Pratul Nandi @ Putul Nandi vs Sobha Rani Bhattacharjee and Others

J.N. Sarma, J.—At the time of admission of this appeal, no substantial question of law was formulated. Today when the matter came up for hearing, it was pointed out that this appeal cannot be heard without any substantial question of law and is to be thrown out on that ground alone in view of the decision of the Apex Court in Panchugopal Barua and others Vs. Umesh Chandra Goswami and others, wherein the Supreme Court pointed out in paragraph 7, inter alia, as follows:

A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the section shows that nothing shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal or any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. The proviso presupposes that the Court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a "substantial question of law" is thus, the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 Code of Civil Procedure.

Thereafter, after hearing the learned Counsel for the parties, only one substantial question of law was formulated and that is as follows:

(1) Whether the Plaintiff failed to discharge the burden to establish the title having failed to produce the Kabala?

i.e., the question highlighted in paragraph -12 of the memo of Appeal.

I have heard Mr. S. Deb, learned Sr. Counsel and Mr. A.C. Bhowmik, learned Counsel for the Appellant, and Mr. D.K. Bhattacharjee, learned Counsel for the Respondents.

Sri Deb strenuously urges that the concurrent finding of fact arrived at by the Courts below regarding title is erroneous and the same is liable to be set aside. Before going to that aspect of the matter, let us look at the plaint to decide this aspect of the matter. In paragraph 1 to 5 of the plaint, it is stated, inter alia, as follows:

That the land described in the schedule A below belonged to Satyaranjan Bhattacharyya in jote right and the same was recorded in his name in Khatian No. 1 37 and as plot Nos. 1137 and 1138 of Mauja Luxmipur under Teliamura T.K. and P.S. and he was regularly paying the land revenue of the said land.

That Satyaranjan Bhattacharyya constructed houses in north east part of plot No. 1137 and resided there with his family, planted various fruit bearing trees and possessed the rest land by growing paddy and other seasonal crops.

That in August 1979 the Maharanipur School authority dispossessed Satyaranjan Bhattacharyya from about 2 gandas of latnd lying to the Western most part of plot No. 1137 by cutting many trees and earth and amalgangated (amalganted) that land with the school field. For that land Plaintiffs have field T.S. No. 20/86 in this Hon''ble Court, which is still pending

That some members of the gaon sabha and Nyay Panchayat and the Defendant and Jitendra Sarkar instigated and assisted the Headmaster of the Maharanipur High School for dispossessing Satyaranjan Bhattacharyya from above mentioned 2 gandas of land and few days after on 5.9.79 the Defendant taking advantage of the illness of Satyaranjan Bhattacharyya and minority of his sons dispossessed him from B Schedule land, which is a part of A schedule land denying the title of Satyaranjan Bhattacharyya and is possessing the same wrongfully and is enjoying the usufruct of the same illegally.

That during the Revisional Survey the Defendant managed in collusion with the settlement staff to get his name recorded in column No. 24 as permissive possessor. That record is wrong and without any basis or jurisdiction. Satyaranjan Bhattacharyya never permitted the Defendant to possess the B Schedule land or transferred the same to him. He is a treposser in the B Schedule land is liable to be evicted from that law and is bound to pay mesne profit for that land.

The Defendant filed written statement and in paragraphs 10, 11 and 13 there are vague denials. Their whole case was that this land was not in the jote of Satyaranjan Bhattacharyya.

In order to establish that this land was included in the jote of Satya Ranjan Bhattacharyya the Plaintiff produced Exbt. 1 series and 2 Ext. 1 is land revenue paying receipts showing the payment of rent by the Plaintiff, Satya Ranjan Bhattacharjee for the year 1980 and 1988. In these rent receipts, the number of Holding is mentioned and the area of land is mentioned. Ext. 2 is a Khatian prepared under the Tripura Land Revenue and Land Reforms Act, 1960 and in that document also the name of the Plaintiff appears with other particulars with regard to the land. A document was filed, which is Ext. B, by the Defendant and even in that document also the name of the Plaintiff appears as owner/holder of the land under the Tripura Govt.

Having considered these documents, trial Court decreed the suit, but rejected the prayer for recovery of khas possession. There was an appeal before the appellate Court being title Appeal No. 6 of 1990 with regard to the rejection of the prayer of the Plaintiff for recovery of the khas possession. It was an appeal against that part of the decree by which the Plaintiff''s right to get recovery of khas possession was rejected by the trial Court and the lower appellate Court considered the matter afresh and having found that the Plaintiff established his title passed the necessary decree for recovery of khas possession. Hence this Second Appeal.

What can be said is this that when the Trial Court decreed the suit for declaration of title, the Defendant did not prefer an appeal and that finding of the trial Court shall be binding on the Defendant and in the Second appeal, the Defendant now cannot make a turn and challenge that finding. That finding of the trial Court will be binding on the Defendant and the Defendant cannot be heard or cannot question the title of the Plaintiff having remaining satisfied with that part of the decree.

Be that as it may, I gave a long hearing to Sri Deb. His submission is that Ext. 1 series and Ext. 2 and Ext. B are not the documents of title and they cannot establish the title of the Plaintiff, before we go to that, let us have a look at Section 43 of the Tripura Land Revenue and Land Reforms Act, 1960. Section 43 its entirety is quoted below:

(1) When a record of right has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be made during the period of such publication, to any entry therein or to any omission therefrom.

(2) When all objections have been considered and disposed of in accordance with the rules made in this behalf the survey officer shall cause the record to be finally published in the prescribed manner.

(3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct.

So there is presumption created by law that every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct and the burden was on the Defendant to prove the contrary in the trial. That burden was never discharged rather by filing their own document they showed that the Plaintiff had the right and title to the land as would be evident from Ext. B itself.

Mr. Deb placed reliance of the following decision : (1) Corporation of the City of Corporation of the City of Bangalore Vs. M. Papaiah and Another, That is the case which rather goes against the advocate for the Appellant. In paragraph 5 it was pointed out that the revenue records are not documents of title and the question of interpretation of a document not being a document of title is not a question of law. (2) The next case relied on by Sri Deb is Smt. Sawarni Vs. Smt. Inder Kaur and Others, . In that case, the Supreme Court pointed out that if the finding of the Trial Court is based on material on record and substantiated by reason and that is upheld by the appellate Court, then the decree passed by the trial Court as well as by the appellate Court cannot be reversed by the High Court in exercise of power u/s 100 CPC on the ground of mutation entry. That case also is of no help to the Appellant. (3) The next case relied upon by Sri Deb is Jattu Ram Vs. Hakam Singh and others, . That was a case with regard to the entries in the Punjab Land Revenue Records and there entry was made by the Patwari only for the fiscal purpose and the Supreme Court pointed out that such entry will not create a title in favour of a party and that case does not help the Appellant inasmuch as referred in Section 43 of the Tripura Land Revenue and Land Reforms Act, 1960, it is not an entry made by the some Patwari for the fiscal purpose. Chapter-V itself will show that land records are prepared by the Survey officer and there is also a presumption created by the statute itself. (4) The next case relied on by Sri Deb is Chandra Kanta Deka and Ors. Appellants v. Hem Chandra Deka and Ors. Respondents reported in AIR 1979 Gau 55. That was a case where a finding regarding possession was arrived at on the basis of land revenue paying receipts. The finding of the Court is as follows:

The land revenue receipts do not ipso facto prove actual possession of the land in favour of the holder of the receipts.

But in this particular case as I have already pointed out that the revenue paying receipt from 1980, area of land and other particulars are there and there is no reason why they cannot be considered as piece of evidence to prove the title of a party. By themselves, it would not be sufficient to establish the title, but coupled with other documents or with other materials it can be considered as a piece of evidence, that is what has been done by the Courts below.

That being the position, there is no merit in the Second appeal and the same is dismissed with costs all throughout. Stay order passed earlier shall stand vacated.