Sasanka Kumar Deb and Others vs Biman Behari De and Others

S.C. Das, J.—1. This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 12.07.2011 and 20.07.2011 respectively passed by the learned Addl. District Judge, North Tripura, Dharmanagar, in Title Appeal No. 06 of 2010 where-under the learned Addl. District Judge upheld the judgment and decree dated 11.01.2010 and 22-01-2010 respectively passed by the learned Civil Judge, Sr. Division, Dharmanagar, North Tripura in Title Suit No. 04 of 2008.

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

"1. Whether the judgment and decree passed in T.S. No. 04/2008 and affirmed in T.A. No. 06 of 2010 is based on inadmissible evidence and the findings thereof are perverse?

Whether the decree in T.S. No. 09 of 2004 was obtained fraudulently and without impleading the necessary party to the suit?"

Heard learned counsel Mr. A. Dasgupta for the appellants and learned Sr. counsel Mr. K.N. Bhattacharjee for the respondent Nos. 1 to 6.

No representation on behalf of the other respondents.

Smt. Rikta Rani Deb, since deceased, the predecessor of appellant No. 1(a) to 1(d) along with appellant Nos. 2, 3 and 4 instituted Title Suit No. 04/2008 in the Court of Civil Judge, Sr. Division, Dharmanagar, North Tripura seeking declaration that the judgment and decree dated 13.07.2007 and 26.07.2007 respectively passed by learned Civil Judge, Jr. Division, Dharmanagar in T.S. 09/2004 was null and void and not binding upon them and further prayed for perpetual injunction restraining the defendants from interfering with peaceful enjoyment of egress and ingress by the plaintiffs and Proforma defendant Nos. 7, 8 and 9 through the suit land described in the schedule of the plaint.

The description of the suit land so far given in the schedule of the plaint reads as follows:--

"SCHEDULE (SUIT PATH)

Vacant land measuring about 2(two) Ganda under Mouza Dharmanagar Town Sub-Registry Office Dharmanagar Under present Khatian No. 3195 corresponding to old Khatian No. 2812 pertaining to R.S. Plot No. 3050, 8050/12091 and 8050/12942 corresponding to R.S. Plot No. 6318p respectively bounded by:--

North:--PWD Road.

South:-- Land of the plaintiffs (shop premises) i.e. R.S. Plot No. 8049, 8048,8047, 8046 & 8045.

East:-- PWD land under R.S. Plot No. 8050 (C.S. Plot No. 6318).

West:-- Land of R.S. Plot No. 8050/12091,8050/12942 corresponding to old C.S. Plot No. 6318p, 6319p.

Wherein lies the ingress and egress path of the plaintiffs and pro-defendant No. 7, 8, 9 into and from their shop premises and dwelling house situated behind the shop premises."

The plaintiffs, inter alia, contended that the plaintiffs and pro-defendant Nos. 7, 8 and 9 on 20.03.1976 purchased different quantum of land from one Churamani Singh and others and their purchased land were recorded in their name in the record of right and separate khatians were opened in the name of the plaintiffs and the pro-defendant Nos. 7, 8 and 9. They constructed their house and shop huts on their purchased land and were living in the houses as well as doing business in the shop huts. To the adjacent north of their purchased land there was a vacant land/khas land belonged to Public Works Department (for short, PWD) of the Govt. of Tripura and further north was PWD road running between Dharmanagar to Churaibari. From 20.03.1976 the plaintiffs and the pro-defendants have been using the vacant land which is the suit land described in the schedule of the plaint as the path way as well as for egress and ingress to their house and the shop huts.

It is the case of the plaintiffs that defendant No. 1 on 05.11.2007 asked the plaintiffs that the defendants got a decree in respect of the suit land described in the schedule of the plaint in T.S. 09/2004 from the Court of Civil Judge, Jr. Division, Dharmanagar and that the suit land has been declared as the Jote land belonged to the defendant Nos. 1 to 6 and that the defendants will raise a building on that land and asked the plaintiffs not to use it as a path way.

It is the case of the plaintiffs that in T.S. 09/2004 the plaintiffs were not made parties by the defendants knowing fully well that the plaintiffs were using the suit land as the only pathway for their egress and ingress. The defendants filed that suit (T.S.09/2004) against pro-defendant Nos. 10 and 11 and obtained the decree fraudulently suppressing the fact that the plaintiffs and pro-defendant Nos. 7, 8 and 9 have been using the suit land as their only path way. The judgment and decree passed in T.S. 09/2004 was not binding upon the plaintiffs since they were not made parties in that suit and therefore, they prayed for declaration that the decree was null and void and not binding on them. They further prayed that the defendants should be restrained from interfering in peaceful possession of the suit land.

Defendant-respondent Nos. 1 to 6 contested the suit by filing written statement, inter alia, contending that Khitindra Mohan De alias Kshitish Mohan De, the predecessor of defendant Nos. 1 to 6 got ownership and possession of the land under old Touji No. 136/11 as per a registered Kabuliat dated 29.01.1326 T.E. Some area of the land was acquired for Assam-Agartala road (Dharmanagar to Bagabasa road) and compensation was allowed to said Khitindra alias Kshitish Mohan Dey. The rests portion of the land remained in the name of Khitindra alias Kshitish which was recorded in C.S. Plot Nos. 6318 and 6319 as khas land and subsequently at the time of revisional survey recorded in plot Nos. 8050/12091 and 8050/12092. Khitindra Mohan De filed a petition under Section 11(3) of the Tripura Land Revenue and Land Reforms (TLR and LR) Act and ultimately filed T.S. 01/1988 in the Court of Munsiff, Dharmanagar in respect of the land of Plot Nos. 6318 and 6319 for correction of the record of rights and the suit was decreed on 29.04.1989 and thereafter as per the decree, Khatian No. 3159 was prepared in the name of the defendants and it was finally published on 30.06.1994. The defendants further contended that the plaintiffs purchased some land to the eastern side land of Plot Nos. 6318 and 6319 but they have no land for their entry into their purchased land and therefore, on the request of the plaintiffs, the defendants allowed them a passage for their entry into their own land and accordingly, a memorandum dated 20.07.1979 was executed by the defendant Nos. 1 to 3 relinquishing some land just at the eastern side of their land which was recorded in revisional survey Plot Nos. 8049 and 8048. The plaintiffs out of greed trying to occupy the land of the defendants and therefore, the suit should be dismissed.

The other defendant-respondents did not file any written statement and the suit was heard ex-parte against Pro-respondent Nos. 7, 8 and 9.

It is submitted that Pro-defendant-respondent Nos. 10 and 11 though appeared did not submit their written statement.

The trial Court considering the pleadings of the parties, framed 8(eight) issues namely--

"i. Is the suit maintainable in its present form and nature?

ii. Do the plaintiffs have any cause of action for filing the suit?

iii. Whether the suit is bad for non-joinder of necessary parties?

iv. Whether the judgment and decree passed by the Ld. Civil Judge (Jr. Division), Dharmanagar, North Tripura, in T.S. 09 of 2004 in fraudulent, void and not binding upon the plaintiffs?

v. Is the suit path a jote land of the principal defendants or Govt. khas land of the P.W.D.?

vi. Whether the suit path is the only means of egress and ingress of the plaintiffs and proforma defendants No. 7, 8 and 9 for their shops and houses?

vii. Are the plaintiffs entitled to the decree as prayed for?

viii. What other relief/relieves the parties are entitled to?"

In course of trial, plaintiff No. 2 Sukhendu Kumar Deb examined himself as P.W.1 and the plaintiff also examined another witness namely P.W.2 Dipak Dey. The plaintiff also proved the following documents in support of their case.

"Exhibit 1 - Sale deed No. 1-1365 of 1976 executed by Churamani Singh and others in favour of Sri Sunirmal Kr. Deb.

Exhibit 2 - Sale deed No. 1-1368 of 1976 executed by Churamani Singh.

Exhibit 3 - Khatian No. 4880 of Dharmanagar Town Mouza.

Exhibit 4 - Khatian No. 3889 of Dharmanagar Town Mouza.

Exhibit 5 - Khatian No. 2216 of Dharmanagar town Mouza.

Exhibit 6 - Khatian No. 4222 of Dharmanagar town Mouza.

Exhibit 7 - Khatian No. 2489 of Dharmanagar town Mouza.

Exhibit 8 - Khatian No. 2489 of Dharmanagar town Mouza.

Exhibit 9 - trace map of Dharmanagar No. 19, Sheet No. 8/part.

Exhibit 10 - trace map of Dharmanagar sheet No. 8/part.

Exhibit 11 - trace map of Dharmanagar No. 19 sheet No. 8/part.

Exhibit 12 - trace map of Dharmanagar No. 19 sheet No. 8/part.

Exhibit 13 - written undertaking of the predecessor of the defendants respecting the use of the suit land.

Exhibit 14 - certified copy of judgment dated 13-07-07 passed by the Civil Judge (Jr. Division), Dharmanagar in T.S. 09 of 2004.

Exhibit 15 - Khatian No. 2812 of Dharmanagar town mouza."

Defendant No. 1 examined himself as D.W.1 and in support of their case proved the following three documents namely-

"Exhibit A- Judgment dated 29/04/89 passed in T.S. 01 of 1988 by the then plaintiff, Dharmanagar.

Exhibit B- Registered power of attorney dated 08/04/2005.

Exhibit C- Khatian No. 3195 of Dharmanagar town Mouza."

12.1 A Survey Commissioner was appointed to have a local inspection of the suit land and the report of the Survey Commissioner has been marked as Exbt. C-1.

The trial Court by impugned judgment and decree dated 11.01.2010 and 22.01.2010 respectively, decided issue Nos. i, ii, iii, v and vi in favour of the plaintiffs but issue No. iv, vii and viii against the plaintiffs and consequently dismissed the suit.

Aggrieved, the plaintiffs preferred Title Appeal No. 6 of 2010 and the learned Addl. District Judge, Dharmanagar by impugned judgment dated 12.07.2011 affirmed the judgment and decree passed by the trial Court and consequently dismissed the appeal. Hence, this second appeal.

Mr. Dasgupta, learned counsel for the appellants has submitted that the suit land as described in the schedule of the plaint is a Govt. khas land recorded in the name of PWD which is openly used by the plaintiffs and pro-defendant Nos. 7, 8 and 9 for the purpose of egress and ingress to their shop and homestead and it was known to the defendant Nos. 1 to 6 whereas the defendant Nos. 1 to 6 instituted Title Suit No. 09/2004 seeking declaration and recovery of possession etc. against pro-defendant Nos. 10 and 11 but the plaintiffs were not made parties in that suit knowing fully well that the plaintiffs were possessing the suit land which was the subject matter of T.S. 9/2004. So the decree of T.S. 09/2004 was obtained by practicing fraud on Court suppressing material facts and hence the trial Court would decide issue No. iv and vii in favour of the plaintiffs and decreed the suit. He has also argued that the defendants admitted in their pleadings that the plaintiffs were using the suit land as their egress and ingress to their house and shops and therefore, there was a document executed on 20.07.1979 which has been proved as Exbt.13. He has also submitted that Khatian No. 2812 was prepared in the name of PWD wherein the land of Plot Nos. 6318 and 6319 were recorded as the land belonged to the PWD and so the case of the defendants that they obtained decree from the Court of Munsiff was a fraudulent decree and that decree cannot create any right of the defendants over the suit land.

Mr. Bhattacharjee, learned Sr. counsel has submitted that the plaintiffs were given a right to use a particular small part of land in the eastern part of defendants'' jote land and the greedy plaintiffs with a view to keep the entire jote land of the defendants, for their use, instituted the present suit falsely claiming that they have been using that land as their path way from 20.03.1976. They have no scrap of paper to show that they have been using that entire land as the path way and there cannot be a perpetual injunction in favour of the plaintiffs since the PWD has not been made a party in the suit and further, if it is a public path way to be used by all, the plaintiffs cannot get a perpetual injunction.

According to the plaintiffs, the defendant Nos. 1 to 6 obtained decree of T.S.9/2004 by exercising fraud on Court since they have suppressed the fact that the subject matter of the suit was a path way used by the plaintiffs. A copy of the judgment of T.S. 9/04 has been exhibited by the plaintiffs as Exbt.14 and it appears that the suit was instituted by the defendant Nos. 1 to 6 against pro-defendant Nos. 10 and 11 seeking declaration and recovery of possession and the suit was decreed partly. That judgment has become final since nobody challenged it. Admittedly the plaintiffs were not made parties in that suit. The plaintiffs since challenged that decree passed by a Court of competent jurisdiction has to show that their right was involved in that suit and decree was passed in that suit affecting the interest of the plaintiffs. The plaintiffs proved Exbt. 13, an agreement between the plaintiffs and defendants which shows that the defendants allowed the plaintiffs to use a small part of the land of the defendants'' jote land for the egress and ingress of the plaintiffs but except that the plaintiffs could not prove any other document to show that they have been possessing the entire land described in the schedule of the plaint as their path way for the egress and ingress to their house and shop etc. from the PWD road.

It is an admitted position that PWD road is running from east to west and to the south of the PWD road the vacant land which the plaintiffs claimed to be the land of PWD is located. Further south is the purchased land of the plaintiffs and pro-defendant Nos. 7 to 9. The defendants claimed that the land between the PWD road and the plaintiffs land is their jote land settled in the name of Lt. Kshitish alias kshitindra and the part of the land was recorded as Khas land and therefore they instituted T.S. 01 of 1988 which was decreed in their favour. A copy of the judgment of T.S. 01/1988 has been exhibited by the defendants marked as Exbt.A which shows that the land of Plot Nos. 6318 and 6319 were the subject matter of that suit which was instituted by the defendants challenging an order passed under Section 11(3) of the TLR and LR Act.

The plaintiffs could not produce any cogent evidence to show that they have been in possession of the entire suit land and were using the same as their path way. Exbt.15 is a Khatian prepared in the name of PWD and the land of Plot Nos. 6318 and 6319 were made a part of that Khatian. There is no entry that the plaintiffs were possessing or using that land as their path way. The defendants proved Khatian No. 3195 as Exbt.C which shows that it was recorded in the name of the defendants as their jote land and the land of Plot No. 8050/12091 arising out of old Plot Nos. 6318 and 6319 had been recorded in the name of the defendants. Since the plaintiffs have failed to show that they have acquired some sorts of right over the suit land, it cannot be said that they were necessary parties in T.S. 09/2004 and for not making them as parties in that suit, the judgment and decree should be declared as null and void. The practicing of fraud should be clearly pleaded and proved by the plaintiffs. I am of considered opinion that the trial Court and the first appellate Court rightly decided that the plaintiffs have failed to prove that the defendants obtained decree in T.S. 9/04 by practicing fraud on Court in any manner. The trial Court held that the plaintiffs are not entitled to get a declaration that the decree passed in T.S. 09/2004 was void and not binding on them but has held that the plaintiffs will be entitled to use the path way for their egress and ingress. The path way which has been described in Exbt.13 i.e. the unregistered agreement, has not been disturbed and so, the plaintiffs cannot be said to have affected in any manner. The defendants got the land recorded in their name pursuant to a decree of the Civil Court in T.S. 01/1988 and subsequently T.S. 09/2004 was instituted for recovery of possession from pro-defendant Nos. 10 and 11 and there is nothing to show that the plaintiffs were in any manner ought to be a party in that suit. There is nothing to show that the trial Court and the appellate Court considered any inadmissible evidence and hence, I find no perversity in the judgment.

The appeal, therefore, stands dismissed.

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