JUDGEMENT AND ORDER :

1. This is an appeal filed under Section 100 of the Code of Civil Procedure calling the judgment dated 27.07.2013 delivered in Title Appeal No. 08 of 2012 by the District Judge, South Tripura, Udaipur in question. By the said judgment of affirmance, the judgment dated 18.01.2012 delivered in Title Suit No. 04 of 2006 by the Civil Judge (Junior Division), Udaipur, South Tripura has not been interfered with. By the order dated 27.01.2014 the following substantial questions of law were formulated by this court

(i) Whether the decree for right, title, interest and possession over the suit land can be granted in favour of the plaintiff in absence of her oral testimony or the testimony of a Power of Attorney

(ii) Whether in absence of any title, but only on the basis of record of right, a decree declaring title can be issued in favour of the plaintiff in absence of any deed relating to title?

2. The appellant was given liberty to raise further substantial question of law, but the appellant did not raise any additional substantial question of law for consideration. To have the perspective of the challenge as projected in this appeal, the essential facts leading to the impugned judgment may briefly be introduced at the outset.

3. The pleaded case of the plaintiff-respondent is that the plaintiff No.2, namely Bakul Rani Majumder owned land measuring 0.010 acres under Dag No. 366/1407, Khatian No. 351. Over the half-portion of the land, she constructed dokan vitti and the remaining portion remained vacant. On 25.10.2005 the defendants trespassed into the southern part of the land shown in the ‘A’ schedule appended to the plaint. The schedule ‘B’ land of the plaint is still under the possession of the plaintiffs and there is a dokan viti but from the schedule ‘B’ land. The predecessor of the plaintiffs had been dispossessed on 25.10.2005 and by means of the suit the plaintiffs have prayed for a decree of recovery.

4. By filing the written statement the sole defendant, the appellant herein, has admitted in the written statement as under:

“That the fact of the case in brief the mother of the plaintiff no.1 Bakul Rani Majumder sold out 1 kara 1 kranta 10 dhurs of land i.e. a part of suit land by giving specific boundary to the defendant and delivered the possession accordingly on 10.01.1973.

Due to mistake of Deed Writer the plot No. was written 366/1408 in lieu of Plot No. 366/1407. The defendant prayed for mutation for the said purchased land and mutation was made accordingly in the name of defendant at Mouja-Barabhaiya, Khatian No. 30, Plot No. 355/1407 land measuring .010 acres of land vide mutation case No. 38 of 1989. After purchase by the defendant constructed hut and started Rice Milling Business from the portion of the suit land.

It is to be mentioned here that on 10.01.1973 the plaintiff No.2,Smt. Bakul Rani Majumder purchased 2 kranta 10 dhurs of land from his brother Chitta Ranjan Majumder by specific boundary which is separate and different in Plot No. 366/1408 peace of land, certain away from the suit land.

So, the question of selling land of plot no. 366/1408 land measuring 1 kara 1 kranta and 10 dhurs does not arise at all as because Bakul Rani never belonged to 1 kara 1 kranta and 10 dhurs land in plot No. 366/1408 of Mouja-Barabhaiya.

The defendant instituted T.S. 2 of 2006 against the plaintiffs claiming Decree for the suit land prior to institution of the suit. The party and the suit land are the same and the suit filed by the defendant is the previous suit. So, the suit is liable to be dismissed”. [Emphasis added]

5. Based on the said pleadings the trial Court framed the following issues :

“(i) Whether the plaintiffs are entitled to a decree for declaration as to right, title, interest and ownership over the suit land and recovery of possession of the portion of the suit land as prayed for?

(ii) Whether the plaintiffs are entitled to a decree for perpetual injunction restraining the defendants, their men or agen

Click Here to Read the rest of this document