Pradip Kumar Deb and Others vs Kiran Bala Debnath and Others

S.C. Das, J.—1. This second appeal, under Section 100 of the Code of Civil Procedure is directed against judgment and decree, dated 17.09.2011, passed by learned Additional District Judge, Court No. 3, West Tripura, Agartala in Title Appeal No. 40/2003.

The second appeal has been admitted for hearing on the following substantial questions of law:-

i. Whether the findings of the first appellate court in the judgment and decree dated 17-9-11 in T.A. No. 40 of 2003 is perverse?

ii. Whether the first appeal was abated for the death of respondent No. 4?

Heard learned counsel Mr. P.K. Dhar for the appellants and learned counsel Ms. P. Dhar for the respondent Nos. 1 to 5 and learned counsel, Mr. D. Bhattacharjee for the respondent Nos. 9 to 23.

Probodh Chandra Deb, the predecessor of the appellants, as plaintiff (here-in-after mentioned as plaintiff) instituted Title Suit No. 3/2002 in the Court of learned Civil Judge, Sr. Division, Court No. 1, Agartala, West Tripura seeking decree declaring his right, title, interest in the suit land and also decree for recovery of possession of the suit land described in schedule of the plaint measuring 6 kanies, 2 karas, 6 dhurs (2.41 acres).

The plaintiff, inter alia, contended that he got the suit land by purchase and got physical possession of the suit land from his vendors. He developed the suit land and was possessing the same by doing various acts of possession. His purchased land was recorded in Khatian No. 616/1, 616/2, 616/3 and 616/4 and he paid land revenue to the Government. In 1979 he instituted Title Suit No. 43/1979 against some of the defendants seeking declaration of his title and confirmation of possession and perpetual injunction and that suit was renumbered as T.S. 29/1985 the that suit was decreed ex parte against the defendants by the learned Sub Judge by judgment and decree dated 31.08.1991 and his right, title, interest and possession was declared in respect of the suit land measuring 1.04 acres and that judgment was never challenged by the defendants. The plaintiff was possessing the land and on 07.02.1994, the defendants dispossessed the plaintiff from the suit land and hence, the plaintiff instituted the suit for declaration as well as for recovery of possession.

Defendant No. 11 Usha Rani Debnath i.e. the respondent No. 24 herein, only contested the suit by filing written statement. The suit was directed ex parte against the other defendants.

Defendant No. 11 i.e. respondent No. 24 by filing written statement, inter alia, contended that she and her father had been possessing the suit land from 1953 and they constructed their house and living thereon. They also planted trees and cultivated the land which was in their possession. She further contended that the plaintiff falsely claimed the suit land and that in the earlier suit the plaintiff subsequently prayed for recovery of possession and thereby admitted that the plaintiff was dispossessed by the defendants. She denied the averments made in the plaint and prayed for dismissal of the suit.

The trial Court considering the pleadings of the parties, framed four issues namely--

Has the plaintiff right, title and interest over the suit land?

Is the story of dispossession of the plaintiff by the defendants true?

Is the suit barred by limitation?

Is the plaintiff entitled to decree for declaration of title and recovery of the possession as prayed for?

The plaintiff examined himself as P.W.1 and examined three more witnesses namely - Sri Ramjoy Mitra, P.W.2; Satya Prasanna Bhattacharjee, P.W.3 and Sukumar Chakraborty, P.W.4 respectively.

The plaintiff also proved the following documents:-

Ext.1 Sale-deed No. 1-6206, dated 5.5.1970.

Ext.2 Sale-deed No. 1-2462, dated 23.3.1979,

Ext.3 Sale-deed No. 1-3615, dated 12.4.1979,

Ext.4 (series) certified copies of the Khatian No. 616/1, 616/2, 616/3, 616/4 of Mouja-Gandhigram.

Ext.5 land revenue receipt of the suit land for the year 1407 BS and prior to that.

Ext.6 certified copy of the Judgment of T.S.43/79 (TS 29/85).

Defendant No. 11 examined herself as D.W.1 and also examined 3(three) more witnesses namely--Alo Acharjee, D.W.2; Sri Sanjib Acharjee, D.W.3; Sikha Rani Natta, D.W.4 respectively.

She also proved following two documents:-

Ext.A - certified copy of the petition of the present plaintiff in TS 43/1979.

Ext.B - certified copy of the order dt. 7.1.1985 of Munsiff Sadar, Agartala in T.S.43/1979.

The trial Court considering the pleadings and the evidence on record decided the issues in favour of the plaintiff and accordingly decreed the suit.

Defendant Nos. 1, 2, 3, 12 and 13 who did not contest the suit, filed Title Appeal No. 40/2003 in the Court of District Judge and during pendency of the appeal, the plaintiff died and his legal heirs i.e. the present appellants were arrayed as respondents. Defendant No. 11 Usha Rani Debnath, who contested the suit in the trial Court did not file any appeal and she was arrayed as respondent in the first appeal. The appellate Court by impugned judgment dated 17.09.2011 allowed the appeal partly and thereby upheld the judgment and decree passed by the trial Court in respect of title of the plaintiff in the suit land but set aside the decree of the trial Court in respect of recovery of possession of the suit land.

Learned counsel, Mr. Dhar at the very outset of his argument submitted that the appellants does not like to insist substantial question of law No. (ii) and insisted on substantial question of law No. (i). It is submitted by Mr. Dhar that the plaintiff proved his title deeds which are marked as Ext. 1 to 3 and the plaintiff also proved the Khatians prepared in his name which are marked as Ext.4 series. The trial Court as well the appellate Court concurrently held that the plaintiff has got title over the suit land. The trial Court passed decree of recovery of possession but the appellate Court wrongly and illegally interfered in the decree and set aside the judgment and decree in respect of recovery of possession. According to Mr. Dhar, the appellate Court did not consider the oral and documentary evidence adduced and arrived at a wrong finding.

On the other hand, learned counsel, Ms. P. Dhar and learned counsel, Mr. D. Bhattacharjee appearing for the respondents, as indicated hereinbefore, submitted that the plaintiff''s story of dispossession from the suit land on 07.02.1994 is a false story which has been rightly disbelieved by the appellate Court. Both the learned counsel put emphasis on Ext.A and Ext.B and submitted that the plaintiff in the earlier suit i.e. T.S.43/1979 which was renumbered as T.S.29/1985 (hereinafter mentioned as T.S. 29/85) submitted application marked Ext.A seeking amendment of the plaint and thereby sought recovery of possession and that prayer of the plaintiff was allowed by Order dated 07.01.1985 which has been proved as Ext.B. So, while the plaintiff himself amended the plaint seeking recovery of possession, the plaintiff subsequently cannot take advantage of the ex parte decree passed in that earlier suit and claimed recovery of possession alleging that the plaintiff was dispossessed from 07.02.1994.

It is an admitted position that the plaintiff has got title over the suit land. A part of the suit land i.e. land measuring 1.04 acre was the subject matter of the suit in T.S.29/85 which is also an undisputed fact. T.S.29/85 was decreed ex parte and certified copy of that judgment and decree has been proved as Ext.6. The relevant part of that judgment and decree reads as follows:-

"Hence the suit is decreed ex-parte.

The plaintiff is entitled to have the declaration of his jote right over the suit land and he is also entitled to have the declaration of confirmation of his possession over same.

The defendants are hereby perpetually restrained from entering into the suit land and from taking any step with a view to dis-possessing the plaintiff therefrom.

The defendants shall have to bear the cost of the suit."

The defendants of T.S.29/85 never challenged that ex parte decree. It is an admitted position that defendant No. 11 Usha Rani Debnath of the present suit T.S.3/2002 was a party in the earlier suit. She took the plea that in the earlier suit the plaintiff prayed for recovery of possession but the judgment and decree of the earlier suit i.e. T.S.29/85 does not show that there was any prayer of recovery of possession. The judgment and decree was passed on 31.08.1991. Admittedly, Ext.A, the petition was filed before the date of judgment and decree and Ext. B order was also passed before the date of judgment and decree dated 31.08.1991. So, the defendant-respondents cannot gain any advantage of the said Ext.A and B since the ultimate result of the earlier suit was that the right, title, interest and possession of the plaintiff was declared in respect of 1.04 acres of land which is a part of present suit land and the defendants of that suit were perpetually restrained from entering into the suit land and from taking any step with a view to dispossess the plaintiff.

The plaintiff in his pleading contended that after his purchase of the suit land it was recorded in the ROR in his name and Khatians (Ext.4 series) were prepared in his name. In his pleadings, the plaintiff contended that some of the defendants in collusion with the Settlement staff recorded their name as a forceful occupier in respect of some of the plots of the land but they have no possession over those plots. In the present suit except defendant No. 11 i.e. the respondent No. 24 herein, other defendants did not contest the suit and did not file any written statement as to from which date they have been possessing the suit land or when they entered into possession of the suit land. In Ext.4 series, there is nothing to show that defendant No. 11, Usha Rani Debnath was a forceful occupier of any plot of land. While the plaintiff instituted the suit for recovery of possession based on title, the suit is covered by the provisions prescribed in Article 65 of Schedule-1 of the Limitation Act. The plaintiff has to prove that he has title and he has been dispossessed from the suit land. The defendants did not claim adverse possession from any particular point of time. The plaintiff contended that he has been dispossessed from 07.02.1994. The judgment and decree in T.S. 29/85 passed on 31.08.1991 makes it clear that in a part of the suit land right, title, interest and possession of the plaintiff was declared and the defendants were restrained from interfering in that part of the suit land. The contesting respondents of the present appeal have neither contested the earlier suit nor the present suit by filing any pleadings or adducing evidence. Based on the pleadings and evidence of defendant No. 11, learned counsel Ms. P. Dhar and learned counsel, Mr. D. Bhattacharjee tried to make out a case but in the absence of any pleadings and evidence adduced by those defendant-respondents no case could be made out.

A civil suit has to be decided on preponderance of probabilities taking into account the pleadings and evidence on record of both side. As already stated earlier, the present contesting respondents i.e. the respondent Nos. 1 to 5 who were arrayed as defendant Nos. 1, 2, 3, 12 and 13 respectively in the Title Suit (T.S. 3/02) and the respondent Nos. 19 to 23, the legal representatives of defendant No. 10 of that suit neither submitted any written statement nor adduced any evidence, cannot take any advantage of contesting the appeal simply based on the pleadings and evidence of defendant No. 11. Defendant No. 11 has not been found as a forceful occupier of the suit land in any plot so far as Ext.4 series are concerned. Once the plaintiff has proved his title and the plaintiff made specific assertion that he has been dispossessed from the suit land in the year 1994 i.e. on 07.02.1994 and adduced oral evidence in support of such dispossession, the appellate Court would consider that oral evidence in respect of dispossession and upheld the decree passed by the trial Court. As I find, the trial Court also did not properly construe the evidence on record. The trial Court taking into consideration Ext.A and B arrived at a finding that the plaintiff was not in possession at the time of ex parte decree of T.S. 29/85. The trial Court failed to appreciate the fact that Ext. A and B should not be taken into consideration in view of the ex parte judgment and decree passed in T.S. 29/85 by a Court of competent jurisdiction. The judgment and decree only shall prevail. An interim order or an application filed in the suit during the course of trial cannot be taken into consideration over and above the judgment and decree which is the final result of the suit. Once the judgment and decree is passed by a Court of competent jurisdiction, that shall prevail and in any subsequent suit based on any petition filed in the suit during the course of trial no decision can be taken in a subsequent suit on the same subject matter.

The judgment passed by the appellate Court is quite shocking. The learned Addl. District Judge has utterly failed to take into account the evidence on record and made observation without referring to the pleadings and evidence on record which was totally uncalled for. The judgment passed by the learned Addl. District Judge in T.A.40/03 cannot be termed as a judgment according to law.

The plaintiff examined himself as P.W.1 and examined three more witnesses. They were cross examined, but on behalf of the contesting defendant No. 11. The plaintiff and his witnesses made specific and clear statement that the plaintiff was dispossessed in the year 1994. And some of the witnesses specifically stated the date of dispossession. I do not understand how the trial Court and the appellate Court ignored the oral evidence of P.Ws 1 to 4 in respect of dispossession of the plaintiff from the suit land. While a decree was passed by a Court of competent jurisdiction restraining the defendants from entering into possession of the suit land, the defendants cannot claim that they were still in possession of the suit land even after that decree and in that case burden lies on them heavily to prove their possession. Unfortunately, the present contesting defendant-respondents adduced no pleadings and no evidence. The defendant No. 11 who alone contested the suit, though claimed that she and her father possessing the suit land from 1953, but did not make any claim of adverse possession. She, therefore, could not claim any advantage about any entry in the Khatians. The present defendant-respondents since did not adduce any pleadings and evidence to justify the entry in the record of right as a forceful occupier cannot resist the claim of the plaintiff of his prayer of recovery of possession.

In view of the discussions made above, I am of considered opinion that the plaintiff has proved his case with all preponderance of probabilities and the plaintiff was entitled to get recovery of possession of the suit land.

The trial Court rightly decreed the suit in favour of the plaintiff and it is restored and upheld.

The judgment and decree, dated 17.09.2011 passed by learned Addl. District Judge, Court No. 3, West Tripura, Agartala in T.A. 40/03 is set aside.

Parties to bear their own costs.

The appeal is accordingly allowed.

Prepare appellate decree accordingly.

Send back the L.C. records along with a copy of this judgment.