Mahamaya Ghosh and Others vs Naresh Chandra Ghosh and Others

S.C. Das, J.—This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against Judgment & Decree dated 03.08.2004 passed by learned District Judge in Title Appeal No. 39 of 1993 whereunder the learned District Judge dismissed the appeal filed by the appellants and upheld the Judgment & Decree dated 29.05.1993 passed by learned Assistant District Judge, Court No. 1, Agartala in T.S. No. 11 of 1971. Heard learned senior counsel, Mr. A.K. Bhowmik for the appellants and learned senior counsel, Mr. D. Chakraborty for the respondents.

Rakhal Chandra Ghosh (since deceased), the predecessor of the respondents (hereinafter mentioned as ''plaintiff'') instituted Title Suit No. 11 of 1971 praying for declaration of right, title, interest and recovery of khas possession of the land described in Schedule B of the plaint, which is a part of the land described in Schedule A of the plaint against Birendra Ch. Ghosh (since deceased) (defendant No. 1), Smt. Jugal Bala Ghosh (defendant No. 2) (died and struck off) and Sri Krishna Chandra Ghosh (defendant No. 3), the predecessor of the appellants (hereinafter mentioned as the ''defendants'').

The case of the plaintiff, in short, is that the suit land originally belonged to one Rani Lalana Devi, wife of late Colonel Kumar Prafulla Kumar Deb Barma in a Takshishi Taluki right recorded in Takshishi Taluk No. 307; who was the owner of the suit land. There was a tank and some houses constructed by Rani Lalana Devi in the A Schedule land. The plaintiff and defendant No. 1 were permitted by Rani Lalana Devi to reside in the suit land in separate block. Defendant No. 1 was permitted to live in the land described in Schedule B of the plaint in different huts and the plaintiff was permitted to reside in the remaining A Schedule land in the houses of Rani Lalana Devi. It was the condition imposed by Rani Lalana Devi that the plaintiff and the defendants should vacate the suit land as and when will be asked by her and so the plaintiff and defendant No. 1 were tenant at will in the entire A Schedule land. In the year 1958, Rani Lalana Devi offered both plaintiff and defendant No. 1 to take permanent lease of their respective plot of land and houses in their respective occupation, but the defendant No. 1 refused the offer made by Rani Lalana Devi. Whereas, the plaintiffs accepted the offer and got settlement of entire A Schedule land on payment of a Najarana (price/premium) of Rs. 3,000/- and accordingly, Rani Lalana Devi permanently settled A Schedule land in favour of the plaintiff Rakhal Chandra Ghosh and a registered deed to that effect by both Rakhal Chandra Ghosh and Rani Lalana Devi was executed on 04.10.1958 (Exbt. 6). Pursuant to that permanent settlement, by dint of the lease deed, the plaintiff became owner of the entire A Schedule land and jote No. 2 was posted in his name of the A Schedule land and a jamabandi of Rs. 800/- per year was fixed and the plaintiff paid the rent and got receipts. During survey and settlement operation, the suit land was recorded in khatian No. 10990 in plot No. 11492, 11493 and 11494 measuring 16 Gandas and odd. The defendant Birendra Chandra Ghosh and his relatives, the defendant Nos. 2 and 3 were residing in the B Schedule land and Birendra Chandra Ghosh filed an objection case claiming hostile right and interest in the year 1965 vide Case No. 08 of 1965, but that case was decided in favour of the plaintiff. The plaintiff thereafter asked the defendants to vacate the B Schedule land, but the defendants denied to vacate the same and hence the plaintiff filed the suit praying for declaration of his title and recovery of khas possession.

The defendants by filing written statement contested the suit denying the averments made in the plaint and inter alia pleaded that Rani Lalana Devi was never owner of the suit land as a Talukdar and transaction between Rani Lalana Devi and Rakhal Chandra Ghosh by dint of the lease deed was a fraudulent, collusive, void and colourable transaction and the plaintiff acquired no right, title, interest by dint of that lease deed dated 04.10.1958. It is further pleaded by the defendants that Jnan Ghosh, father of defendant No. 1 Birendra Chandra Ghosh and Kanai Ghosh, brother of Jnan Ghosh jointly came to Agartala from Dhaka about 80 years ago and started their profession supplying milk, butter, ghee, curd etc. to the Palace of the Maharaja as well as the Temples and thereby became closure to the Royal family. Having been satisfied with their services, Dewan Nabadweep Bahadur of the Maharaja of Tripura verbally allowed Jnan Chandra Ghosh and Kanai Ghosh to reside on the suit land described in the Schedule A of the plaint as their permanent resident. It was a fellow land full of jungles and both Jnan Ghosh and Kanai Ghosh cleared the jungles of the suit land and constructed their houses and was carrying on their business of milk, curd, butter, ghee etc. supplying the same to the Rajbari and Temples. Later on, they brought the plaintiff, a relative and engaged him as an employee to look after their business and accordingly, Rakhal Chandra Ghosh also started residing on the suit land and he was allowed to construct his house in a small part of the suit land and he started residing there and gradually, after his marriage, he started his own business and subsequently, the shrewd and cunning plaintiff created false record of right in collusion with the settlement staff in his name against which the defendants raised objection. The plaintiff was never a permissive possessor or a tenant in the suit land and he has no right, title, interest or possession in the suit land. Rani Lalana Devi never owned the suit land and had no right to permanently settle the suit land in favour of the plaintiff and the deed of lease executed between Rani Lalana Devi and Rakhal Chandra Ghosh, the plaintiff, was a false deed created to get the suit land. The defendants therefore prayed for dismissal the suit

Records of the suit shows that the suit was decided ex parte in favour of the plaintiff on 17.01.1984 and thereafter, on the prayer of the defendants, it was restored to file by an order dated 26,03.1990. Issues were framed before the suit was decided ex parte, but thereafter, the learned Subordinate Judge by order dated 01.02.1992 re-cast the issues and the following four issues were framed:-

"(A) Whether the suit is maintainable in its present form?

(B) Whether the plaintiffs have any right, title and interest over the suit land?

(C) Whether the defendants have been possessing the suit land adversely against the interest of the plaintiffs for more than stipulated period of 12 years prior to the date of institution of the instant suit?

(D) Whether the plaintiffs are entitled to any relief and if so up to what extent?"

In course of trial on behalf of the plaintiffs one witness namely, Sukhen Chandra Ghosh, son of the original plaintiff Rakhal Chandra Ghosh has been examined as P.W. 1 and 10 items of documents (Exbt. 1 to 10) were proved in support of the plaintiff''s case.

In support of the defendants one witness namely, Dhirendra Chandra Ghosh, son of defendant No. 1 Birendra Chandra Ghosh was examined as D.W. 1 and in support of their case, they have proved 6 items of documents marked as Exbt. A to Exbt. F.

Considering the pleadings and evidence on record, learned Subordinate Judge decided all the issues in favour of the plaintiffs and accordingly, decreed the suit. Aggrieved, the defendants preferred Title Appeal No. 39 of 1993 in the Curt of the District Judge, West Tripura, Agartala and learned Additional District Judge by Judgment dated 10.01.1997 remanded the suit for fresh trial on certain issues to the trial Court. Challenging the said Judgment of the appellate Court, both the plaintiffs and defendants filed FA No. 30 of 1997 and FA (Cross objection) No. 29 of 1998 in the Gauhati High Court, Agartala Bench and on the prayer of both side, the Judgment passed by the appellate Court dated 10.01.1997 was set aside by the High Court and the Title Appeal was remanded back to the learned District Judge for disposal of the appeal on the evidence and materials already on record by a fresh Judgment. On receipt of the record, the learned District Judge by impugned Judgment dated 03.08.2004 dismissed the appeal filed by the defendants and hence, this second appeal.

By order dated 25.11.2004, the second appeal has been admitted for hearing on the following substantial question of law:-

(1) Whether a tribal widow to whom the Hindu Succession Act does not apply can transfer the land to her husband on the pretext of a legal necessity without establishing the same?

(2) Whether the Ext.6 Lease Deed is void for the reason that it did not spell the legal necessity to justify the transfer?

(3) Whether the first appellate court was correct in interpreting the provision of TLR & LR Act for holding that the plaintiff acquired rayoti right in the husband''s property?

Let us first take up substantial question of law Nos. 1 and 2 together for decision.

Learned senior counsel, Mr. Bhowmik submitted that the suit land belonged to Colonel Kumar Prafullah Kumar Debbarma, husband of Rani Lalana Devi. Hindu law being not applicable to the Tribles, Rani Lalana Devi acquired no right to transfer the suit land after the death of her husband. It is also contended by learned senior counsel that the appellate Court made an observation that Rani Lalana Devi had the right to transfer the land on legal necessity, but that finding was not correct since there was no stipulation in the lease deed that out of legal necessity she transferred the suit land.

In support of his contention, learned senior counsel, Mr. Bhowmik referred the case of Satish Chandra Brahma Vs. Bagram Brahma and another, .

Countering the submission of learned senior counsel, Mr. Bhowmik, learned senior counsel, Mr. Chakraborty has submitted that there is nothing in the pleading that Rani Lalana Devi inherited the suit land after the death of her husband. No such issue was framed and no evidence also adduced to that effect. The point was raised at the time of argument by the learned counsel for the defendants before the trial Court and accordingly, observation was given by the trial Court as well as by the appellate Court, since such a point was raised on behalf of the defendants.

I am really surprised and astonished to see that there is no foundation of forming the substantial question of law Nos. 1 and 2. Plaintiffs pleaded case is that Rani Lalana Devi was the owner of Takshishi Taluk No. 307 and she allowed the plaintiff and defendant No. 1 to reside in the suit land on condition to vacate the same as and when will be asked by her. She thereafter, proposed for permanent settlement of the suit land to both the plaintiff and defendant No. 1, but defendant No. 1 refused to get the settlement whereas the plaintiff agreed to the proposal and accordingly, Rani Lalana Devi on receipt of a premium of Rs. 3,000/- permanently settled the suit land which is a Taluki land, in favour of the plaintiff and executed the lease deed dated 04.10.1958 and thereby, the plaintiff became the owner of the land. Defendants by filing written statement contended that Rani Lalana Devi was never owner of the suit land. She was not a Talukdar of the suit land as claimed by the plaintiff. The definite case of the defendants is that the suit land belonged to the then Maharaja of Tripura and Dewan Nabadweep Chandra verbally allowed Jnan Ghosh and Kanai Ghosh, the predecessor of defendants to reside on the suit land. There is not even a whisper in the pleadings of the defendants that the suit land belonged to Colonel Kumar Prafullah Kumar Debbarma, the husband of Rani Lalana Devi and after the death of Kumar Prafullah Debbarma, Rani Lalana Devi became owner of the suit land. In the absence of any such pleading by the defendants in their written statement, I do not understand wherefrom this issue has been imported by the defendants and substantial question of law also formulated on that point. Admittedly, there was no such issue framed by the trial Court. There is also no evidence on record in respect of the alleged point raised on behalf of the appeals. Rather D.W. 1, as I find in his deposition, made clear statement that neither Rani Lalana Devi was owner of the suit land nor her husband Kumar Prafulla Debbarma was owner of the suit land. We may quote here the relevant part of deposition of DW 1:-

"It is not a fact that Lalana Devi told our father to take the settlement of the suit land from her paying her Rs. 3,000/- as Najarana. Lalana Devi was not the owner of the suit land. The then Maharaja of Tripura were the owner of the suit land and Prafulla Karta was not the owner of the suit land. Prafulla Karta did not take the settlement of the suit land from the then Maharaja. It is also not a fact that we were permitted by the plaintiff to stay over the suit land."

A civil suit stands on the pleadings of the parties. Issues are framed taking into consideration the pleadings of both side. Since there were no pleadings that the suit land belonged to Kumar Prafullah Debbarma and after his death Rani Lalana Devi inherited the property, no such issue was also formulated. No evidence was also led by either side on that point. So, there was no question at all for deciding or taking into account any such issue which is altogether beyond pleadings. There was not even a question of law, far from a substantial question of law for decision in the second appeal.

In the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., , the Supreme Court has held-

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

In the present case, I find that the substantial question of law Nos. 1 and 2 have been formulated based on no material i.e. neither pleadings nor evidence. Curiously, I find that at the time of argument in the trial Court, learned counsel of the defendants raised such a point which was answered by the trial Court against the defendants and the point was again raised in the appellate Court and the appellate Court also answered the point against the defendants. Surprisingly, neither the trial Court nor the appellate Court carefully examined the pleadings and the evidence of the parties on that point raised on behalf of the defendants. Further, regarding Exbt. 6, the lease deed, the defendants in their pleadings only stated that it was a false and fraudulent deed executed between Lalana Devi and Rakhal Chandra Ghosh and no right conferred by that deed on the plaintiff Rakhal Chandra Ghosh. It is proved that Exbt. 6 was executed between Rakhal Chandra Ghosh and Rani Lalana Devi and thereby Lalana Devi permanently settled A Schedule land in favour of the plaintiff on receipt of Najarana of Rs. 3,000/-. The question of legal necessity while transferring the land by executing Exbt. 6 did not arise since Rani Lalana Devi was the Talukdar (intermediary) of the suit land. Based on Exbt. 6, subsequently, record of right was prepared in the name of the plaintiff and objection raised by the defendants was turned down. Therefore, I find no merit at all in the argument advanced by learned senior counsel, Mr. Bhowmik on the substantial question of law Nos. 1 and 2 and consequently, I find no relevance of referring to decision reported in Satish Chandra Brahma Vs. Bagram Brahma and another, in the facts and circumstances of the case.

On the substantial question of law No. 3, learned senior counsel, Mr. Bhowmik in course of his argument did not put any emphasis rather he concentrated his argument on the point of limitation. It is submitted that the lease deed was executed on 04.10.1958 whereas the suit in the Court of Subordinate Judge was instituted on 16.04.1971 i.e. beyond the period of limitation of 12 years and so, the suit was barred by limitation.

Learned senior counsel, Mr. Chakraborty, on the contrary, has submitted that the plaintiff originally instituted the case in the Court of Sadar Munsiff on 24.05.1969 and the plaintiff was returned by learned Additional Sadar Munsiff on 05.04.1971 with a direction to file it in the appropriate Court and thereafter, it was filed on 16.04.1971 in the Court of Subordinate Judge. So, the plaintiff is protected under the provision of Section 14 of the Limitation Act and the suit cannot be held to be time barred. It is further argued by Mr. Chakraborty, learned senior counsel that the plaintiff and the defendants were in permissive possession of the suit land and thereafter, the original owner Rani Lalana Devi settled the suit land in favour of the plaintiff whereas the defendants remained in the same status of permissive possessor of the suit land before and after the transfer and when the defendants denied to vacate the suit land, the cause of action arose which is in the year 1965 and lastly, in the year 1969. So, there was no question of bar of limitation on the suit of the plaintiff.

The plaintiffs by way of proving the documents established that Rani Lalana Devi was the Talukdar of the suit land and she settled the suit land in favour of the plaintiff by executing Exbt. 6, the permanent lease deed and the right of the intermediary abolished by virtue of the provisions prescribed in Chapter XI of the Tripura Land Revenue and Land Reforms Act and therefore, at the time of settlement operation khatian (Exbt. 9) was prepared in the name of the plaintiff and the plaintiff paid land revenue (Exbt. 10). The appellate Court, therefore, correctly interpreted the provisions of TLR & LR Act that khatian was rightly prepared in the name of the plaintiff after the TLR & LR Act came into force.

On the point of limitation as I find, the trial Court recorded its finding based on materials. I find that the suit was originally instituted in the Court of Sadar Munsiff, Agartala on 24.05.1969. The plaint was returned by the learned Additional Sadar Munsiff by order dated 05.04.1971 (order recorded on the back page of the first page of the plaint). The plaintiffs thereafter filed the suit in the Court of Subordinate Judge on 16.04.1971. In view of the provisions prescribed in Section 14 of the Limitation Act, the plaintiff is entitled to get the exclusion of the time spent for prosecution of the suit in the Court of Munsiff. In the order dated 05.04.1971 passed by learned Additional Munsiff, while returning the plaint, no particular date was fixed by the learned Additional Munsiff for presenting the plaint in the Court of learned Subordinate Judge. So, the entire period from the date of institution in the Court of Munsiff till the date of filing the plaint in the Court of Subordinate Judge shall be excluded from the period of limitation and in that event, the suit is clearly within the period of limitation. Further, I am quite in agreement with the submission of learned senior counsel, Mr. Chakraborty that the defendants were also permissive possessor of the original Talukdar. When the right of the Talukdar was vested on the plaintiffs, the status or position of the defendants remain same i.e. the permissive possessor under the plaintiff. The plaintiff instituted the suit when defendants denied to vacate the suit land. The defendants though raised a plea of adverse possession, but the trial Court has answered it quite positively that the defendants failed to prove the claim of adverse possession since nothing was stated as to from which date the defendants started hostile possession of the suit land denying the title of the rightful owner.

In view of the discussions made above, the second appeal is found to be devoid of any merit.

As I find the litigation originally started in 1969 and in the mean time, 46 years elapsed. The original plaintiff and defendants died. The suit must have an end. The trial Court and the appellate Court arrived at a concurrent finding of the right, title, interest of the plaintiff in the suit land and the trial Court held that the plaintiffs are entitled to get recovery of the suit land. The appellate Court affirmed it. I am of the view that the finding of the trial Court and the appellate Court are based on the pleadings, evidence and reason. In a judicial hierarchy, finality is absolutely important because that gives to the certainty to the law. Since I find no infirmity in the Judgment & Decree passed by the trial Court and the appellate court, I affirm the same and the second appeal stands dismissed with cost.

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