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IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri. Sunil Chandra Bhowmik, son of late Ambika Charan Bhowmik @ Sarkar and Others – Appellants
Vs.
Sri. Hemendra Sarkar and Others – Respondents
RSA NO.8 OF 2013
Decided On : 07-02-2017
TITLE SUIT - Declaration and Recovery of Possession - Section 43 of TLR and LR Act, 1960 - Summary of Acts and Sections: TLR and LR Act, 1960, Section 43(3) - The court discussed the implications of Section 43 of the TLR and LR Act, 1960, which states that entries in the record of right are to be treated as correct unless rebutted by evidence. The court emphasized that the record of rights only records the incidence of possession and does not serve as substantive evidence for declaring title. The court also highlighted the requirement for producing the deed of title as a basis for declaring title in a civil court.
Fact of the Case:
The plaintiff-appellants filed a suit for declaration and recovery of possession of a land. The defendants filed a counterclaim seeking specific performance of an oral agreement and a decree of declaration of title by adverse possession. Both the counterclaim and the suit were dismissed by the trial court and the first appellate court.
Finding of the Court:
The court found that the plaintiff-appellants failed to prove their title as they did not produce the deed of title and relied solely on the entries in the record of right. The court dismissed the appeal, stating that the civil court cannot declare title without the basic document of title or on mere admission.
Issues: The key issues were whether a civil court can declare title without the basic document of title or on admission, and whether the entries in the khatians can be treated as substantive evidence to declare title in favor of the plaintiff-appellants.
Ratio Decidendi: The court held that the record of rights only records possession and cannot serve as substantive evidence for declaring title. It emphasized the requirement for producing the deed of title as a basis for declaring title in a civil court.
Final Decision: The appeal was dismissed, and the court drew the decree accordingly.
Heard Mr. D.R. Choudhury, learned counsel appearing for the plaintiff-appellants as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. S. Saha, learned counsel appearing for the respondents.
2. This is an appeal under Section 100 of the CPC from the judgment dated 29.09.2012 delivered in Title Appeal No. 28 of 2010 by the Addl. District Judge, Court No.3, Agartala, West Tripura. The said judgment is a common judgment delivered in Title Appeal No.27 of 2010 and Title Appeal No.28 of 2010.
3. At the time of admission of this appeal following substantial questions of law were formulated by this court:
(i) Whether the judgment and decree suffer from perversity
(ii) Whether the courts below failed to appreciate the implication of Section 43 of TLR and LR Act, 1960.
Liberty was granted to the plaintiff-appellants to raise any other substantial question of law at the time of hearing.
4. By exercising that liberty the plaintiff-appellants filed an interlocutory application being IA 126 of 2017 in this court urging to formulate two more substantial questions of law, but by the order passed today the said interlocutory application has been rejected assigning reasons.
5. The essential fact as would be required to get the perspective for appreciating the challenge in this appeal requires to be noted at the outset. The plaintiff-appellants filed the suit being Title Suit No.02 of 2009 for declaration and recovery of possession of the suit land measuring 0.25 acre pertaining to Mouja Krishnakishorenagar, Tehsil Ghaniamara under old Khatian No.5498 and 7040, RS Khatian No.101/3 under old plot No. 14117 corresponding to the new plot No.8982 and the description of the land in question is available in the schedule appended to the plaint.
6. The case of the plaintiff-appellants is that their father Ambika Charan Bhowmik got the suit land by way of exchange of their property in the erstwhile East Pakistan with Sobi Mohammad Sikandar Ali and Harmuzernesa alias Harmuza Khatun. It is the further case of the plaintiff that their father also purchased some land adjacent to the suit land from one Julfu Miah. After the exchange of the suit land, the record of right was created in the name of Surabala Debi, mother of the plaintiffs. Later on, said Surabala Debi transferred the suit land to her husband, Ambika Chararan Bhowmik. Thus the record of right was created in favour of Ambika Charan Bhowmik under the Khatian No.101/3. On December, 1999 the defendants requested Ambika Charan Bhowmik to live on the suit land after the construction of the huts in the adjacent northern side of the suit land and when asked, they would vacate the suit land. The defendants were requested to vacate the suit land in the middle of the year 2002, but on 09.09.2003 the defendants had denied to vacate the suit land. The defendants managed to get the name of Julfu Miah recorded as forceful possessor in column No.24 of the relevant khatian. This dispute was taken to the Panchayat and a meeting was held on 16.10.2008. In the meeting, the defendants proposed to purchase the suit land on consideration of Rs.30,000/-. But the plaintiffs were not ready to sell the suit land as the suit land is one of the memorials of their father. Hence, the suit has been instituted by the plaintiff-appellants seeking the relief as stated above.
7. The defendant-respondents did not only file the written statement but they have set up a counter claim in T.S. (CC) 15 of 2009 seeking a decree of specific performance of contract which was orally made on 16.10.2008 and an alternative decree of declaration of title by adverse possession along with perpetual injunction against the plaintiffs of T.S. 02 of 2009. Initially, the decree of specific performance was granted by the trial court, the court of the Civil Judge, Junior Division, Bishalgarh, West Tripura by dismissing the prayer for declaration on adverse possession. As consequence, the suit of the plaintiff-appellant was dism
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