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2017 Supreme(Tri) 182
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri Haralal Sutradhar - Appellant
Vs.
Smt. Sunati Paul, Wife of late Kumud Bihari Paul & Ors. - Respondents
RSA No.27 of 2013
Decided On : 28-02-2017
For the Appellant :Mr. S. Kar Bhowmik, Advocate
For the Respondents:Mr. S.M. Chakraborty, Senior Advocate, Ms. P. Sen, Advocate
The foundational evidence required for admitting secondary evidence and the estoppel of the defendant to raise objections regarding ownership.
Headnote:
Adverse Possession - Property Dispute - Evidence Act, Section 65 - Summary of Acts and Sections: Evidence Act, Section 65; CPC, Section 100 - The court discussed the admissibility of certified copies of partition deed and sale deeds under Section 65 of the Evidence Act, and the issue of adverse possession. The court emphasized the foundational evidence required for admitting secondary evidence and the estoppel of the defendant to raise objections regarding ownership.
Fact of the Case:
The plaintiffs filed a suit for recovery of possession of a land, claiming that it was forcibly occupied by the defendant. The trial court dismissed the suit, questioning the admissibility of secondary evidence under Section 65 of the Evidence Act and the claim of adverse possession. The first appellate court reversed the judgment, declaring the plaintiffs' title and ordering recovery of possession.
Finding of the Court:
The first appellate court found that the defendant's claim of adverse possession was inconsistent with the admission of part-performance, and the plaintiffs had better title and interest over the land. It held that the trial court erred in admitting certified copies without following the procedure under Section 65 of the Evidence Act.
Issues: The issues revolved around the admissibility of certified copies under Section 65 of the Evidence Act, the claim of adverse possession, and the foundational evidence required for admitting secondary evidence.
Ratio Decidendi: The court emphasized the need for foundational evidence to authenticate secondary evidence, the inconsistency of the defendant's claim of adverse possession, and the estoppel of the defendant to raise objections regarding ownership.
Final Decision: The appeal was dismissed, and the defendant was directed to hand over vacant possession of the land to the plaintiffs within three months.
1. This is an appeal under Section 100 of the CPC from the judgment dated 24.04.2013 delivered in Title Appeal No.03 of 2012 by the District Judge, South Tripura, Udaipur. By the order dated 10.07.2013, the following substantial questions of law were framed by this court for hearing of the appeal:
“(i) Whether the certified copies of partition deed No.5044 of 1978 marked Ext.3, certified copy of the sale deed No.5219 marked Ext.7, certified copy of the sale deed No.426 marked Ext.8 have been admitted illegally waiving the prescription of Section 65 of the Evidence Act? and
(ii) Whether the non-arraigning of Subodh Chandra Paul, a co-sharer in terms of Ext.3, the partition deed No.5044 of 1978 has vitiated the impugned judgment?”
2. The plaintiff-respondents filed the suit being Title Suit No.1 of 2011 in the court of the Civil Judge, Senior Division, South Tripura, Udaipur [as it then was] for declaration of right, title and interest and for recovery of the possession of the suit land as described in the Schedule-B in the plaint measuring more or less 0.09 acre. The plaintiffs have clearly stated that the father of the plaintiff No.2 and 7 and husband of the plaintiff No.1 namely Kumud Behari Paul along with his brother Subodh Chandra Paul purchased a tract of land measuring 0.90 acre by the registered sale deed dated 24.09.1976 and thereafter by the deed of partition, the land was amicably separated between those two brothers. By virtue of the said partition deed under No.5044 the predecessor of the plaintiffs got the land measuring 0.55 acre and the said land has been recorded as C.S. Plot No.1243 pertaining to Khatian No.385 of Mouja Fulkumari, Sub-Division-Udaipur. A part of the said land had been forcibly occupied by the defendant-appellant on 16.02.2012, during the lifetime of Kumud Behari Paul. Kumud Behari Paul untimely died on 01.04.2006. After death of Kumud Behari Paul, the plaintiffs as legal heirs of Kumud Behari Paul demanded the vacant possession of the suit land by a notice issued on 24.06.2010. The notice was duly received by the defendant-appellant on 29.06.2010. The defendant-appellant by filing the written statement has stated inter alia as under:
"That, admittedly Kumud Behari Paul was the trueful owner in possession of the suit land and he is urgent need of cash money to mitigate the marriage ceremony of his eldest daughter- Smt. Manju Paul sold the entire suit land on 03/12/1993 A.D. to the defendant on receipt of settled consideration money of Rs.13,000/- (Rupees thirteen thousand) in cash from the defendant and on that day said Kumud Behari Paul on receipt of consideration money and handed over the possession of the suit land to the defendant in presence of local people of that locality, namely Subal Sutradhar, Smt. Rangmala, Sri Bibhas Saha and others. Since purchase defendant had started to possess the suit land as owner without any sort of disturbance from any corner within the knowledge of the Kumud Behari Paul and his family members and local people.”
3. It has been further asserted in the written statement that after completion of the marriage ceremony of the daughter of Kumud Behari Paul, the defendant on 02.02.1994 along with the local people namely Subal Sutradhar visited the house of Kumud Behari Paul and requested him to execute and register the sale deed for the suit land in his favour, but said Kumud Behari Paul had brazenly denied to execute and register the sale deed for the suit land in his favour by stating that he would not execute and register the sale deed unless an additional sum of Rs.5000/- be paid to him beyond the settled consideration money of ndant failed to accommodate him complying with such illegal demand of Rs.5000/- and raised protest against such conduct. Then Kumud Behari Paul told the defendant to return the consideration money received by him amounting to Rs.13,000/-. At that stage also the defendant raised protest. The entire episode did occur, i
