Dipali Lodh VsThe State of Tripura

Utpalendu Bikas Saha, J.—The instant second appeal under Section 100 of the Civil Procedure Code (for short, "CPC") is filed challenging the judgment dated 22.09.2005 passed by the learned Addl. District Judge, Belonia, South Tripura in Title Appeal No. 10 of 2005 affirming the judgment and decree of dismissal dated 31.05.2005 passed by the learned Civil Judge, Jr. Div., Belonia, South Tripura in Title Suit No. 12 of 1995.

Heard Mr. SM Chakraborty, learned senior counsel assisted by Mr. A Sengupta, learned counsel for the plaintiff-appellant as well as Mr. D Chakraborty, learned senior counsel assisted by Mr. S Chakraborty, learned Addl. GA for the defendant-respondents.

Facts of the case needed to be discussed are as follows:--

"One Jatindra Dutta was in possession of 18 Gandas 1 Kara and 16 Dhurs of land situated at Santirbazar recorded in the khas khatian No. 1/505 and 1/511. The appellant-plaintiff, Smt. Dipali Lodh (hereinafter referred to as the "plaintiff") purchased the aforesaid land from the aforesaid Jatindra Dutta in the year 1970 under an un-registered deed and was possessing the same. During the survey operation in 1965, the aforesaid land was mentioned in the Khatian as under possession of Jatindra Dutta. Said Jatindra Dutta sold out the aforesaid land to the plaintiff while he was in possession of the suit land about 20 years ago and at the time of selling he handed over the possession of the said land to the plaintiff. At the time of purchasing the suit land there were three homesteads in the land which were constructed by Jatindra Dutta and after taking possession of the land the plaintiff also constructed three dwelling huts. It is also stated in the plaint that the plaintiff knowing the land to be khas land possessed by Jatindra Dutta, purchased the same, with her hostile attitude, which was within the knowledge of other persons of the locality."

On 13.06.1995 the respondent, defendant No. 3, sent a notice in connection with TPP case No. 46/95 to the husband of the plaintiff stating that Dag Nos. 1816 and 1817 of Khash Khatian Nos. 1/505 and 1/511 was illegally being possessed by him by constructing dwelling huts in the land. By the said notice the respondent, defendant No. 3, asked the husband of the plaintiff to vacate the land within seven days by demolishing his six constructed dwelling huts. It is stated by the plaintiff that the government officers were aware of it that the plaintiff was the owner of the land presently, but without making her party, they incorporated her husband to be a party in the case, just to deny the adverse possession of the plaintiff over the suit land.

It is further pleaded that the land does not fall within the boundary of the government quarters land and the same was also informed by the plaintiff in response to the notice of the Tahashildar Santirbazar which was sent to her on 23.03.1995. The plaintiff has also stated that she came to know that as per the direction of the Defendant No. 3, the Defendants Nos. 7 and 8 are trying to dispossess the plaintiff from her peaceful possession over the suit land. The plaintiff also prayed for leave under Section 80(2) of the CPC for filing the suit which was allowed. The suit is filed by the plaintiff for getting a declaration of her right, title and interest over the suit land by way of adverse possession and to restrain the defendants from entering into the suit land.

Defendants by way of filing their written statement stated inter alia that, the plaintiff has got no cause of action for filing the suit and denied the possession of Jatindra Dutta over the suit land under plot Nos. 1816 and 1870 of Mouja Santirbazar or transfer of possession of the suit land in the year 1970 to the plaintiff by an unregistered deed. They also denied that Jatindra Dutta was in possession since 1950. It is further stated that Jatindra Dutta has got no locus standi to transfer the suit land to the plaintiff being the same belongs to the government. It is also stated that the suit land is situated within the boundary complex of Santirbazar Higher Secondary School which is ordinarily required for the development of the school.

The learned trial court after considering the pleadings of the parties and hearing the learned counsel for the parties framed four issues which are as follows:--

"i) Has the plaintiff any cause of action for this suit?

ii) Is the suit maintainable in its present form?

iii) Has the plaintiff acquired title to the suit land by adverse possession?

iv) Is the plaintiff entitled to a decree as prayed for?"

In support of the case of the plaintiff, she has examined three witnesses and the defendant also examined four witnesses. Considering the evidence on record and hearing the parties, the trial court dismissed the suit. Being aggrieved by the judgment and decree of the trial court, the plaintiff preferred an appeal being title Appeal No. 10/2005 which was also dismissed by the appellate court. Hence, the instant second appeal.

At the time of admission of the instant appeal the following substantial questions of law were framed:--

"v) Whether the adverse possession of a person over a land can be transferred to another person before acquiring adverse title thereon?

vi) Whether the period of adverse possession of a transferor over a land will be tacked with the possession of a transferee for counting the total period of adverse possession to find out whether adverse title has accrued to the transferee or not?

vii) Whether a suit for recovery of possession is required to be filed within the statutory period of limitation particularly when the record of right already reflected the forceful possession of a person on the land in question?

viii) Whether for the purpose of transferring the adverse possession any registered deed is required as per law?

ix) Whether by dint of tacking the continuous adverse possession of the pro-defendant with the continuous possession of the plaintiff over the suit land openly denying the right, title and interest of all concerned created adverse title in her favour?"

Mr. SM Chakraborty, learned senior counsel for the plaintiff-appellant while urging for setting aside both the judgment of the trial court as well as the appellate court would contend that both the courts below failed to consider the evidence on record and the pleadings of the parties, mainly the plea relating to continuous possession, hostile to the title and interest of the true owners, respondents herein. He mainly urged that the plaintiff did not purchase the title of the suit land, rather obtained the possessory right from Jatindra Dutta who was in possession for about 20 years and was also hostile to the interest and title of the true owner if the continuous possession of both Jatindra Dutta and the present plaintiff is taken together by applying the principle of tacking.

He further submits that a person has the right to transfer the possessory right to another person on some consideration and in that case, the registration of sale deed is not necessary. He finally contended that if the possessory right comes from one person to another then the latter person cannot be considered as an independent trespasser as has been held by both the courts below.

On the other hand, Mr. D Chakraborty, learned senior counsel for the defendants while refuting the contention of the learned counsel for the plaintiff, would contend that Khas land belongs to the government and the same cannot be transferred unless the adverse right is acquired. According to him, in the instant case, though Jatindra Dutta allegedly possessed the land in question for 20 years but that is not the period for acquiring title by way of adverse possession against the government. He further submits that the possessory right cannot be transferred by way of an unregistered sale deed as the pro-defendant Jatindra Dutta did not acquire ownership over the said land.

It appears from the judgment of the trial court that the learned trial judge while considering the plea of the plaintiff, inter alia, that the vendor of the plaintiff, pro-defendant Jatindra Dutta was in constructive possession over the suit land and his name was inserted in the land record prepared by the State during CS Survey and subsequently the said vendor sold out the land to the present plaintiff, who purchased the said land knowing the fact of possession, held that, on perusal of the Khatian of Jatindra Dutta he found that the name of Jatindra Dutta is mentioned in column 23 of the said Khatian but the name of the present plaintiff is not mentioned therein. He has also perused the case record of TPP Proceeding No. 46 of 1995 and on perusal of the said record he found that the Tahasilder of Santir Bazar Tahashil Kachari submitted a report on 23.03.1995 as per direction of the SDM, Belonia wherein it is mentioned that, in Khatian No. 511 the name of Jatindra Dutta is mentioned as forceful possessor and thereafter, the said possessor transferred the possession to Dwijendra Lodh and his wife since 1971 and on the date of his submitting report, Sri Lodh was in possession over the suit land. The trial judge ultimately dismissed the suit.

The appellate court also did not consider the facts in issue, i.e. the right of possession of the plaintiff and her predecessor which has to be added to decide the continuous possession for considering her claim of adverse possession and title, hostile to the interest of the plaintiff.

It appears from the record that there is no allegation from the side of the defence that there was any gap between the possession of pro-defendant, Jatindra Dutta and that of the plaintiff. Rather fact remains that while Jatindra Dutta was in possession of the land in question he sold it at a valuable consideration to the plaintiff and also gave her possession over the same which fact was also not considered by both the courts below.

It also appears from the record that neither the trial court nor the appellate court considered the plea of hostility to the title made by the plaintiff against the defendants. In that view of the matter this Court is of the considered opinion that both the learned courts below committed error while deciding the issue Nos. 3 and 4.

In view of the above, the suit is remanded back to the trial court for deciding the issue Nos. 3 and 4 afresh taking note of the observation made herein above, after serving notice upon the parties. It is also made clear that neither of the parties should be entitled to adduce fresh evidence as evidence has already been recorded. As the original suit was filed in the year 1995, learned trial court is directed to dispose of the same at an early date preferably within six months from the date of receipt of the record.

In the result the appeal is allowed. Send down the LCR.