western side boundary wall was constructed by Late Makhan Lal Saha in the year 1959 i.e. long before passing of said compromise decree, but this fact was denied by the Appellant stating that said boundary wall was constructed by legal heirs of Late Makhan Lal Saha some time after 1986 AD. The compromise decree was passed on 01.12.1986. Though the son of late Makhan Lal Saha was examined in this suit as P.W. 2 and he deposed that said wall was constructed by his father in the year 1959 and his such testimony also could not be shaken in his cross examination, however, when the said western boundary wall was bit disputed, the Survey Commissioner could take any other point as fixed point to avoid any sort of dispute. The appellant filed his objection before Ld. Trial Court against said Commissioner's report and has also challenged the same in this appeal too alleging that he was at Kolkata when commission was done and that Commissioner committed mistake by taking the said wall as fixed point. At this stage, it is not possible to opine whether Survey Commissioner committed any mistake by taking that very wall as fixed point or not.
However, for safety's shake, this matter can be made further confirmed by doing another survey commission. But if at this stage again this suit is remanded back for causing survey commission, it will result in unnecessary dragging of case. As there is nothing on record to render the present Survey Commissioner's report as incorrect straight way, so basing upon said report a condition is annexed to the decree by modifying it as already been passed in favour of Plaintiff-Respondent. The judgment and decree of Ld. Trial Court thus suffer no infirmity to interfere with; however, a condition is necessary to be imposed that at the time of execution of the decree for recovery of possession Schedule-E land, the Executing Corut shall again cause survey commission of said land by a Commissioner under relevant provisions of Order XXVI, rule 18A of Civil Procedure Code, who will at the time of such commission, fix another undisputed point apart from said western side boundary wall of Late Page 12 of 19 RSA 22 of 2012 Makhan Saha or of his son as the case may be, as fixed point and in no way the decree will be executed to the bigger extent than that of Schedule-E of the plaint. But if the Survey Commissioner find lesser portion of dispossession in the practical field than the area mentioned in Schedule-E, the same will be executed accordingly be evicting the Appellant therefrom. The Point No.2 is answered accordingly."
[Emphasis added]
14. Based on the said finding, the first appellate court passed a conditional decree of recovery. In the decree, the right, title and interest and possession of the plaintiff, in the Schedule-D land has been declared and confirmed and the appellant has been restrained from constructing any boundary wall within Schedule-D land. The respondent No.1, the plaintiff was allowed to recover the khash possession of the Schedule-E land but not more land than what has been described in the Schedule-E shall be recovered from the defendant No.1. In this regard, it may be mentioned that over the Schedule-E land, the defendant No.1 has not constructed his building.
15. Mr. D. Deb, learned counsel appearing for the appellant has submitted that the suit instituted by the respondent No.1, the plaintiff is barred by limitation, inasmuch as the appellate court has returned a concurrent finding by the judgment dated 25.08.2011, the relevant part of which is as under :
"As the present suit is filed in the year 2005 and the limitation is in this regard as provided under Article 110 of the Limitation Act is 12 years. Thus this claim of plaintiff is barred by limitation no condonation petition has been filed in this regard and accordingly, this claim cannot be entertained. "Page 13 of 19
RSA 22 of 2012 Despite that the appellate court by the impugned judgment has observed as follows :
"Though the learned counsel appearing for the appellants raised a plea of limitation stated that so called encroachment as of the year 1970, the suit was time-barred but on perusal of record I find nothing to this fact that the appellant was in a adverse possession over the Schedule-E land though the plaintiff respondent did not specifically mentioned the date of dispossession, but unless the appellant proves his adverse possession, the suit cannot be treated as time-barred however long every period of encroachment may be."
16. According to Mr. Deb, learned counsel appearing for the appellant that even the Survey Commissioner's report is unreliable inasmuch as the fixed point was determined in absence of the defendant No.1. Moreover, the fixed point which is the wall, constructed by one Makhan Lal Saha cannot be held as the undisputed point, inasmuch as the said fixed point did not exist when the deed of partition was executed between the parties.
17. From the other side Mr. A.K. Bhowmik, learned senior counsel appearing for the plaintiff-respondent No.1 has submitted that a piece of land was purchased by the plaintiff from the defendant No.1 on execution of a registered sale Deed No. 1-6219 dated 06.08.1979 measuring 2 kranta, which is the part of Schedule-D land. Schedule-D land is comprised in C.S. Plot No. 12954(P) of Khatian No. 30614 of Agartala Town sheet No.15 including an area of land measuring 5 ft. in width from west to east from the building of the plaintiff and 84 ft. and 6 inch in Page 14 of 19 RSA 22 of 2012 length running from north to south which is distinctly different from the land described in Schedule-E inasmuch as Schedule-E is comprised in C.S. Plot No. 12957(P) of Khatian No. 4789 of Agartala sheet No.15 having an area of land 32 ft. 4 inch in length from north to south and 4 inch in width running from east to west, butted and bounded by north to east with the boundary. The land described in the Schedule-F is comprised in C.S. plot No. 12962(P) of khatian No. 4789, 4791, 4793 of the front portion of the building of the defendant No.1, constructed covering 2 ft. in width of the plot No. 4B of the hand sketch map in Case No. 68/TS/86. According to the plaintiff, Schedule-E is the part of the Schedule-D land and that is the reason why no declaration of right, title and interest has been sought in respect of the Schedule-E land. Schedule-F land is the part of the 4B common path as mentioned in the solenama sketch map, part of the compromise decree in T.S. 68/1996 and according to the plaintiff, out of the said common path the defendant No.1 has encroached 2 ft., while constructing the building.
18. Mr. Bhowmik, learned senior counsel even though has categorically stated the surveyor's report is quite reliable and there is no infirmity in the judgment of the trial court or in the judgment of affirmance as returned by the first appellate court. There cannot be any amount of dispute that land described in the Schedule-D land was the land of the plaintiff and therefore the Page 15 of 19 RSA 22 of 2012 plaintiff has every right to get the declaration of the title and the confirmation of the possession.
19. In reply, Mr. Deb, learned counsel has stated that 4/B ejmali road, according to the sketch map is a part of the compromise decree, is 3 ft. wide and there is no dispute that the said pathway is a common pathway to be used by the plaintiff and the defendants. It is also not in dispute that the appointed Survey Commissioner in absence of the defendant No.1 carried out the survey on 28.04.2010. Thereafter on 25.06.2010, he filed the report to the court observing inter alia :
"14.......... With reference to above that the defendant No.2 had constructed his building (Shop) Plot No. 3/A by leaving 2' (in width) by breadth 15' - 07" from the South end of his constructed building situated to the Western side of the plot No. 4/A. During my Survey operation it is seen clearly that the actual breadth of the common path (Passage) under plot No. 4/B running from East to West is found 3' (feet in width) instead of having the breadth of the said common path 5' (in width) along with the left area of land 2' (in width) by the defendant No.2 as per seen according to physical position of the field.
So it is clearly observed that the defendant No.1 had constructed his one storied building plot No.1/B by extending and encroaching the said common path by breaking the aforesaid terms and conditions of the Registered Partition Deed and the solenama signed by the Plaintiff, the defendants and the Learned Advocate involved in this very said case as per evidence belongs to Map of the Hand-Sketch is enclosed herewith in order to prove the matter stated above."
It has been further observed that:
"17. Under the above circumstances it is clearly seen during my survey operation in this said suit land that 4½" (inches) encroachment is found in the purchased land measuring area .0033 (acres) say 144 ft belongs to Hal R.S. Plot No. 6621 as part of the C.S. Plot No. 12957 Page 16 of 19 RSA 22 of 2012 (Part) under Old Khatian No. 4789 and even the quantum of 2' (in width) by 15'-07" (breadth) the second encroachment is found in the plot No. 4/B which was shown as common path (Passage) in the solenama running from East to West of which length and breadth is 88'-06" x 3' (feet) situated to the middle portion of the suit land belongs to Revenue Mouja Agartala sheet No.15 for the present."
This surveyor's report has been accepted by the courts below despite serious objection raised by the appellant which was filed on 09.09.2010.
20. Mr. A.K. Bhowmik, learned senior counsel has submitted that so far the Schedule-A land is concerned, this is a land which the plaintiff received as a part of the land marked by 2/A including the purchased land of 2 kranta. The defendant No.1, the appellant herein cannot have any sort of right over that land Even he could not lay any evidence to show that he had the adverse right over the said land.
21. Mr. D. Deb, learned counsel has finally stated that the Survey Commissioner's report cannot be relied on as that was totally created by non-appreciation of the relevant records. He has succinctly brought to the notice the hand sketch map, to show that in the hand sketch map, which is the part of the compromise decree the common path 4/B is 3 ft wide only, not 5 ft. as recorded by the said Survey Commissioner and according to the said survey report, the Survey Commissioner found 3 ft. in the said road, but, thereafter it has been observed that the said common pathway shown as 4/B was 5 ft. wide and hence 2 ft. are Page 17 of 19 RSA 22 of 2012 covered by the 4/B ejmali path has been encroached by the defendant No.1 at the time of constructing his building on the land marked at 1/A in the hand sketch map.
22. Having regard to the submissions made by the learned counsel for the parties, this court finds that so far the land shown in Schedule-E is concerned, the appellate court was absolutely right that since there is no adverse claim over the said land 2 kranta of land, as purchased by the plaintiff from the defendant No.1, there cannot be any question of limitation to scuttle the suit on the ground of being barred by limitation. But the decree shall only be confined to part of the land as marked by 2/A in the hand- sketched map, and the land described in the sale Deed No. 1-6219 dated 06.08.1979. Hence, there shall be no interference in respect of the said part of the decree. There shall be no interference with the decree of perpetual injunction against the appellant from interfering with the land as described in the Schedule-E of the plaint. However this court finds that the surveyor's report is unreliable for returning the finding in respect of the encroachment of Schedule-F land of the plaint by the appellant. Had the surveyor properly noticed the width of the common pathway of the Schedule 4/B he would have come to the conclusion that the said common path (4/B) has been marked as 3 ft. in width, not 5 ft. in width, and as such surveyor's inference that since the ejmali path at the time of survey was 3 ft. in width, 2 ft. along with the land Page 18 of 19 RSA 22 of 2012 marked by 1/A has been encroached by the defendant No.1, the appellant is entirely unsustainable for its absurdity. As such the decree passed by both the courts below in respect of the Schedule-F land of the plaint is set aside and as consequence thereof, the decree of mandatory injunction for removing the construction from the Schedule-F land is also interfered with and set aside.
In the result, this appeal stands partly allowed. Draw the decree accordingly.
Thereafter send down the records.
JUDGE Sabyasachi. B Page 19 of 19 RSA 22 of 2012