JUDGMENT AND ORDER :

Heard Mr. D. Bhattacharjee, learned counsel, appearing for the appellants as well as Mr. A. Sengupta, learned counsel appearing for the respondents.

2. This is an appeal under Section 100 of the CPC from the judgment and decree dated 21.12.2012 delivered in Title Appeal No.35 of 2009 by the District Judge, South Tripura, Udaipur, as it then was, whereby the first appeal filed by the appellants from the judgment and decree dated 24.09.2009 delivered in Title Suit No.23 of 2008 was affirmed.

3. Challenging that judgment of affirmation, this appeal has been filed and while admitting this appeal the following substantial question of law was formulated.

“Whether the courts below have committed patent illegality on decreeing the suit for recovery of possession by not considering the aspect of limitation vis-a-vis the continuous possession of the defendant-appellant?”

4. The brief facts are placed at the outset considering those relevant for appreciating the substantial question of law.

The respondents filed the suit being Title Suit No.23 of 2008 for declaration of right, title and interest on the suit land as described in the schedule appended below the plaint and the prayer as couched along with is also for a decree of recovery of possession by evicting the defendants, the appellant herein and a decree for mesne profit for Rs.10,000/- per year from the date of dispossession i.e. 15.07.2007 till the recovery.

The plaintiffs pleaded that one Krishna Kr. Bhowmik was the sole owner in possession of the land comprised in Khatian No.159, plot Nos.858, 921, 937, 943, 944 and 945, measuring 2.9 acres in the MoujaSouth Kalapania. Krishna Kr. Bhowmik sold the entire land as stated to the original plaintiff Nos.1 and 2 and to one Paresh Ch. Majumder, the predecessor-in-interest of the plaintiff Nos.3(a) to 3 (g) by a registered deed of sale under deed No.1-457 dated 23.07.1974 and the sole owner caused the delivery of possession on the same date.

During the revisional survey, the suit land was recorded in RS Khatian No.221/1 and 221/2 in the name of the plaintiff Nos.1 and 2 and Paresh Ch. Majumder since deceased as the joint owners-in-possession. Paresh Chandra Majumder died on 18.09.2003 leaving behind the added plaintiff Nos.3(a) to 3(g). Subsequently, the plaintiff-respondent No.3(a) namely Kananbala Majumder wife of Paresh Ch. Majumder also died. But she is represented by the legal heirs who were already on record.

It is pleaded by the respondents that on 15.07.2007 while the original plaintiffs were working in the suit land, the appellants forcibly entered into that land and dispossessed them. Earlier, they were not only in the possession but they used to enjoy the usufructs from that land. According to the plaintiff, they used to grow 70 mounds of Aush and Poush paddy per kani from the suit land and calculating on the market value i.e. per mound paddy at Rs.340/-, they have prayed for a decree of mesne profit to the extent of Rs.10,000/- per year.

The another substituted plaintiff, namely Prabhat Majumder died and his legal heirs namely Sabita Majumder and Sannati Majumder (minor) were also substituted. The appellants, the defendants in the suit, by filing a joint written statement seriously controverted the pleadings and stated that Krishna Kr. Bhowmik was never in possession. The transaction as carried out by the sale deed No.1-457 dated 27.03.1974 was sham as Krishna Kr. Bhowmik never came into possession. The appellants have been continuing in the possession uninterruptedly. As such, the story of dispossession is an act of concoction.

The defendants, however, in their written statement have stated that the original plaintiffs prayed for mutation of the records in the year 1975 but such mutation was denied. Finally, in the year 1999 the plaintiffs, according to the defendants, “managed to get mutation” of the suit land in the form of said khatians No.221/1 and 221/2. According to the defendants, in the year 1962 during th

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