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2015 Supreme(Tri) 39
IN THE HIGH COURT OF TRIPURA, AGARTALA
U.B. SAHA, J.
Kanu Chandra Deb – Plaintiff/Appellant
Vs.
Ranibala Choudhury & Ors. – Defendant/Respondents
RSA 24 of 2006
Decided On : 22.01.2015
Advocate Appeared:
For the appellant :Mr. A. K. Bhowmik Sr. Advocate
For the respondents:Mr. D.C. Roy Advocate
Possession is a crucial factor in property disputes, and the failure to prove possession can result in the refusal of injunction.
Headnote:
Possession - Property Dispute - TLR & LR Act - [Section 43(1), Specific Relief Act] - The court discussed the plaintiff's right, title, and interest over the suit land, the validity of sale deeds, and the possession of the defendant. The court found that the plaintiff acquired right, title, and interest over the suit land and declared his right over a portion of the land. However, the court refused to grant perpetual injunction as the plaintiff failed to prove his possession over the entire suit land.
Fact of the Case:
The plaintiff filed a suit for declaration of his title over the suit land and for a decree of perpetual injunction against the defendant. The defendant claimed that the suit was vexatious and barred by res judicata, and that the plaintiff had no possession over the land.
Finding of the Court:
The court found that the plaintiff acquired right, title, and interest over the suit land and declared his right over a portion of the land. However, the court refused to grant perpetual injunction as the plaintiff failed to prove his possession over the entire suit land.
Issues: 1. Suit maintainability 2. Plaintiff's right, title, and interest over the suit land 3. Entitlement to a decree of perpetual injunction 4. Other relief under laws and equity
Ratio Decidendi: The plaintiff acquired right, title, and interest over the suit land, but failed to prove his possession, leading to the refusal of perpetual injunction.
Final Decision: The second appeal was dismissed as the court found that the plaintiff was not in possession of the suit land and therefore not entitled to perpetual injunction.
1. This second appeal is directed against the judgment and decree dated 26.4.2006 passed by the learned Additional District Judge, Belonia, South Tripura in Title Appeal No. 6 of 2006 affirming the judgment and decree of dismissal dated 17.1.2006 passed by the learned Civil Judge (Jr. Division), Belonia, South Tripura in Title Suit No. 27 of 2003.
2. Heard Mr. A.K. Bhowmik, learned Sr. Counsel appearing for the appellant as well as Mr. D.C. Roy, learned counsel for the respondents.
3. The present respondents are the legal heirs of the original defendant-respondent, Nakuleshwar Choudhury.
4. The plaintiff appellant, hereinafter referred to as plaintiff, had filed the suit against the defendant Nakuleswar Chowdhury, for declaration of his title over the suit land and also for a decree of perpetual injunction restraining the defendant and his men and agents from entering into the suit land and also not to disturb his peaceful possession and enjoyment of the suit land by him.
5. The facts of the case, in a short compass, are that the plaintiff by two separate deeds of sale purchased the suit land from Amulya Das, Jnanada Sundari and Braja Basi Goldar. Total area of land is measuring 1 kani 7 gandas, equivalent to 0.540 acres of land out of the total 1.396 acres of land. Thus, he had become the owner and possessor of the same. In the year 1987, he filed a case for declaration of his title and for permanent injunction against the defendant and during the trial of that case, the defendant of the instant suit filed a prayer for restraining the plaintiff from entering into the suit land or disturbing the peaceful possession and enjoyment of the said suit land by the defendant. The injunction was granted by the then learned Munsiff and the said order was kept upheld by the appellate authority except some portion of the land. Meanwhile, the revision of Cadestral Survey Operation began and the plaintiff filed a prayer for mutation of his name in place of the vendor Amulya kumar Das and Jnanada Sundari Das. But the said prayer was rejected on the ground that the plaintiff was having no possession over the said land. The plaintiff further pleaded that as he was then injuncted by the order of the learned Munsiff, he could not prove his possession over his purchased lands and consequently, his prayer was rejected. Thereafter, the said suit was mitigated in between the parties and the plaintiff sold out 0.046 acres of land out of 0.58 acres of land. But the defendant got mutation for the whole land i.e. for 0.058 acres of land. The difference is 0.012 acre of land which the plaintiff did not sell out to the defendant.
6. It is stated that on 9.11.2003 at about 10/10.30 a.m. the defendant with an ulterior motive tried to dispossess the plaintiff from 0.012 acre of land for which, the plaintifffiled the suit for declaration of his right, title and interest over the suit land and also for a decree of perpetual injunction restraining the defendant from entering into the suit land and also from disturbing his peaceful possession over the suit land.
7. Upon receipt of the summons issued by the learned Civil Judge, junior division, Belonia, South Tripura, the defendant appeared and filed his written statement stating, inter alia, that the suit of the plaintiff is vexatious, frivolous and for harassing him and the suit is barred by law of resjudicata and that the plaintiff after disposition of the land having notice of the mutation proceeding appeared in person and no objection was given in respect of the prayer of the defendant made therein and as such, in absence of possession, the plaintiff cannot get a decree of permanent injunction. He accordingly prayed for dismissal of the suit with costs.
8. On the basis of the pleadings of the parties, the learned trial court framed the following issues:
1. Is the suit is maintainable in its present form?
2. Has the plaintiff right, title and interest over the suit land?
3. Is the plaintiff entitled to a decree
