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2016 Supreme(Tri) 249
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri Birbikram Singha Roy & Ors. – Appellants
Vs.
Sri Vibekananda Singha Roy, son of late Anil Ch. Singha Roy – Respondent
RSA. No.07 of 2012
Decided On : 26-08-2016
For the Appellants :Mr. A. K. Deb, Advocate
For the Respondent:Mr. N. Das, Advocate
The burden of proof lies on the party asserting the existence of a Hindu Undivided Family (HUF) and the transaction of sale must be in accordance with Section 58 of the Transfer of Property Act.
Headnote:
HUF - Property Dispute - Section 58 of the Transfer of Property Act - 1957 SCR 603 - 1976 SCR (3)1096 - 1999 SC 2213 - 2008 SC 956 - 2012 SC 264 - 2014 SC 2665 - 2012 SC 264
Fact of the Case:
The plaintiff filed a suit for recovery of khas possession of a land, claiming ownership based on a sale deed. The defendants contended that the plaintiff purchased the land as the karta of a Hindu Undivided Family (HUF) and thus cannot claim exclusive title. The trial court dismissed the suit, but the first appellate court reversed the finding, allowing the appeal in part.
Finding of the Court:
The first appellate court found that the plaintiff acquired right, title, and interest over the land and was entitled to a decree for declaration of title and recovery of possession for a portion of the land. The court dismissed the appeal in part, setting aside the judgment of the trial court.
Issues: 1. Whether the transaction of sale is covered under Section 58 of the Transfer of Property Act. 2. Whether there was an existence of a Hindu Undivided Family (HUF) at the time of the transaction. 3. Whether the defendants have discharged the burden in respect of the Hindu Undivided Family (HUF).
Ratio Decidendi: The court held that the transaction of sale was not covered under Section 58 of the Transfer of Property Act and that there was no existence of a Hindu Undivided Family (HUF) at the time of the transaction. The defendants failed to prove the existence of an HUF and the plaintiff's status as the karta of an HUF.
Final Decision: The appeal was dismissed, subject to modification, allowing the plaintiff to recover a portion of the land from the defendants.
1. This is an appeal under Section 100 of the CPC from the judgment dated 20.09.2011 delivered in Title Appeal No.24 of 2011 by the District Judge, North Tripura, Kailashahar (now Unakoti Judicial District, Kailashahar). For purpose of hearing, the appeal was admitted by the order dated 18.04.2012 on the following substantial questions of law:
“Whether the judgment & decree, passed by the first Appellate Court, suffers from perversity?”
Liberty was granted to the appellants for raising any other substantial question of law at the time of hearing of the appeal. But no additional substantial question of law has been agitated by the appellants.
2. The essential fact, as may be required to have the perspective of the challenge, may be noted briefly in the beginning.
The appellant-respondent filed the suit being Title Suit No.13 of 2007 for recovery of khas possession which has been described in the schedule of the plaint. The schedule of the suit land is reproduced hereunder:
“SCHEDULE OF LAND
Mouja-Gournagar, known as Chirakuti, Jote No.319,
Khatian No.324 (Present) 683 C.S. Plot No.163
(Present) class-Nal, area – 0.16 acres, Bounded by :-
North :- Road.
South :- Bikram Singha, East :- Road.
West :- Mathangini Singha Roy.”
It is thus apparent that the suit land is comprised in the present plot No.163 measuring 0.16 acres. Relief to have recovery is based on the declaration of right, title and interest of the plaintiff over the suit land. The plaintiff has stated that the suit land belonged to Arun Chandra Bhowmik, Shambu Bhowmik, Anita Ghosh, Lila Rani Ghosh, Sita Rani Ghosh, Banya Bhowmik and Bharati Bhowmik, hereinafter referred to as Arun Ch. Bhowmik et al.
By the registered sale deed No.1-648 dated 09.02.2000 which was however registered on 15.02.2000, the plaintiff purchased the suit land from Arun Ch. Bhowmik et al. The record of rights was mutated and khatian No.683 of Mouja- Gournagar was opened in the name of the plaintiff. The defendants are the brothers. Taking advantage of the plaintiff’s remaining out of the village, on 10.05.2002 the defendants dispossessed the plaintiff from the possession of the suit land. The defendants do not have any right, title and interest over the suit land. Their status, according to the plaintiff, are of trespassers. As the defendants were enjoying the usufructs relief to have the mesne profit at the rate not less than Rs.1,000/- per year has been made in the suit.
3. By filing the written statement, the defendants have stated that the suit is bad for non-joinder of the parties inasmuch as their mother Matangini Sinha Roy, even though she is in the possession of the suit land, has not been impleaded as the party. According to them, by the sale deed No.1-263 dated 26.02.2007 part of the suit land was transferred and thus the plaintiff had lost right, title and interest over the land covered by the sale deed dated 26.02.2007. According to the defendants, the father of the plaintiff and the defendants, namely Anil Ch. Singha Roy was the owner of the suit land. By the registered sale deed No.254/1957 dated 05.08.1957 they sold out the suit land along with some other lands to one Sital Ch. Bhowmik with an oral contract to repurchase the suit land along with other lands measuring 0.32 acre. Since there was an oral agreement, Anil Ch. Singha Roy continued in the possession and accordingly their possession has been recorded in the previous Khatian No.324 of Mouja-Gournagar under column No.24 as permissive possessor. Anil Ch. Singha Roy died on 11.10.1990 leaving behind his wife, Matangini Singha Roy, eldest son namely Pulak Singha Roy and other sons namely Vibekananda Singha Roy (the plaintiff), Birbikram Singha Roy (the defendant No.1), Sangram Singha Roy (the defendant No.2) and daughters as his legal heirs. The defendants and their mother continued in the possession even after death of their father. The eldest son of Anil Ch. Singha Roy separated from the father’s family. Smt. Purabi Sin
