Nivadev and Others vs Amalendu Bhusan Deb

N.G. Das, J.—This Second Appeal is directed against the judgment and decree of the learned District Judge, West Tripura District dated 24.2.1990 passed in Title Appeal No. 19/1989 whereby the learned District Judge affirmed the judgment and decree passed by the learned Additional Sub-Judge on 15.5.89 in Title Suit No. 1/1984 and this appeal is at the instance of the Plaintiffs who lost in both the Courts-below.

The case of the Plaintiffs, shortly put, was that one Radharaman Roy was the original owner of the land appertaining to Khatian No. 7837/Jar 7844 under Mouja Agartala Sheet No. 1. On 23.6.71 Radharaman Roy sold 3 gandas 3 karas 2 krantas 15 dhurs of land with specific boundary to Smti. Devika Dhar Choudhury and Sikha Dhar Choudhury by executing a deed of sale and also delivered the possession thereof to them. This Devika and Sikha subsequently sold this land measuring 3 gandas 3 karas 2 krantas 15 dhurs to Smti. Subarna Prava Deb by executing a registered deed of sale on 17.2.73 and in this registered deed of sale it was indicated that there would be a passage of 41'' x 6'' on the eastern boundary of this land. But even though it was mentioned that there would be a passage of 41'' x 6'' on the eastern boundary land which is bounded on the eastern side by the land of Amalendu Bhusan Deb the vendor actually delivered 3 gandas 3 karas 2 krantas 15 dhurs to Smti. Subarna Prava Deb and at the time when Subarna Prava Deb took possession of the land there was no existence of any passage on the eastern side.

During the Survey Settlement operation this land was measured under two C.S. plots viz. C.S. plot No. 880 under Khatian No. 7837 and C.S. Plot No. 883 under Khatian No. 7844. It was stated that land measuring 2 gandas 2 krantas 12 dhurs was recorded under Dag No. 880 of Khatian No. 7837 and land measuring 1 ganda 3 karas 3 dhurs was measured under Dag No. 883 of Khatian No. 7844. The land was also mutated in the name of Subarna Prava Deb on 12.11.73 under M.R. Case No. 36 and she also possessed the land without any sort of interference until her death.

After the death of Subarna Prava her daughters, namely, the Plaintiffs inherited the said properties. Thereafter, in the year 1974 the Government of Tripura acquired 0.001 acres i.e. 12 dhurs of land from plot No. 880/32136 and 0.005 acres i.e. 1 kara of land from plot No. 883 by issuing necessary notification. But on seeing this notification the Plaintiffs were simply surprised as even though Amalendu Deb had no property appertaining to C.S. Plot No. 880 and the Bata Plot No. 32136, the aforesaid notification was issued showing that he was also owner of the aforesaid plots. The Plaintiff, therefore, filed some objection to the Land Acquisition Collector. But they did not get their grievance redressed.

It was alleged that the Plaintiffs being women the Defendant who is a man of desperate nature took the advantage and forcibly removed the compound fencing of the northern and eastern side sometime in the month of March, 1981 and forcibly constructed a passage on the eastern portion of the plot of 880 and 883 and thereafter constructed a pucca boundary wall over the plot No. 880 and plot No. 883 ignoring the protest of the Plaintiffs. The Plaintiffs also approached the local P.S. but got no redress. It was alleged that Defendant encroached the land described under Schedule ''B'' attached to the plaint by force and also succeeded in getting compensation of the acquired land measuring 12 dhurs which was shown under Bata Plot No. 32136 created by Settlement Department behind the back of the Plaintiffs and in collusion with the Defendant. It was stated that the Plaintiffs are absolute owners of the suit land described under Schedule ''B'' to the plaint and accordingly they prayed for recovery of khas possession of the suit land.

The Defendant resisted the suit by filing a written statement denying all the material averments of the plaint. It was contended further that Devika Dhar Choudhury and Sikha Dhar Choudhury also sold the land measuring 1 kara 9 dhurs to the Defendant by a registered deed of sale dated 17.2.73 where the Plaintiff No. 1 also put her signature as one of the attesting witnesses and she was fully aware of the sale deed where the existence of the pathway was clearly mentioned. After this purchase the land was mutated in the name of Defendant with a new dag No. being 880/32136. Thereafter, some portion of the path-way was acquired by the Government and the answering Defendant also got compensation for that part of the land and at that time also mother of the Plaintiffs never raised any sort of objection. The Defendant therefore, prayed for dismissal of the suit with costs.

Upon the pleadings the learned trial Court framed 7 issues in all including the issues viz. Whether the Plaintiffs are the owners of the suit land and whether it is a path-way.

The learned trial Court appointed a Pleader Commissioner to ascertain whether the suit land appertained to Dag No. 880 and 883 and whether it was attracted by the sale deed of Plaintiffs and whether any path-way was recorded in the map dated 6.2.74. The Pleader Commissioner submitted his report along with the map and field book delineating the position of the path-way and the position of the survey plots over which this path-way is situate. Learned trial Court accepted this report and after deciding the issues dismissed the suit. The Plaintiffs preferred an appeal and lost the same and hence, this Second Appeal.

Before entering into the rival contentions it is necessary to mention here that during hearing of this appeal Mr. A.K. Bhowmik, the learned senior counsel appearing on behalf of the Appellants submitted an application for amendment of the plaint as it was pointed out by the learned trial Court in its judgment that even though the Plaintiffs prayed for a decree for recovery of possession they did not make any prayer for a decree declaring their title to the suit land. In course of the arguments Mr. Bhowmik, however, did not press this petition seriously as it was beyond time. However, his contention was that even though the Plaintiffs did not make any specific prayer for a decree declaring their title to the suit land the suit could have been very well decreed as without deciding the question as to whether the Plaintiffs were owner of the suit land no decree for khas possession can be passed. The suit was, however, dismissed not only because of this ground, but because of the fact that the Plaintiffs could not prove that the Defendant dispossessed them of the suit land or that Defendant encroached upon any portion of the land belonging to the Plaintiffs.

It has, however, been contended by Mr. Bhowmik that learned Courts below committed error of law in accepting the report of the Pleader Commissioner which suffers from so many infirmities. In drawing my attention to the report of the Pleader Commissioner vis-a-vis the finding of the trial Court it has been submitted by Mr. Bhowmik that the Commissioners report was accepted partially and as such no reliance can be placed on the report of the Pleader Commissioner. But the learned Counsel for the Appellants could not show any specific infirmity in the report calling for interference by this Court.

In this context, it is necessary to mention here that kabala dated 17.2.73 by dint of which Subarna Prava the mother of the Plaintiffs purchased land measuring 3 gandas 3 karas 2 krantas 15 dhurs of C.S. Plot No. 880 and C.S. Plot No. 883 from Devika Dhar Choudhury and Sikha Dhar Choudhury shows the existence of a path-way measuring 41'' x 6'' on the eastern side of the land. It was specifically mentioned in the schedule of the land that the land so sold is bounded on the eastern side by Amalendu''s path-way measuring 41'' x 6''. On the same date i.e. 17.2.73 the Defendant also purchased the land measuring 1 kranta 9 dhurs from the aforesaid Devika Dhar Choudhury and Sikha Dhar Choudhury by a registered deed of sale marked as Ext. ''F/l'' The recitals of this Ext. '' F/1'' sale deed clearly show that this 1 kranta 9 dhurs of land is a part of 3 gandas 3 karas 2 kranta 15 dhurs. This Ext. ''F/l'' sale deed further shows that Plaintiff Niva Deb is one of the attesting witnesses. It is, therefore, clear from the recitals of this two sale deeds which were executed on the same date that 1 kara 9 dhurs which Defendant purchased from the same vendors is a part of the lands which the Plaintiffs purchased from Devika and Sikha.

This being the factual position, the Plaintiffs cannot claim any title to the land measuring 1 kara 9 dhurs which the Defendant purchased from the same vendors on the same date. It is in the evidence that Defendant also got possession of his purchased land and both the Courts below after discussing the evidence on record found that Defendant got possession of his purchased land. On going through the evidence of Plaintiff Niva Deb who was examined as P.W. 1. I find that during cross-examination it was elicited from her that she perused the sale deed Ext. 1. It has already been stated above that Ext. 1 sale deed clearly mentioned that there would be a path-way measuring 41'' x 6'' on the eastern side of the (Sic).