Tripura High Court
Sri Tapan Kumar Deb vs Shri Radha Ranjan Paul on 21 February, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
RSA 41 of 2018
Sri Tapan Kumar Deb
alias Sri Shilan Kumar Deb
son of Shri Sailendra Chandra Deb,
Of Ramnagar, P.S. - Panisagar,
North Tripura District.
-----Appellant(s)
Versus
1. Shri Radha Ranjan Paul
son of Late Ramesh Chandra Paul,
of Ramnagar (Janata College),
P.S. - Panisagar, Norht Tripura District.
2. (a) Smt. Jayanti Rani Paul
wife of Late Rama Kanta Paul,
resident of Ramnagar (Janata College),
P.S. - Panisagar, North Tripura District.
(b) Sri Raj Paul (Minor)
son of Late Rama Kanta Paul,
(c) Sri Rintu Paul (Minor)
son of Late Rama Kanta Paul,
All minors are represented by his natural guardian mother
namely Smt. Jayanti Rani Paul,
All are residents of Ramnagar (Janata College),
P.S. - Panisagar, North Tripura District.
3. Smt. Chaturi Singha
wife of Shri Banamali Singha,
of Bilbari, P.S. - Patherkandi,
District - Karimganj.
4. Sri Chitta Singha alias Singh
son of late Ramkrishna Singha,
of Chirakuti (Choudhury Para),
P.S. - Kailashahar, Unokoti, Tripura District.
5. (a) Sri Birendra Das
son of Late Bipin Chandra Das,
(b) Sri Nagendra Kumar Das
son of Late Bipin Chandra Das,
(c) Sri Rabindra Kumar Das
Page 2 of 15
son of Late Bipin Chandra Das,
All are residents of Village and P.O. - Deocharra,
P.S. - Panisagar, Dharmanagar, North Tripura.
-----Respondent(s)
For Appellant(s) : Mr. S. Bhattacharjee, Adv.
For Respondent(s) : Mr. S. Lodh, Adv.
Date of hearing : 17.02.2022
Date of pronouncement : 21.02.2022
Whether fit for reporting : Yes
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
This is an appeal under Section 100 read with Order XXII Rule 1 read with order XLI Rule 1 of the CPC against the judgment dated 09.02.2018 and Decree passed on 20.02.2018 in Title Appeal No.18 of 2012 by the Learned District Judge, North Tripura, Dharmanagar upholding the Judgment dated 28.06.2012 and Decree the dated 02.07.2012 passed in Title Suit No.24 of 2006 passed by the Civil Judge, Jr. Division, Dharmanagar, North Tripura dismissing the suit of the appellant.
[2] For the sake of brevity the parties are referred to as in the title suit. The brief fact of the plaintiff's case is that the plaintiff is the owner and possessor of the landed property measuring about 12 sataks under Khatian No.113 pertaining to present C/S plot No.400 under Mouja and T.K-Ramnagar, Dharmanagar as described in the schedule of the plaint as the plaintiff purchased the aforesaid landed property from one Chaturi Singh through registered sale deed No.1-1848 dated 12.07.05 and since then he has been possessing the said land. It is also Page 3 of 15 mentioned in the plaint that the said landed property was in the possession of Bipin Chandra Das being the permissive possessor under the said Chaturi Singh and one Ruhini Singh against monthly tenant of Rs.50/- for starting a business. It is also pertinent to mention that Chaturi Singh (pro-defendant No.1) of the suit is the owner and possessor of the property measuring about 0.62 acre under khatian No.113 Hal khatian No.105 along with her co-owner Ruhini Singh and the said Ruhini Singh died long back leaving his only son namely Chitta Singh (pro-defendant No.2). Thereafter pro-defendant No.2 left the place since long and the suit land along with other portion of the land came under the absolute ownership of Chaturi Singh and as per the mutual settlement between Chaturi Singh, Ruhini Singh and Chitta Singh, Chaturi Singh became the owner and possessor of the landed property and being the owner he sold out the suit land to the plaintiff. The defendant No.1 on 15.04.1997 took lease of the hut against Rs.100/- from said Chaturi Singh and has been staying there with a condition that he would vacate the said land measuring 12 sataks as and when asked. The plaintiff purchased the land measuring 12 sataks from Chaturi Singh through the registered deed and within the knowledge of the defendant and became the owner and possessor of the landed property against valuable consideration and thereafter the plaintiff applied for mutation but due to non-availability of ROR which has been send to Agartala for computerization, the petition for mutation is pending for disposal. On 01.08.05 the plaintiff requested the Page 4 of 15 defendants to vacant the premises under the possession but the defendant refused to vacant the same and told the plaintiff that he may move before the Court if he so desires. The defendant also told to the plaintiff that he will not pay anything against this possession as earlier because he does not take the plaintiff as owner so the plaintiff finding no other alternative means filed the present case with a prayer for granting decree for declaration that the plaintiff have right, title and interest over the suit land described in the schedule of the plaint for recovery of khas possession of the suit land by evicting the defendants from the suit land by removing all the obstacles created by the defendant if any and also along with the costs of the suit. [3] On the other hand, the defendants contested the suit by filing a written statement denying all the allegations of the plaintiff in the plaint and also stating inter alia that the proforma defendant No.5 was the owner and possessor of the land measuring 0.20 acre appertaining to R.S Plot no.399 corresponding to CS Plot No.415 under khatian no.127 of Mouja and Tehsil -Ramnagar, Revenue Circle and Sub-Division- Dharmanagar. The proforma defendant No.5 sold out the land measuring 0.02 acre of principal defendant No.1 and 2 through registered sale deed bearing No.1-2429 dated 20.05.1985 and after that the principal defendant no.1 and 2 started living jointly by constructing the home stead thereon. The suit land measuring 0.12 acre described in the schedule of the plaint is situated adjacent south of the aforesaid .20 acre purchased land of the principal defendant and the Page 5 of 15 predecessors of proforma defendant No. 3 and 4 were the owners of the said land measuring 0.12 acre as per the schedule of the plaint. The proforma defendant No.3 is married and living at Patharkandi, Assam and the proforma defendant No.4 is also residing at Kailashahar since his birth. So, the proforma defendant No. 3 and 4 never possessed the suit land and the suit land was lying vacant. The principal defendant No. 1 on 01.01.1992 finding the suit land interest of the owner i.e. proforma defendant No.3 and 4 and the principal defendant No 1 and 2 has been possessing the suit land adversely continuously from 01.01.1992 till date peacefully. The principal defendant No. 1 by construction bamboo fending over the boundary of the suit land and by including the suit land within the boundaries of his purchased land has been possessing the same by producing valuable tress and after few days of the taking of possession they constructed homestead by digging pond and also a hut measuring 10 cubits x 6 with bamboo structure and tin roofing for the purpose of staying there with his family. Prior to the adverse possession of the suit land by the principal defendant No. 1 the suit land was lying vacant and the name of Sri Bipin Chandra Das (proforma defendant No.5) has been wrongly entered in the 24th column as permissive possessor in respect of the suit land under khatian No. 113 but the said Bipin Chandra Das never possessed the suit land being the permissive possessor but one Ranjit Ranjan Paul in the year 1978 constructed a hut for the purpose of manufacturing tiles in the suit land and he stopped the business in the year 1981 and the said hut was demolished Page 6 of 15 and the suit land was lying vacant. The principal defendant No.1 has been possessing the suit land from 01.01.1992 adversely denying the right, title, and interest proforma defendant No.3 and 4 within the knowledge of the owners and the world at large and the plaintiff without taking possession of the suit land purchased the suit land through registered Kobala bearing No.1-1848 dated 12.07.05 and hence till date the ROR in respect of the suit land has not been issued in the name of the plaintiff. The principal defendant No.1 has been possession the suit land adversely beyond the period of prescription and as such right to file the suit against the principal defendant No.1 has been extinguished and hence the suit instituted by the plaintiff is liable to be dismissed. The defendant also answered in their written statement that the right, title and interest of the proforma defendant No.3 and 4 over the suit land has been extinguished and as such they are not entitled to sell the sit land to anybody else and so the registered sale deed No.1-1848 dated 12.07.05 executed by pro-defendant No. 3 is fraudulent and liable to be dismissed.
[4] After considering the pleadings and submission of both sides, the trial court has framed the following issues for discussion:
(i) Whether the plaintiff in its present form?
(ii) Whether the plaintiff has got right, title and interest over the suit land?
(iii) Whether the defendants have dispossessed the plaintiff from suit land?
(iv) Is the plaintiff entitled to the decree as prayed for?
(v) To what other relief/reliefs the parties are entitled to?
(vi) Is there any cause of action of the instant suit?
(vii) Is the suit barred by limitation?
(viii) Whether the defendant No.1 has been possessing the suit
land since 01.01.1992.
Page 7 of 15
[5] While deciding the issue No. II, the trial court has stated
that as per deposition of the plaintiff's witnesses the said fact has not transpired that the suit land has been mutually settled between Chaturi Singh and Ruhini Singha or it was partitioned between them so that Chaturi Singh became the exclusive owner and possessor of the suit land. So, without any cogent evidence the trial court cannot believe that the plaintiff had the right, title or interest over the suit land because except the sale deed no other materials or evidence has been submitted by the plaintiff to prove that he is the owner and possessor of the suit land as per the existing documents submitted before the trial court. The trial court was of the opinion that the suit land still exists jointy in the name of Chaturi Singh and Ruhini Singh.
[6] The trial court after having examined all the records so placed in the plaint and also after examining the written statement filed by the defendant-appellant, depositions of PWs and DWs in support of the claim, has observed by the decree dated 28.06.2016 as herein under:
"In the result, due to the above discussions it has transpired that the defendant has failed to prove the plea of adverse possession in their favour i.e. the defendant has failed that they have been possessing the suit land since 01.01.1992. On the other hand, the plaintiff have also failed to establish right, title and interest over the suit land. So, due to the above ground the present suit of the plaintiff is dismissed on contest. Considering the nature of the suit I make no order as to the costs of the suit and direct the parties to bear their own costs. Thus, the present case is dismissed on contest."
[7] Being aggrieved and dissatisfied with the judgment and decree passed in the original suit, the appellant herein preferred an Page 8 of 15 appeal being case No. Title Appeal No.18 of 2012 in the court of the District Judge, North Tripura, Dharmanagar. The said court has observed by the order dated 09.02.2018 that it has been stated by the principal defendants-respondents that Smt. Chaturi Singha and Sri Chitta Singha were the owners of said 012 acre suit land and the principal defendant-respondent, Sri Radha Ranjan Paul finding the suit land vacant occupied the suit land and has been possessing the suit land adversely continuously and uninterruptedly since 01.01.1992 and the planted trees and also constructed huts. But from exhibit -3 which is also proved as exhibit-C it transpires that Bipin Chandra Das was the permissive possessor of land measuring 12 satak 049 acre which is the suit land. It is also stated that name of Bipin Ch. Das was wrongly entered in the 24th column as permissive possessor in respect of the suit land under khatian No.113 of Ramnagar Mouja. But the principal defendant-respondents failed to adduce any cogent documentary evidence to show that name of Bipin Ch. Das was wrongly entered in that Khatian.
It was further observed by the order dated 09.02.2018 as follows:
"In the result, the appeal is dismissed being devoid of merit. The judgment and decree dated 28.06.2012 and
02.07.2012 respectively passed by Ld. Civil Judge (Junior Division), Dharmangar, North Tripura in Title Suit No.24 of 2006 whereby and where under Ld. Trial Court has dismissed the suit or contest is hereby upheld."
[8] Being aggrieved by the said judgment and decree of the first appellate court dated 09.02.2018, the appellant herein has Page 9 of 15 preferred this instant appeal under Section 100 of the CPC. At the time of admitting this appeal, the following substantial question of law was framed by this court by the order dated 28.01.2019.
"1) Whether the findings relating to issue No.3 that for failure of the plaintiff-appellant to apply for mutation makes his claim of title bad in law?
2) Whether the findings of both the Courts below are perverse?"
[9] It is the case of the appellant that the appellant is the owner of the property and he has purchased the said suit property from his vendor with the tenant. The tenant has been informed about the said transaction and he is put to notice by the vendor who is also the defendant. The vendor has accepted and has no grievance against the appellant-plaintiff. But the tenant-defendant denied plaintiff as the owner. The sale deed, the vendor's right, title and interest is not in dispute, it cannot be said that the plaintiff by virtue of the registered sale deed who has the right, title and interest over the property cannot be denied his legitimate right. The contention of the tenant with regard to the validity of the sale deed on the ground that the sale deed is defected cannot be accepted.
[10] Mr. S. Bhattacharjee, counsel for the appellant has relied upon the judgment of the apex court in Suraj Bhan and Others vs. Financial Commissioner and others reported in (2007) 6 SCC 186 where the apex court has observed as under:
"8. So far as mutation is concerned, it clear that entry has been made and mutation has been effected in Revenue Records by Tehsildar on the basis of an application made by respondent No.5 herein and his name has been entered in Record of Page 10 of 15 Rights on the basis of the Will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of respondent No. 5 in Revenue Records, any illegality had been committed by Tehsildar. It is true that no notice was issued to the appellants but the Tehsildar had taken the action on the basis of Will said to have been executed by deceased Ratni Devi in favour of respondent No. 5. The said order has been confirmed by the Collector as also by Financial Commissioner. When the grievance was made against the said action by filing a Writ Petition, the High Court also confirmed all the orders passed by Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned.
9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors., AIR 1994 SC 1653). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."
[11] The defendant tenant has denied the ownership of the plaintiff and his claim of adverse possession and relied on the ROR revenue Records and claimed that the suit needs to be dismissed. It is the case of the defendants that the revenue records do not support the case of the plaintiff and ownership of the plaintiff has been denied by the defendant as owner and claimed adverse possession and prays to continue to occupy the same and prays to dismiss the RSA in view of the concurrent finding of both the courts against the plaintiff. [12] Mr. S. Lodh has also placed his reliance on Section 44 of Transfer of Property Act and further contended that there were two Page 11 of 15 owners originally and only one owner signed the sale deed and the sale deed is defective and since both the owners have not transferred the property jointly the plaintiff cannot claim any relief against the tenant. [13] Mr. S. Lodh, counsel for the respondents has relied upon the following judgments of the apex court (i) Union of India and Others vs. Vasavi Cooperative Housing Society Limited and Others reported in (2014) 2 SCC 269, where the apex court has held herein under:
15. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabalises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration.
17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maran Mar Basselios Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31 observed that "20.......in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title."
18. In Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC 426, this Court held as under:
"The onus to prove title to the property in question was on the plaintiff-respondent. ........In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."Page 12 of 15
19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited.
20. We notice that the trial court as well as the High Court rather than examining that question in depth, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit land, went on to examine in depth the weakness of the defendants title. Defendants relied on the entries in the GLR and their possession or re- possession over the suit land to non-suit the Plaintiffs. The court went on to examine the correctness and evidentiary value of the entries in the GLR in the context of the history and scope of Cantonment Act, 1924, the Cantonment Land Administration Rules, 1925 and tried to establish that no reliance could be placed on the GLR. The question is not whether the GLR could be accepted or not, the question is, whether the plaintiff could prove its title over the suit property in question. The entries in the GLR by themselves may not constitute title, but the question is whether entries made in Ext.A-3 would confer title or not on the Plaintiff.
21. This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that "5. .......It is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law."
In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that "2. ......that the entries in jamabandi are not proof of title".
In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that "5. ....an entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff." [14] Further, reliance has been placed by the counsel for the respondents on another judgment by the apex court in Jagdish Patel Page 13 of 15 vs. Shivnath and Others reported in (2019) 6 SCC 82, where the apex court has observed in the following manner:
44. In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants- appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.
45. Observing that in a suit for declaration of title, the plaintiffs- respondents are to succeed only on the strength of their own title irrespective of whether the defendants-
appellants have proved their case or not, in Union of India and others v. Vasavi Co- operative Housing Society Limited and others (2014) 2 SCC 269, it was held as under:-
"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."
[15] In view of the above discussion and in the light of the judgment of the apex court, this court has no hesitation to opine that the tenant since both the original owners of the suit land are sisters and one of the sisters has alienated the property in favour of the plaintiff and having knowledge about the said alienation the defendant cannot deny the title of the plaintiff and further it is not for the tenant to contend with regard to the validity of the sale deed. Once the tenant always the tenant unless there is any change circumstances of tenant becoming the owner by virtue of a legally recognized transaction. The interest in revenue records do not prove title and they cannot have an Page 14 of 15 overriding effect on the sale deed. In the present facts of the case, it cannot be said that the defendant was enjoying an uninterrupted possession and can claim his right under adverse possession. In the present facts of the case the Section 44 of the Transfer of Property Act cannot be made applicable. There is no dispute or protest from the so called vendor of the property.
Section 44 of the Transfer of Property Act, 1882 is extracted herein under:
"Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
[16] During the course of the argument, the counsel for the plaintiff submit that the original land purchased by the vendors of the plaintiff is at large extent and both the sisters amongst themselves had an understanding and with the consent a portion of the said property of the vendor has been sold to the plaintiff.
[17] It is not a case for deciding the validity of the sale deed or cancellation of the sale deed by the tenant. It is with regard to the relation between the tenant and the land lord. The defendant being the tenant, since the title of the plaintiff by virtue of the registered sale deed has not denied by its vendors who are also party to the suit. Page 15 of 15
Tenant cannot enter into the shoes of the vendor and contest the matter on the ground that the plaintiff is not having valid sale deed. [18] In view of the above discussion this court has no hesitation to set aside the orders of the lower appellate court and the trial court in TS 24 of 2006 and TA 18 of 2012 respectively, the present appeal is allowed in favour of the plaintiff/Land Lord.
[19] The tenant-respondents are directed to vacate the premises and hand over the vacant possession to the plaintiff within a period of two months from the date of this order.
[20] Registry is directed to prepare the decree accordingly.
JUDGE Dipak