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Judgment
S.C. Das, J.—This second appeal under Section100 of the Code of Civil Procedure, 1908 is directed against judgment and decree dated 21.03.2011 passed by learned Addl. District Judge, Belonia in Title Appeal No. 10 of 2010, whereunder the learned Addl. District Judge set aside the judgment and decree dated 16.07.2010 passed by learned Civil Judge, Junior Division, Belonia, in Title Suit No. 12 of 2009.
Heard learned senior counsel, Mr. S.M. Chakraborty for the appellants and learned counsel, Mr. A. Lodh for respondent No. 4. Learned counsel, Mr. D.C. Nath appeared on behalf of respondent Nos. 1, 2, 3 and 5 but declined to make any submission since those respondents did not submit any pleadings and did not contest the case.
The second appeal has been admitted for hearing on the following substantial questions of law:-
"(1) Whether the learned first appellate court committed error by holding that, in view of pendency of cancellation proceeding in respect of the allotment order relating to the suit land, earlier allotment order granted by the authority in favour the appellants-plaintiffs could not have attained its finality for deciding the matter in issue?
(2) Whether the learned appellate court committed error by holding that Ext.10 i.e. the letter, dated 28.07.2009, prepared and issued by the Tehsildar, during the pendency of the suit, indicating therein that the appellants-plaintiffs were in possession of the suit land, can''t be considered for deciding the possession in favour of the appellant-plaintiffs?
The appellants, as plaintiffs instituted Title Suit No. 12 of 2009 in the Court of learned Civil Judge, Junior Division, Belonia seeking declaration of right, title and interest in the suit land described in the Schedule of the plaint, confirmation of possession and perpetual injunction against the defendants from entering into the suit land and disturbing the possession of the plaintiffs as well as prayed for declaring Revenue Proceeding No. 09/2007 initiated under Rule 15(VII) of TLR & LR(Allotment of Land) Rules, 1962 before Additional District Magistrate & Collector, South Tripura as illegal, void and inoperative.
The plaintiffs, inter alia, contended that their father, Sushil Chandra Majumder, since deceased entered into the suit land in the year 1972 and at that time the suit land was full of jungles and their father cleared the jungles and took possession of the suit land and thereafter approached the defendant No. 5 for allotment of the suit land in his name and accordingly by an order of allotment No. 61/1975 the suit land was allotted in his name. Khatian No. 1163 was posted in the name of Sushil Chandra Majumder and the allotted land was recorded in Dag Nos. 1213/2233 and 1213/2234. The nature of the land is ''tilla'', measuring 1.10 acres at Mouja Birchandranagar which is the suit land described in the Schedule of the plaint. At the time of revisional survey the suit land was recorded in Khatian No. 647, Plot Nos. 1967, 1966, 1966/3093, 1966/3094.
It is further contended by the plaintiffs that while Sushil Chandra Majumder was in peaceful possession of the suit land the defendant No. 4 made an attempt to enter into the suit land and approached O/C of Manpathar Police Outpost to help him in taking possession and when the proposal was refused the defendant No. 4 approached O/C of Santirbazar P.S. and managed to submit a report to the defendant No. 5 to draw up a proceeding under Section 145 of CrPC and accordingly case No. NGR354/2002 under Section 145 of CrPC was initiated. On the approach of defendant No. 4 the defendant No. 5 initiated a Revenue Proceeding bearing No. 87/REV/03 regarding cancellation of allotment and it was pending. There were inquiries made by the revenue authority and it was found that Sushil Chandra Majumder and thereafter the plaintiffs were in possession of the suit land. Subsequently, Revenue Proceeding No. 87/REV/03 was dropped on 28.05.2007 and a fresh proceeding bearing Revenue Proceeding No. 09/2007 was started on the application of defendant No. 4 for cancellation of allotment.
Sushil Chandra Majumder died on 02.04.2007 leaving behind the plaintiffs in possession of the suit land and it is alleged that the defendant No. 4 on 27.12.2008 tried to dispossess the plaintiffs from the suit land and hence the plaintiffs instituted the suit seeking relief as stated hereinbefore against the defendants.
Defendant Nos. 1, 2, 3 and 5 did not contest the suit and the trial proceeded ex-parte against them.
Defendant No. 4 contested the suit by filing written statement, inter alia contending that the suit land along with other land measuring 31.54 acres out of C.S. Plot Nos. 728 and 1213 of Mouja Birchandranagar was handed over to the Indian Council of Agricultural Research (for short, ICAR), Tripura Centre for setting up of a Krishi Vigyan Kendra in South Tripura District and the defendant No. 4 took over the possession of the land in the year 1985. The possession was handed over by the Superintendent of Agriculture, Bagafa to defendant No. 4 on 28.03.1985 and from that date the defendant No. 4 was possessing the suit land for the Krishi Vigyan Kendra.
In the month of September, 1997 Sushil Chandra Majumder, the predecessor of the plaintiffs made an attempt to dispossess the defendant from the suit land and so the defendant approached O/C Santirbazar P.S. and after enquiry O/C Santirbazar P.S. submitted report to the Sub-Divisional Magistrate, Belonia (defendant No. 5) and on that report a proceeding under Section 145 of CrPC vide NGR 354/2002 was initiated. The defendant thereafter came to know that Sushil Chandra Majumder claimed right, title and interest over the suit land in view of an order of allotment and the defendant therefore approached the DM & Collector for cancellation of allotment and accordingly a revenue proceeding was initiated for cancellation of allotment and that is pending. The plaintiffs and their predecessor were never in possession of the suit land and the suit land is in possession of the defendant No. 4 from the year 1985, the date of handing over of the possession. The defendant denied all the averments/claims made by the plaintiffs in their pleadings.
The trial Court considering the pleadings of the parties formulated five issues, namely--
"1. Whether the suit is maintainable in its present form?
Whether the plaintiffs are entitled to get a decree declaring their right, title and interest as well as confirmation of possession over the suit land?
Whether the plaintiffs are entitled to get a degree declaring the revenue proceeding No. 09/07 under rule 15(VII) of the TLR & LR Rule 1962 in the Court of Addl. District Magistrate & Collector, South Tripura, Udaipur as illegal, void and inoperative?
Whether the plaintiffs are entitled to get a decree for perpetual injunction against the defendants and their agents as prayed for?
Whether the plaintiffs are entitled to get any other relief and if so up to what extent?"
In the course of trial plaintiff No. 1 examined himself as PW1 and also examined four more witnesses, namely PW2 Tapan Sen, PW3 Sunil Dey, PW4 Jadugopal Datta and PW5 Nirmal Das. In support of their case, the plaintiffs also proved ten items of documents which are marked as Exbt.1 to Exbt.10 as follows:
Exbt.1: Certified copy of Khatian No. 1168 of Mouja B.C. Nagar.
Exbt.2: Certified copy of Finally published Khatian No. 647 of Mouja B.C. Nagar.
Exbt.3. Mutated Khatian No. 647 of Mouja B.C. Nagar.
Exbt.4. Certified copy of enquiry report of D.C.M., Santir Bazar, dated 08.10.2003.
Exbt.5 Certified copy of order in connection with Revenue case No. 16/04.
Exbt.6 Certified copy of order in connection with Revenue case No. 09/07.
Exbt.7 Certified copy of local notice.
Exbt.8 Certified copy of letter dated 18.05.2007 of SDM, Santir Bazar addressed to DM, South Tripura, Udaipur.
Exbt.9 Certified copy of enquiry report dated 29.03.2007.
Exbt.10 Certified copy of enquiry report dated 28.07.2009.
On behalf of the defendant No. 4, Sri Arivind Kr. Singh has been examined as DW1 and further the defendant examined four more witnesses, namely DW2 Chailafru Mog, DW3 Kanja Mog, DW4 Vanubala Debnath and DW5 Laduang Mog.
The defendant No. 4 also proved six items of documents which are marked as Exbt.A to Exbt.F as follows--
Exbt.A True copy of the handing over and taking over of the suit land dated 28.03.1985.
Exbt.B One photo copy of the letter dated 10.04.2007 by the Sr. Deputy Magistrate addressed to the SDM, Santir Bazar.
Exbt.C One report of DCM, Santirbazar dated 08.10.2003.
Exbt.D. One photo copy of the letter dated 23.10.2002 of District Magistrate, South Tripura.
Exbt.E True copy of the enquiry report dated 25.09.2002 of SDM, Belonia.
Exbt.F. A letter dated 23.03.2004 of ADM, Belonia addressed to the District Magistrate, South Tripura.
The trial Court decided issue Nos. 1, 2, 4 and 5 in favour of the plaintiffs and issue No. 3 against the plaintiffs and accordingly partly decreed the suit.
Aggrieved, defendant No. 4 preferred Title Appeal No. 10 of 2010 and the learned Addl. District Judge, Belonia by impugned judgment dated 21.03.2011 allowed the appeal and set aside the judgment and decree passed by the trial Court and hence this second appeal.
Learned senior counsel, Mr. Chakraborty has submitted that the appellate Court interfered in the judgment only on the ground that a revenue proceeding for cancellation of allotment is pending before the revenue authority. So long the order of allotment is not cancelled in the revenue proceeding pending before the revenue authority, the plaintiffs have got their right, title and interest in the suit land and entitled to protect the same till the allotment order is cancelled by the revenue authority. He has further submitted that the consecutive khatians prepared in the name of the predecessor of the plaintiffs and thereafter in the name of the plaintiffs after the death of their father and the khatian which are marked as Exbt.1, 2 and 3 shows that the plaintiffs are in possession of the suit land and since those khatians are finally published khatians the entries therein have a presumptive value about possession of the plaintiffs and so the plaintiffs were entitled to get a decree of permanent injunction against defendant No. 4.
Mr. Lodh, learned counsel for the respondent No. 4 submitted that the plaintiffs did not produce the order of allotment and nothing stated about the order of allotment in the plaint or in the evidence of the plaintiffs. Khatians, no doubt have got presumptive value since those are finally published but by itself cannot prove the title of the plaintiffs over the suit land. He has submitted that the defendant No. 4 produced documentary evidence as well as oral evidence to show that the defendant No. 4 entered into possession of the suit land in the year 1985 along with other lands and the defendant No. 4, Krishi Vigyan Kendra(KVK) is in possession of the suit land and so the allotment if any as alleged in the name of Sushil Chandra Majumder was not permissible as per the rules.
The plaintiffs instituted the suit claiming title over the suit land by virtue of an order of allotment but no such order of allotment proved by the plaintiffs. Nothing also stated by the plaintiffs in their pleadings or evidence as to why they did not and/or could not produce the order of allotment. They claimed their title based on Exbts.1, 2 and 3 which are finally published khatians and those khatians show that those were prepared pursuant to allotment of land in the name of Sushil Chandra Majumder.
Admittedly, the revenue authority initiated proceeding for cancellation of allotment which suggests that there was an order of allotment and otherwise there was no question of having initiating a proceeding for cancellation of allotment. The defendants could not come out with any better document to show that the suit land was settled in their names than that of the plaintiffs who have come up before the Court with finally published khatians which have presumptive value as per Section 43(3) of the TLR & LR Act, 1960. So the plaintiffs have established their right, title and interest in the suit land by producing the khatians which are documents of better appreciation than that of the documents produced by the defendant No. 4. The defendant No. 4 only relied on Exbt.A, i.e. a true copy of handing over and taking over of possession but the copy shows that the possession was handed over by Deputy Collector, Santirbazar Revenue Circle to the Superintendent of Agriculture, Bagafa on 29.01.1985 and there is an entry at the bottom handing and taking over dated 28.03.1985 and the handing over was done by Superintendent of Agriculture and there is nothing in that copy as to who had taken over the possession. Any way Exbt.A is a true copy and not the original document. Those two persons have not been examined. So the defendant No. 4 could not come out with any better document to controvert the finally published khatians prepared in the name of Sushil Chandra Majumder and subsequently in the name of the plaintiffs.
The trial Court as well as the appellate Court, as it appears put lot of emphasis on Exbt.4, Exbt.8, Exbt.9, Exbt.10, Exbt.B, Exbt.C, Exbt.D, Exbt.E and Exbt.F. Those are some official communications between the revenue officials and those official communications cannot be accepted as a basic evidence to decide the issue of possession in the absence of those persons examined about the factual position they have found. Those official communications may be considered while appreciating the other evidence on record.
I am quite surprised and astonished to see that the trial Court as well as the appellate Court did not at all consider the oral evidence on record to decide as to who was in possession of the suit land at the time when the suit was instituted and before that when the cause of action as alleged arose.
The trial Court decided issue No. 3 against the plaintiffs but the plaintiffs did not challenge that decision. Any way since I find that the trial Court as well as the appellate Court did not consider the oral evidence on record in addition to the documentary evidence, I think it is a fit case where the appeal should be remanded back to the appellate Court for deciding the appeal afresh considering both the documentary and oral evidence on record.
Accordingly, the judgment and decree dated 21.03.2011 passed by learned Addl. District Judge, Belonia in Title Appeal No. 10 of 2010 is set aside. The appeal is remanded back to the Court of learned District Judge, Belonia for deciding afresh considering both the documentary and oral evidence after hearing learned counsel of both side. The appeal should be disposed of by the learned District Judge at the earliest and not later than four months.
Send back the L.C. records along with a copy of the judgment.