Tripura High Court
Shri Sankar Debnath vs Shri Gopal Chandra Debnath on 8 February, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
RSA 31 OF 2019
Shri Sankar Debnath,
Son of Late Banamali Debnath, resident of
Dhaleswar Road No.2, Agartala, Police Station-East Agartala,
Post Office-Agartala-799007, Dist-West Tripura.
---- Appellant.
Versus
1. Shri Gopal Chandra Debnath,
S/o late Ramani Mohan Debnath, C/o Studio Rajlaxmi, Abhoynagar,
(Near Buddha Mandir), Opposite to Radha Nagar Bus Stand,
Police Station-East Agartala, Post Office-Agartala,
PIN-799005, Dist-West Tripura.
2. Agartala Municipal Corporation
(Erstwhile Agartala Municipal Council),
Represented by the Municipal Commissioner,
Having its office at-
Agartala City Centre Complex,
Police Station-West Agartala,
Post Office-Agartala,-799001,
Dist-West Tripura.
3. The Municipal Commissioner
(Erstwhile Chief Executive Officer)
Agartala Municipal Corporation
Agartala City Centre,
Police Station-West Agartala,
Post Office-Agartala,-799001,
Dist-West Tripura.
4. Tripura Hawkers' Union, represented by its Secretary,
Hawkers' Corner, Police Station-West Agartala,
Post Office-Agartala- 799001,
Dist-West Tripura.
---Respondents.
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For Appellant (s) : Mr. P. Chakraborty, Advocate.
Mr. H. Laskar, Advocate.
For Respondent (s) : Mr. S.M.Chakraborty, Sr.Advocate.
Mrs. P. Chakraborty, Advocate.
Date of hearing &
delivery of Judgment and order : 08.02.2022
Whether fit for reporting : Yes
HON'BLE MR JUSTICE ARINDAM LODH
Judgment & Order (Oral)
This is a second appeal under Section 100 of the Code of
Civil Procedure (for short, CPC) against the judgment and decree dated
20.02.2019, passed by learned Additional District Judge, West Tripura,
Agartala [Court No.2] in connection with Title Appeal No.23 of 2016
whereby and whereunder learned appellate court has set aside and quashed
the judgment and decree dated 26.03.2016, passed by learned Civil Judge,
(Jr. Division), Court No.2, West Tripura, Agartala in Title Suit No.18 of
2014 filed by one Gopal Chandra Debnath as plaintiff against the Agartala
Municipal Corporation and others as defendants.
2. The facts of the case as projected by learned appellate court
may be reproduced here-in-below, in extenso:
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"2. The gist of the appeal filed by the Plaintiff-appellant in their plaint
in short is that the appellant as plaintiff filed one suit before the Learned Civil
Judge (Jr. Div), Agartala stating that there is a well known market namely,
Hawker's Corner situated to the southern side of the H.G. Basak Road and in
the year 1992, the said market was gutted in fire. The defendant-respondent
No. 1 entered into an agreement with defendant-respondent No. 3 on
08.01.1993 for the purpose of reconstruction of the said market and as per the
said agreement, defendant-respondent No. 3 was permitted to construct 79
stalls in Block-A, 49 stalls in Block-B and 06 stalls in Block-C and the
President of defendant-respondent No. 3 was entrusted by its members to
manage the affairs of the said construction and it was further stipulated in the
said agreement that the stalls in excess of the existing/permitted members
shall be handed over to the defendant respondent No. 1. On 03.02.1994
another agreement was entered between defendant respondent No. 1 and 3
stipulating that the selection of the additional stalls to the shopkeeper shall be
decided in consultation with defendant-respondent No. 1 before construction
was taken up and in pursuance of the said agreement, it was decided that the
plaintiff-appellant will get a stall in Block-B on payment of Rs. 3,75,000/- by
installments to the defendant-respondent No. 3 and accordingly, receipt of the
said payment was duly given in favour of the plaintiff-appellant and the
defendant-respondent No. 3 issued membership to the plaintiff-appellant and
on 17.08.1996 a room was allotted to the plaintiff-appellant and the plaintiff-
appellant took possession and started a business by the name and style as "Raj
Laxmi Bastralaya". Thereafter, plaintiff-appellant brought Banamali Debnath
who was his brother-in-law to assist him in the business and taking this
advantage, Banamali Debnath filed a suit in the Court of Civil Judge (Jr. Div),
Court No-1, Agartala stating that he was granted membership of the Hawker's
Union on 18.05.1995 and one shop in Block-B on the ground floor in the
Hawker's Corner which was originally occupied by the plaintiff-appellant and
the suit was numbered as TS 56 of 1997 and challenging that suit the present
appellant preferred appeal in the court of Learned District judge which was
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allowed by the judgment dated 30.06.2001. After that the predecessor in
interest of the of the respondent-defendant No. 4 preferred a second appeal
before the Hon'ble High Court which was numbered as RSA 28 of 2001 and
during the pendency of the second appeal the respondent No. 4 filed an
amendment petition in the Month of November, 2012 stating that during the
pendency of the second appeal suit premise was allotted to the respondent No.
4 by an order of allotment No. 87-VI/TS/AMC/05/706 dated 21.10.2005 and
Touji No. 165/2005 was created in his favour. But the said petition was not
pressed by the respondent No. 4 and lastly another petition was filed on
17.06.2013 to produce additional evidence in the second appeal and along
with the petition a photocopy of Touji was enclosed. The appellant after
receiving the said copy of petition only could know that the Touji was created
in favour of respondent No. 4 but the respondent No. 4 ultimately did not press
the appeal and it was disposed of being not pressed on 27.07.2013.
3. The defendant respondent No. 4 contested the suit filing a written
statement denying the assertions of the plaintiff appellant and further took the
plea that the suit was not maintainable, there was no cause of action to file the
suit, the suit is bad for defect of parties and also the suit is barred by estoppel,
waiver and acquiescence and barred by the provision of Section 34 of SR Act.
It was further asserted by the respondent No. 4 that Touji was granted by
Municipal Authority on the basis of possession which was confirmed by
Learned Trial Court in TS 56 of 1997 and the father of the answering
respondent No. 4 was in possession of the suit premise since 18.05.1995 by
running its business in the name and style as "Raj Laxmi Bastralaya" and said
Banamali Debnath expired on 06.02.2005 and after his death the respondent
No. 4 has been running the said business till today. It was also submitted by
the answering respondent No. 4 that the appellant plaintiff was ousted
therefrom, but the appellant did not take any attempt during last 19 years to
recover possession of suit premise and as such the appellant had no right to
challenge the legality of the Touji.
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4. The defendant respondent No. 3 before the Learned Court below filed
WS stating that it had no specific and definite information regarding the
contentions of the plaintiff appellant and the statements are matter of records
which were required to be proved by the Appellant-plaintiff by supporting
documents. The suit also proceeded exparte vide order dated 22.08.2014
against respondent-defendant Nos. 1 and 2 as they did not contest the suit
before the Learned Court below."
3. During the proceeding of the suit, following issues were
framed by learned trial court:-
(i) Whether the present suit is maintainable?
(ii) Whether on 17.08.1996 the plaintiff was allotted the suit shop by
the defendant No. 1 and the plaintiff started his business there in the
name of "Rajlaxmi Bastrayalaya"? If so,
(iii) Whether the plaintiff brought Banamali Debnath, the predecessor
of the defendant No. 4 to assist him in his business?
(iv) Whether Banamali Debnath had any right, title or interest over
the suit shop premises named and styled as "Rajlaxmi Bastralaya?
(v) Whether the allotment of the suit shop premises named and styled
as "Rajlaxmi Bastralaya" vide allotment No. 87-VI-TS/AMC/05/706,
dated 21.10.2005 and creation of Touji No. 165 of 2005 in favour of
the defendant No. 4 was illegal, void and inoperative?
(vi) Whether the plaintiff is entitled to the decree as prayed for?
4. Evidences were recorded by the trial court. In order to
establish his case, the plaintiff had adduced evidence as PW-1. He
introduced 15 documents [Exbt.1 to Exbt.49].
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On the other hand, in support of the pleadings made in the
written statement, the contesting defendant no.4 had adduced 2(two)
witnesses including him. The defendant no.3 i.e. the representative of
Hawkers' Union also had adduced evidence. The defendant no.4
introduced as many as 9 (nine) documents which were marked as Exbt.A-1
to Exbt.A-9.
5. The appellate court having heard arguments advanced by
learned counsels appearing for the parties set aside the judgment and
decree passed by learned trial court as aforestated and decreed the suit in
favour of the plaintiff as under:-
"15. In the result the appeal filed by the plaintiff-appellant is
hereby allowed on contest with costs in favour of the Plaintiff-
appellant. The judgment dated 26.03.2016 passed by the Learned
Court below is hereby set aside. The order of allotment vide No.87-
VI/TS/AMC/05/706 dated 21.10.2005 and Touji vide No. 165/2005
dated 21.10.2005created in favour of respondent-defendant No. 4 is
declared to be illegal, inoperative and not binding upon the plaintiff-
appellant and accordingly, the same is hereby cancelled. The
respondent-defendant Nos. 1 & 2 be asked to create a fresh Touji in
favour of the plaintiff-appellant at an earliest. The respondent-
defendant No. 4 is asked to restore possession of the suit premise to
the plaintiff-appellant within a period of three months from the date
of judgment failing which the plaintiff-appellant shall be at liberty to
recover the same by due process of law. But the Plaintiff-appellant is
not entitled to get any decree of permanent injunction as prayed for
in the plaint."
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6. Hence, this second appeal before this Court.
7. At the time of admission of the appeal, the following
substantial question of law has been formulated?
Whether the Civil court can pass a consequential
mandatory injunction without declaring the legal character
of the plaintiff in a suit for declaration of title and
consequential relief?
8. Bearing in mind the aforesaid substantial question of law, I
shall proceed to decide the instant appeal.
9. I have heard Mr. P. Chakraborty, learned counsel appearing
for the appellant-defendant [here-in-after referred to as defendant no.4] as
well as Mr. S.M. Chakraborty, learned Sr. counsel assisted by Mrs. P.
Chakraborty, learned counsel appearing for the respondent no.1-plaintiff
[here-in-after referred to as the plaintiff].
10. The plaintiff here-in in the plaint has sought for following
reliefs:-
"It is, therefore most humbly prayed that this learned
court may be pleased to:-
i. Pass decree declaring that the order of allotment vide
No.87-VI/TS/AMC/05/706 dated 21-10-2005 and Tauji
No.165/05 dated 21-10-2005 issued in the name of defendant
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No.4 are illegal, void, violative of the principles of natural
justice and therefore, liable to be cancelled;
ii. Pass decree declaring that the plaintiff was/is
entitled to retain/the possession of premises covered by Tauji
No.165/05 at Hawkers' Corner in which he carried out the
business in the name and style "Rakjlaxmi bastralaya".
iii. Pass decree cancelling the order of allotment and
the order of Tauji as mentioned in prayer No.(i) above so
given in the name of the defendant No.4;
iv. Pass decree of mandatory injunction directing the
defendant No.1 and 2 to create Tauji and issue order of
allotment for the premises in the Hawkers' Corner in which
the plaintiff was carrying out his cloth business in the name
and style Rajlaxmi Bastralaya directing the defendant No.4 to
vacate the said premises for which Tauji has been created
and allotment order has been issued illegally;
v. Pass order of perpetual injunction restraining the
defendant Nos. 1 and 2 not to create any Tauji in future for
the same premises in the name of the defendant No.4 and the
defendant No.4 from disturbing the plaintiff in carrying out
his cloth business in the said premises under the name and
style Rajlaxmi Bastralaya:
vi. Any other order or orders as this learned court
deems fit and proper may kindly be passed;
vii. Cost of the suit may be ordered in favour of the
plaintiff;
And for this act of kindness the plaintiff, as in duty
bound shall ever pray."
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11. From the facts as stated here-in-above, it appears that except
defendant no.4, none of the parties, i.e. the Agartala Municipal
Corporation [defendant nos. 1 & 2] and the Hawkers' Union [defendant
no.3] did not contest the suit by filing written statement, but, during the
course of recording evidence one of the representatives defendant no.3,
namely, Rakesh Pal had adduced evidence as DW-2.
12. It is stated in the plaint that the Agartala Municipal
Corporation (the then Municipal Council) had issued Touji and trade
license in favour of the defendant no.4 most illegally which is void, ab
initio and is liable to be cancelled without taking into consideration that
the suit shop at Hawkers' Corner market was allotted to the plaintiff in the
year 1992 and out of his possession trade license also was issued in favour
of him till 1999. During that period, the entire Hawkers' Corner market
was completely gutted and thereafter, new construction was made. It
appears from the plaint that the plaintiff was the allottee and having trade
license in the name and style of 'Rajlaxmi Bastralaya'. The trade license
shows that the business of 'Rajlaxmi Bastralaya' was owned and run by
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the plaintiff as proprietor. In other words, the plaintiff was the actual
possessor under an allotment and having trade license issued in favour of
him against the suit shop and he was running the business under the name
and style of 'Rajlaxmi Bastralaya' from the said suit shop.
13. I have perused the findings arrived at by learned trial court
[Civil Judge, Jr. Division] while dismissing the suit of the plaintiff;
however, some of the findings are relevant, which are as under:-
" Issue No.(i)
.......
On perusal of Exbt.48 as exhibited by the plaintiff side, it is found that in the Notice dated 18-08- 2013, the receipt acknowledgement dated 19-08-2013 vide Sl.No.4912 of the Agartala Municipal Council is there.
Issue No.(ii) Here, we have to decide whether on 17-08-1996, the plaintiff was allotted the suit shop by the defendant No.1 and the plaintiff started his business there in the name of "Rajlaxmi Bastralaya"? If so, In support of his claim, the plaintiff did not adduce any allotment order issued in his name, but two nos. of trade licenses issued by the Agartala Municipality for the year 1994-95 to 97- 98 and 1998-99 issued in his name and which were marked as Exbt.42 and 43 are found.
11Again, the plaintiff submitted that the Hawkers' Corner market was gutted down in the year 1992 and thereafter an agreement was entered between the Agartala Municipal Council and the Tripura Hawker's Union for reconstruction of the said market and for getting a stall in Block-B after the said reconstruction works, a payment of Rs.3,75,000/- by installments to the defendant no.3 was made and receipt acknowledging the said payment was duly given in four (sic) of the plaintiff, which were marked as Exbt.1 to 4.
.... .... ...
The defendant no.4 also admitted during cross-
examination the fact that previously the shop in the name and style of "Rajlaxmi Bastralaya" was allotted in the name of the plaintiff.
So, if we consider the case of the plaintiff applying the standard of preponderance of probability based on the two nos. of trade licenses issued by the Agartala Municipality for the year 1994-95 to 97-98 and 1998-99 issued in his name and which were marked as Ext.42 and 43 and based on the admission of the defendant no.4 in the cross-examination, we find that the case of the plaintiff-regarding the allotment of the suit shop by the defendant no.1 and the plaintiff starting his business there in the name of Rajlaxmi Bastralaya is highly probable.
Thus, I am of the considered view that the plaintiff is successful in proving that the plaintiff was allotted the suit shop by the defendant no.1 and the plaintiff started his business there in the name of "Rajlaxmi Bastralaya".
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Thus, issue No.(2) I decided in affirmative.
14. While deciding the issue no.(3) & (4), the learned trial Judge held thus:-
"....Now, though the defendant no.4 admitted during cross-examination the fact that previously, the shop in the name and style of "Rajlaxmi Bastralaya"
was allotted in the name of the plaintiff, on perusal of the document regarding the cancellation of membership which was exhibited as Exbt.47 by the plaintiff and which was issued to Banamali Debnath by the then President of the Tripura Hawker's Union, it is found that the suit stall was allotted to Gopal Chandra Debnath by the Tripura Hawker's Union in consultation with the Agartala Municipal Council and that thereafter an agreement between Gopal Chandra Debnath and Banamali Debnath was entered into whereby Gopal Chandra Debnath, the plaintiff of the instant case, permitted Banamali Debnath to take temporary membership of the Tripura Hawker's Union for running the business of garments under the name and style "M/s. Rajlaxmi Bastralaya" and that the said agreement was terminated and because of the said reason that the membership of Banamali Debnath was cancelled."
15. Thereafter, learned trial Judge had observed in his findings that since Agartala Municipal Corporation had issued Touji and thus allotted the suit shop in favour of defendant no.4 in the year 2005 vide No.165/2005, dated 21.10.2005, he became the rightful possessor of the suit shop and dismissed the suit of the plaintiff. 13
16. It is pertinent to mention here that before institution of the present suit by plaintiff, the defendant no.4 had instituted a suit for declaration of right, title and interest over the suit shop in the name and style of "Rajlaxmi Bastralaya". That suit was registered as TS 56/1997. The learned trial court decreed the suit. The plaintiff of the present suit preferred first appeal, which was allowed setting aside of the judgment and decree passed by the learned trial court. Against that, the defendant no.4, i.e. the plaintiff of TS 56/1997 had preferred second appeal. In the second appeal, the defendant no.4 being the appellant-plaintiff had filed an application for adducing additional evidence under Order XLI, Rule 27 of CPC intending to introduce the document allotting Touji in favour of defendant no.4. However, he prayed for withdrawal of the second appeal which was allowed on the ground that a new cause of action had arisen in view of granting of Touji in favour of the defendant no.4 which was allowed with liberty to file afresh. However, the defendant no.4 has not instituted any suit, though, the earlier suit/appeal was withdrawn at his instance. Contrary thereto, the defendant of the earlier suit i.e. TS 56/1997 instituted the present suit as plaintiff praying the reliefs as stated in the opening paragraphs of this judgment.
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17. While hearing the first appeal, learned Addl. District Judge had taken into consideration the reasons assigned by learned trial court to dismiss the suit of the plaintiff. Learned trial Judge had dismissed the suit of the plaintiff on the ground that though Touji was granted in favour of defendant no.4 in the year 2005. The plaintiff did not raise his grievance against such allotment during those so many years and further, according to learned trial Judge the business under "Rajlaxmi Bastralaya" is being run by the defendant no.4. Having kept those findings of learned trial Judge in mind, learned first appellate court re-appreciated the evidence and came to his own findings in the manner as under:-
"....was also not properly appreciated by the Learned Court below because from the evidence on record it appears that the present appellant could know about the creation of Touji from the case which was pending before the Hon'ble High Court vide No.RSA 28 of 2001. So prior to that he had no scope to gather any information about the disputed Touji and further more as the case was pending in different forums, so naturally there was no scope on his part to apply for any Touji during pendency of cases and since the creation of Touji in favour of respondent No.4 was not within his knowledge. So naturally it was also not possible on his part to file any objection for cancellation of Touji to the respective Authority which Learned Court below has failed to consider in the suit and came to a wrong conclusion that the respondent No.4 acquired right, title and interest over the suit premises on the basis of Touji."15
18. As I have said earlier, that though the suit of the defendant no.4 i.e. TS 56/97 was decreed by learned trial court, but, was dismissed by learned first appellate court. Before learned first appellate court the earlier suit was registered as TA 04/2000 and the judgment was passed on 30.06.2001. The learned Additional District Judge deciding the present suit had extracted relevant portion of the findings passed by the learned first appellate court in TA 04/2000, which is as under:-
"It is clear that the defendant no.3 (present plaintiff) was ousted from the suit premises. There might be certain things behind the screen which the parties did not bring on record. It is between the plaintiff and the defendant No.3 as to who belonged the business and capital of Rajlaxmi Bastralaya. To that extent no such proper evidence adduced by the parties. But the decision of the Ld. Trial court that Rajlaxmi Bastralaya belonged to the plaintiff is based on no proper evidence. Rather on that score the evidence of the defendant No.3 which is supported by Hawkers Union and Agartala Municipality is cogent and carry better weight."
19. Necessary to mention herein that in the above extracted paragraph plaintiff means the defendant no.4 of the present suit and defendant no.3 means the plaintiff of the present suit. 16
20. I have noticed that while re-appreciating the evidence and deciding the issue no.3, the learned Additional District Judge came to a finding that -
"Now in respect of issue Nos.(iii) Learned Court below discussed the evidence on record and after discussing the evidence on record came to the finding that the plaintiff- appellant could not show any documentary evidence before the Learned Court that he engaged Banamali Debnath, i.e., the predecessor of the Defendant-respondent No.4 to assist him in his business and as such decided the issue in negative against the present appellant which in my considered view was not proper because from the evidence on record and specifically the admission of the respondent No.4 during his cross-examination in respect of possession of the plaintiff- appellant over the suit premises and also after going through the Exhibit 46 (3 sheets) which remains unrebutted by the contesting respondent No.4 and furthermore from the evidence of DW 2 who also supported the case of the plaintiff- appellant, it appears to me that the plaintiff-appellant brought the father of respondent No.4 to his suit premises for the time being which Learned Court below has failed to appreciate properly and thus committed error in deciding the said issue against the plaintiff-appellant."17
21. I have given my thoughtful consideration to the findings of the learned first appellate court while reversing the judgment and decree passed by learned trial court. For convenience, I have given a look at Exbt.47. In my opinion, this Exbt.47 which is the document relating to cancellation of membership of defendant no.4 is relevant to decide the instant appeal. It will be useful to reproduce the entire contents of Exbt.47 here-in-below:-
"BY REGISTERD POST/HAND SERVICE Ref. No. THU/.../97-98/289.
To Shri Banamali Debnath, Son of late Hemanta Mohan Debnath, Krishnanagar, Nutan Palli, Agartala, West Tripura.
Sub: Cancellation of Membership.
Sir, I am directed to inform you that the Tripura Hawkers Union has considered your prayer for issuance of a duplicate membership. While considering the said matter the Tripura Hawkers Union also considered one objection filed by Shri Gopal Chandra Debnath wherein he stated that he is the actual owner of the disputed shop namely Rajlaxmi Bastralaya, situated in Block-B of the Hawkers Corner, Hariganga Basak Road, Agartala.
After receipt of the said objection, the Tripura Hawkers Union afforded opportunity of personal hearing to Shri Banamali Debnath and Shri Gopal Chandra Debnath and heard some other persons for inquiring into the real state of affairs. Despite repeated demands, you, Shri Banamali Debnath, son of late Hemanta Mohan Debnath could not show any paper by which it could be established that the objector, Shri Gopal Chandra Debnath has transferred the said shop in your favour. On the contrary it has been established from the papers maintained by the Tripura Hawkers Union that the said 18 objector, Shri Gopal Chandra Debnath, son of late Ramani Mohan Debnath, Krishnagar, Nutan Palli, Agartala, West Tripura has been allotted the room in consultation with the Agartala Municipal Council.
Moreover, it has been established that by way of agreement the said Gopal Chandra Debnath permitted you to take temporary membership of running the business of garments etc. under the same name and style of M/S-Rajlaxmi Bastralaya. It may be noted here that previously the membership against the said shop stood in the name of Shri Gopal Chandra Debnath.
Said Gopal Chandra Debnath has categorically stated that he has terminated the agreement and as such the temporary membership as given to you be cancelled and his membership be restored. A person who has no right to carry on any business in the Hawkers Corner has no right to be a member of the Tripura Hawkers Union. Since we have found that you have been given the temporary membership on the consent of Shri Gopal Chandra Debnath and since the said consent is withdrawn by Shri Gopal Chandra Debnath by his objection dated 04.09.1996 your said membership is liable to be cancelled.
Despite various opportunities given to you to show that there had been lawful transfer of the shop with permission of the Agartala Municipal Council or you have any agreement with said Gopal Chandra Debnath giving you a temporary right to possess for the purpose of running the said shop you could not show a bit of paper or instrument.
In the circumstances after careful examination of the whole matter, Tripura Hawkers Union has decided that:
(i) Membership of Shri Banamali Debnath, son of late Hemanta Mohan Debnath, resident of Krishnanagar, Nutan Palli, Agartala, West Tripura is liable to be cancelled and hence is cancelled.
(ii) The membership of Shri Gopal Chandra Debnath son of late Ramani Mohand Debnath, resident of Krishnanagar, Nutan Palli, Agartala, West Tripura is liable to be restored and hence is restored.
These decisions will come into operation with immediate effect. It is further decided that Shri Gopal Chandra Debnath shall clear all dues to Tripura Hawkers Union within a period of 15 (fifteen) days from the date of receipt of the copy of this letter. 19
Yours sincerely, For Tripura Hawkers Union Sd/-
(Anil Bhattacharjee) President, Tripura Hawkers Union."
22. On summation of the contents of Exbt.47, it becomes apparent that the plaintiff of the instant suit was the actual allottee in whose favour trade license was also issued in regard to the suit shop. It is also apparent that on his consent, defendant no.4 was given temporary membership to run the business of 'Rajlaxmi Bastralaya'. It makes aptly clear that the plaintiff was the owner of 'Rajlaxmi Bastralaya' having a legitimate right to possess the suit shop. The defendant no.4 was show caused on repeated occasions to appear in person and explain his stand before the Union, but, he preferred not to appear the reason of which was best known to him. But, obviously, to this court, it gives an adverse inference against him. Question is why he did not appear before the Union, had he been the actual owner of 'Rajlaxmi Bastralaya'? Lastly, the Union held that the plaintiff was the rightful possessor of the suit shop and used to run the business under the name and style of 'Rajlaxmi Bastralaya' at the instance of the Hawkers' Union as well as with the consent of Agarala Municipal Corporation. The Hawkers' Union that used to manage the day to day affairs of all the shops of the market under it had cancelled the 20 prayer of defendant no.4 to renew his membership and ultimately, the membership given to Sri Banamali Debnath i.e. the defendant no.4 was cancelled. Simultaneously, the membership of Gopal Chandra Debnath, the plaintiff herein was restored.
23. So, from the above findings as arrived at by learned Additional District Judge as well as having perused Exbt.47, the legal character of plaintiff that he was rightful owner of "Rajlaxmi Bastralaya"
and rightful possessor of the suit shop has been well established. Another striking feature is that it is the specific case of the defendant no.4 that Touji No.165/05 was allotted to him in the year 2005. The earlier suit TS 56/97 was proceeding during that period. The question is, why the defendant no.4 did not bring it to the record and only he brought it to the notice of the court during second appeal arising out of TS 56/97.
Surprisingly, the defendant no.4 stated that he came to know about the allotment of Touji in favour of him only in the year 2013 and then and then he filed an application for adducing additional evidence in the year 2013.
But, this plea of defendant no.4 is hard to digest by this court. Hence, this submission is repelled.21
24. On overall consideration of the evidences and the substantial question of law, it comes to fore that the findings of learned trial court that Exbt. 1 to Exbt.4 aptly proves that the plaintiff was the initial possessor and allottee of the suit shop has not been denied by defendant no.4 since he did not prefer any cross-appeal or cross-objection against this particular finding regarding the nature and character of possession of the plaintiff over the suit shop. Needless to say, the defendant no.4 has virtually admitted the rightful possession of the plaintiff over the suit shop as well as the business under the name and style "Rajlaxmi Bastralaya".
25. In furtherance thereof, when the initial possession of the plaintiff over the suit shop remains un-rebutted being confirmed by the defendant no.4 himself, my considered view, the authorities of Agartala Municipal Corporation ought to have given an opportunity to the plaintiff, the admitted previous allottee and possessor of the suit shop under Rule 8 of Agartala Municipal Touji Regulation, 2007 before allotment of Touji in favour of defendant no.4.
Rule 8(a) of Agartala Municipal Touji Regulation, 2007 provides that if the activities of the holder of a shop are found to be illegal, then, Municipal authority has the right to evict him issuing 15 days prior 22 notice upon such holder/possessor of the shop for hearing. Rule 8(a) & (b) may be reproduced hereunder for convenience:-
"8.a) In any activities of the touji holder in the bazaar, commercial place or any other place are considered to be dangerous, harmful, objectionable & illegal, in that case concerned touji holder shall be given 15 days notice for hearing & if the complaint is proved then touji will be cancelled & the touji holder will be expelled from the market.
b) Within the 7 days of receipt of such cancellation order of touji, appeal may be made to the chairperson/Municipal Administrator for reviewing the cancellation order of the said touji. In such case order of the chairperson/Municipal Administrator shall be treated as final."
As I said, it is apparent that no such notice was given to the plaintiff. Even no cancellation order has been brought on record by the defendants. As such, the allotment of touji in faovur of the defendant no.4 was made in contravention with the provision of Rule 8(a) of Touji Rules. On this score also, the Touji No.165/2005 under allotment no.87- VI/TS/AMC/05/706 dated 21.10.2005 deserves to be cancelled.
26. Having observed thus, in my opinion, the learned trial Judge has committed an error in abruptly coming to a finding that since Touji was allotted in favour of the defendant no.4 in the year 2005, he became 23 the owner of the suit shop as well as the business under the name and style 'Rajlaxmi Bastralaya'.
27. In my opinion, the findings arrived at by learned first appellate court regarding ownership of the business and rightful possessor of the suit shop is more reasonable and appears to be probable. A civil suit is to be decided on the doctrine of preponderance of probability. Thus, I am unable to come to a different finding than that of the finding of learned first appellate court. Accordingly, the substantial question of law is accordingly answered.
Mr. P. Chakraborty, learned counsel appearing for the appellant submits that there is no authority of the civil court to cancel the Touji allotted by Agartala Municipal Corporation. According to me, this submission has no merit because civil court being vested with wider jurisdiction has got enough power to decide and declare the nature and character of the suit property as well as its rightful owner and possessor. In furtherance thereof, learned counsel for the appellant has failed to show any such provision in the Touji Rules, 2007 stipulating any bar to the exercise of jurisdiction of the Civil Court in this regard. There is no express or implied bar.
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28. In the result, the judgment and decree passed by learned first appellate court is hereby upheld and affirmed.
29. It appears that Agartala Municipal Corporation did not contest the suit despite receipt of summons. Presumption of non-appearance is that they have gone through the contents of the plaint and preferred to remain silent and abstained from participating in the suit. That means there is nothing to controvert the averments made in the plaint by the plaintiff and against defendant nos. 2 and 3 (Agartala Municipal Corporation) and in that case, all of such averments/allegations shall be taken to be admitted by the defendant nos. 2 and 3 in terms of the provision of Order VIII, Rule 5 of the Code of Civil Procedure,1908.
In the light of above discussion, the Touji No.165/2005 granted in favour of the defendant no.4, Sri Banamali Debnath under allotment no.87-VI/TS/AMC/05/706, dated 21.10.2005, is hereby cancelled being declared as void, abinito and accordingly, Agartala Municipal Corporation [defendant nos. 2 and 3] is directed by way of mandatory injunction to hand over the possession of the suit shop in favour of the plaintiff within a period of 30 days from the date of receipt of the copy of this judgment and decree.
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30. Prepare the decree accordingly.
31. The appeal stands dismissed. Pending application, if any, shall also stands disposed.
JUDGE