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2017 Supreme(Tri) 115
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri Bimal Sen, son of late Pran Gopal Sen - Appellant
Versus
Sri Raj Kumar Das, son of late Mahendra Kr. Das - Respondent
RSA. No. 47 of 2013
Decided On : 20-01-2017
For the Appellant :Mr. D. R. Choudhury, Advocate
For the Respondent:Ms. R. Purkayastha, Advocate
The legal principle established is that possession and demarcation reports, along with R.S. Khatian entries, are crucial in determining entitlement to perpetual injunction under the Specific Relief Act.
Headnote:
Specific Relief Act - Possession - Section 38 - TLR & LR Act - Section 43(3)
Fact of the Case:
The suit was filed for perpetual injunction under Section 38 of the Specific Relief Act, in respect of the land. The plaintiff claimed possession since 1965, while the defendant asserted possession based on property exchange.
Finding of the Court:
The trial court found in favor of the defendant based on a demarcation report, but the first appellate court reversed the decision, granting perpetual injunction to the plaintiff. The defendant's appeal was dismissed by the higher court.
Issues: The main issue was whether the plaintiff was entitled to a decree of perpetual injunction restraining the defendant from entering the suit land and disturbing peaceful possession.
Ratio Decidendi: The first appellate court relied on the demarcation report and R.S. Khatian entries to find the plaintiff in possession, while the higher court dismissed the defendant's appeal, upholding the first appellate court's decision.
Final Decision: The appeal was dismissed, and the decree for perpetual injunction in favor of the plaintiff was upheld.
1. Heard Mr. D. R. Choudhury, learned counsel appearing for the appellant as well as Ms. R. Purkayastha, learned counsel appearing for the respondent.
2. This is an appeal under Section 100 of the CPC from the judgment dated 11.06.2013, delivered in Title Appeal No. 04 of 2012 by the District Judge, South Tripura, Udaipur (as he then was). At the instance of the defendant-appellant, the following substantial question of law was framed by this Court for hearing the appeal:
“Whether the judgment and decree passed by the appellate Court suffers from perversity?”
3. The appellant was given liberty to raise further substantial question of law in the hearing but Mr. Choudhury, learned counsel appearing for the appellant has fairly submitted that he would confine on the framed substantial question of law and he will not suggest any fresh substantial question of law.
4. At the beginning, Mr. Choudhury, learned counsel has submitted that the first appellate court while passing the impugned judgment has misread the Tehsildar’s report (Exhibit-A) and landed up in the finding holding that the defendant was not in the possession and by reversing the judgment of the trial court [judgment dated 05.01.2012 delivered in T. S. No. 03 of 2011 by the Civil Judge, Senior Division, South Tripura, Udaipur, [as he then was]. The suit was filed for perpetual injunction under Section 38 of the Specific Relief Act, in respect of the land pertaining to R.S Khatian No. 15/2, Plot No. 2398 (Nal), corresponding to C.S Plot No. 964 (part) and in the plaint, the suit land has been delineated in the Para-1.
5. According to the plaintiff-respondent, his predecessor or he has possessed the suit land since 1965 and the suit land was originally belonged to one Adam Khan who had left this country. Still, the said land is recorded in the name of Adam Khan.
6. The plaintiff has been claiming right to possession throught the predecessor. Having the cause of action from the act of the respondent by which he wanted to dispossess the plaintiff from the said land on 26.12.2010, the said suit was instituted.
7. The defendant-appellant by filing a written statement has disputed the claim of the plaintiff and asserted that he has come into the possession as his predecessor, Pran Gopal Sen exchanged the property with the cousin of Adam Khan. However, the suit is not for adjudicating the title of the land, or any right based on the title. It is wholly confined on the possession over that land.
8. Therefore, one of the issues those were framed by the trial court inter alia is:
“Whether the plaintiff side is entitled for a decree of perpetual injunction restraining the defendants and his men from entering into the suit land and disturbing peaceful possession of the plaintiff over it?”
9. The trial court on recording the evidence by the judgment dated 05.01.2012 has returned the finding averse to the plaintiff. All the documents as produced by the plaintiff have been discussed properly but on the basis of a demarcation report prepared by one Thesildar (Exhibit-A), the trial court has observed as under:
“As per Exhibit-A, it reveals that suit land is handed over to the defendant by the Tehesildar in presence of village Chairman and the 2nd party and other various persons. It is clear from this Exhibit-A that at present the suit land is in the possession of the defendant of this case.”
10. By observing this, the entry made in R. S. Khatian showing the plaintiff-respondents in possession of the suit land has been completely ignored and no presumption under Section 43(3) of the TLR & LR Act has been drawn.
11. This judgment of the trial court has been challenged in the title appeal being T.A. No. 04 of 2012, filed by the plaintiff-respondent in the Court of the District Judge, South Tripura, Udaipur, as he then was. By the impugned judgment dated 11.06.2013, the said appeal has been allowed and consequent thereupon, the suit has been decreed by granting perpetual injunction re
