Back
2015 Supreme(Tri) 484
IN THE HIGH COURT OF TRIPURA AGARTALA
S.C. DAS, J.
Prasanna Kapali – Appellant
Versus
Rabindra Kapali – Respondent
R.S.A. No. 65 of 2011
Decided On : 6.7.2015
Advocate Appeared:
For the Appellant: Mr. A. Lodh & Mr. M. Dutta.
For the Respondent: Mr. S. Bhattacharji & Mr. S.K. Patari.
The main legal point established in the judgment is that the evidence on record must be properly considered, and the absence of any transfer deed renders the claim of the defendants regarding the purchase of the land of no consequence.
Headnote:
Evidence - Land Dispute - Code of Civil Procedure, 1908 - Section 100 - Non-consideration of evidence on record - Title Suit No. 4 of 2009 - Khatian No. 120/2 of Mouja Uttar Machmarra - Evidence, Oral and Documentary - Perverse Finding
Fact of the Case:
The plaintiffs filed a suit for declaration of their right, title, and interest in a land and for recovery of possession against the defendants. The defendants claimed that there was an amicable partition and that the father of the defendants purchased the suit land in 1984. The trial court decreed the suit in favor of the plaintiffs, which was upheld in the first appeal.
Finding of the Court:
The court found that the evidence on record, both oral and documentary, was properly considered by the lower courts and there was no perverse finding. The court also rejected the argument of non-joinder of necessary parties and dismissed the second appeal with costs.
Issues: Non-consideration of evidence on record, non-joinder of necessary parties, and alleged perversity in the lower courts' findings.
Ratio Decidendi: The court held that the evidence on record was properly appreciated, and there was no merit in the argument of non-joinder of necessary parties. The court also found no perversity in the lower courts' findings.
Final Decision: The second appeal was dismissed with costs.
S.C. DAS, J.
1. This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, has been admitted for hearing on the following substantial question of law :
“1. Whether non-consideration of the evidence on record itself can be considered as perverse and as to whether such perversity itself liable the impugned judgment?”
2. Heard learned counsel, Mr. A. Lodh for the appellants and learned counsel, S. Bhattacharji for the respondents.
3. The respondents as plaintiffs (hereinafter mentioned as ‘plaintiffs’) instituted Title Suit No. 4 of 2009 in the Court of Civil Judge, Junior Division, Kanchanpur, North Tripura, interalia, praying for declaration of their right, title and interest in the suit land and for recovery of possession against the appellants herein, arraying them as defendants (hereinafter mentioned as ‘defendants’).
4. In their plaint, the plaintiffs, interalia, contended that their father, Kumud Chandra Kapali and the father of the defendants, Prafulla Kapali were full blood brothers and Kumud Chandra Kapali died on 23.03.2002. Prafulla Kapali died in the year 2001. During their lifetime they had been residing in the separate homestead with their respective family members and in separate mess. The suit land described in the schedule of the plaint belonged to Kumud Chandra Kapali. On 15.05.1990 Prafulla Kapali, father of the defendants, being very poor, approached Kumud Chandra Kapali and made a request to cultivate the suit land and accordingly, being full blood brother, Kumud Chandra Kapali had given consent to the proposal made by the father of the defendants and accordingly, Prafulla Kapali started cultivation of the suit land being a permissive possessor. In the record of right, i.e., in Khatian No. 120/2 of Mouja Uttar Machmarra, the name of Prafulla Kapali was recorded as permissive possessor of the suit land. After death of Prafulla Kapali in the year 2001, the plaintiffs requested the defendants to vacate the suit land and to handover possession of the suit land to them with a view to cultivate the land, but the defendants did not vacate the suit land. On 01.08.2008 at about 0800 am the plaintiffs requested the defendants to vacate the suit land, but they did not pay any heed. The plaintiffs thereafter on 03.11.2008 sent an Advocate’s notice to the defendants to vacate the suit land within 15 days and in reply to that Advocate’s notice, the defendants through their Advocate falsely contended that the suit land was sold out by father of the plaintiffs to father of the defendants in the year 1984 at a consideration of Rs.10,000/and thereafter handed over possession to the father of the defendants and thereby the father of the defendants had been possessing the suit land. The claim made by the defendants was false and the defendants have no right, title and interest in the suit land and hence, the plaintiffs prayed for decree of declaration of right, title and interest and for recovery of possession.
5. The defendants by filing a joint written statement, interalia, contended that father of the plaintiffs, namely, Kumud Chandra Kapali and father of the defendants, namely, Prafulla Kapali were full blood brothers and they jointly purchased about 24 acres of land in the year 1949 at Mouja Uttar Machmarra, Tehashil Machmarra, North Tripura and had been jointly owning and possessing the land. They constructed their residential houses and started living there with their family members. In the year 1984 they mutually partitioned the landed property purchased by them and thereafter enjoying their respective shares exercising all rights, title, interest and possession as per verbal agreement. Though there was a mutual partition, but some portion of the land remained in possession of the father of the defendants since the father of the defendants was cultivating that part of the land. After mutual partition, father of the plaintiffs tried to sell the suit land to one Santiswar Barua to which
