Concurrent findings of fact should not be disturbed in second appeal unless there is a serious infirmity involving substantial question of law.

This second appeal under section 100 of the Code of Civil procedure, 1908 has been admitted for hearing on the following substantial questions of law:-

“(1) Whether the courts below committed error by refusing to accept the oral evidence of the defendant in support of his plea of possession?

(2) Whether the finding of the learned trial judge that, in view of the allotment order passed by the Collector in favor of the vendor of the plaintiff, the oral evidence adduced by the defendant regarding possession was not acceptable, is perverse?”

2. Heard learned senior counsel, Mr. D. Chakraborty, assisted by learned counsel, Mr. H. Laskar for the appellant. No representation on behalf of the respondent.

3. The respondent as plaintiff (hereinafter mentioned as ‘plaintiff’) instituted Title Suit No.3 of 2009 in the Court of Civil Judge(Senior Division), Dharmanagar, North Tripura against the defendant appellant (hereinafter mentioned as ‘defendant’) seeking decree declaring right, title and interest of the plaintiff in the suit land and also for recovery of khas possession of the suit land from the defendant. The Plaintiff inter alia contended that the suit land was allotted in the name of Radharani Nath by the Collector under an order of allotment dated 16.09.1983 and from the date of allotment Radharani Nath was possessing the suit land for continuous ten years. Thereafter she obtained permission from D.M & Collector seeking transfer of the suit land and by executing a sale deed dated 14.10.1993 she sold out the suit land to the plaintiff and handed over possession to the plaintiff. After purchase, the plaintiff mutated the suit land in her name and khatian No.623 of Mouja- Dakshin Padmabil was prepared in the name of the plaintiff. At the time of survey and settlement operation, Khatian was finally prepared in the name of the plaintiff and was finally published. The defendant forcefully dispossessed her from the suit land on 15.09.2003 having no right, title and interest and, therefore, the plaintiff prayed for declaration of her right, title interest and decree of recovery of possession.

4. The defendant contested the suit by filing written statement, inter alia, contending that he had been possessing the suit land from 01.01.1977, constructed his dwelling house on the suit land and living there without any interference from any corner. Radharani Nath managed to get the land allotted in her name keeping him in dark and thereafter sold it to the plaintiff fraudulently. He approached the D.M & Collector and the matter was enquired through the Sub-Divisional Magistrate, Dharmanagar(for short ‘SDM, Dharmanagar’) and SDM, Dharmanagar found the defendant in possession and it was also found on inquiry by the SDM, Dharmanagar that Radharani Nath got allotment without physical possession. The defendant, therefore, prayed for dismissal of the suit.

5. Considering the pleadings of the parties, the trial court formulated nine issues, namely:-

“I. Whether the plaintiff has cause of action to sue the defendant?

II. Whether the suit is maintainable in its present form and nature?

III. Whether the suit is barred by the law of limitation?

IV. Whether the defendant has been possessing the suit land adversely since 1-11-1977 by constructing houses thereon?

V. Whether deed No. 1- 3614 dated 14-10-1993 executed between Smti. Radha Rani Nath and Kadambini Debnath is fraudulent and not binding upon the defendant?

VI. Whether the plaintiff has right, title and interest over the suit land?

VII. Whether the plaintiff has been dispossessed from the suit land by the defendant?

VIII. Whether the plaintiff is entitled to the decree for declaration and recovery of possession by evicting the defendant from the suit land?

IX. Whether the parties are entitled to any other relief?”

6. In course of trial, the plaintiff examined herself as PW.1 and also examined four more witnesses, namely, PW.2, Shri Sudhir Ch. Debnath, PW.3, Shri Manindra Nath, PW.4, Shri Narendra Ch. Roy an