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2017 Supreme(Tri) 139
IN THE HIGH COURT OF TRIPURA AGARTALA
S. TALAPATRA, J.
Legal representatives of late Pabitra Malakar, Smt. Archana Malakar - Appellants
Vs
Smt. Unmadini Bala Das, wife of Sri Sudhir Chandra Das - Respondents
RSA No.25 of 2013
Decided on : 31-01-2017
Advocate Appeared:
For the Appellants :Mr. A. K. Bhowmik, Sr. Advocate, Ms. M. Choudhury, Advocate
For the Respondents:Mr. Bidyut Majumder, Advocate
Headnote:
Possession - Specific Relief Act - Section 38, Transfer of Property Act - Section 58(c) - [SUMMARY]
Fact of the Case:
The respondents filed a suit for perpetual injunction under Section 38 of the Specific Relief Act, claiming possession of a land they purchased. The defendants claimed that the sale was conditional and they had repurchased the land.
Finding of the Court:
The trial court found in favor of the respondents, holding that they were the rightful owners and in possession of the land. The first appellate court affirmed this finding.
Issues: The main issues were the validity of the sale and the possession of the land.
Ratio Decidendi: The court held that the sale was not conditional as the condition was not embodied in the sale deed or any collateral document, as required by Section 58(c) of the Transfer of Property Act. The courts also found that the defendants' evidence was not substantive enough to rebut the presumption of correctness of the entry made in the khatian mutated in favor of the respondents.
Final Decision: The appeal was dismissed, and the decree was prepared accordingly.
Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Ms. M. Choudhury, learned counsel appearing for the appellants as well as Mr. B. Majumder, learned counsel appearing for the respondents.
2. This is an appeal under Section 100 of the CPC from the concurrent finding of the fact as returned by the judgment dated 26.02.2013 by the Additional District Judge, North Tripura, Dharmanagar in Title Appeal No.10 of 2012 while affirming the judgment dated 05.03.2012 delivered in Title Suit No.13 of 2009 by the Civil Judge (Junior Division), Dharmanagar, North Tripura.
3. When admitting this appeal, by the order dated 10.07.2013, the following substantial question of law was formulated for hearing:
“Whether by the impugned judgment dated 26.02.2013 the Additional District Judge has misread the evidence including the said content of the said ekrarnama, Exbt. B for purpose of affirming the finding as regard to the possession as returned by the Civil Judge, Jr. Division, Dharmanagar, North Tripura by his judgment and decree dated 13.12.2013 in Title Suit No.13 of 2009?”
4. For purpose of appreciating the substantial question of law, the relevant facts may briefly be noted at the outset.
The suit being Title Suit No.13 of 2009 was filed by the respondents for perpetual injunction under Section 38 of the Specific Relief Act as the plaintiff was threatened of dispossession on 17.12.2008 by the appellants and their men. But for resistance offered by the plaintiff-respondents in order to protect the possession and interest in the suit land, the said bid was frustrated. But for enjoying peaceful possession, the suit for perpetual injunction was filed against the defendant-appellants. The suit land indisputably pertains to Khatian No.1460 of Mouja Dharmanagar, R.S. Plot No.5633 corresponding to old plot No.3649 measuring .39 acre. The plaintiff-respondents prayed for the said relief based on the title which devolved to them by way of sale vide the saledeed No.12253 dated 03.06.1993 from Harendra Chandra Torat and Himangshu Torat. On the same day of purchase, they took the delivery on the possession. The said land has been mutated in their name under Khatian No.1460. But the root of the dispute can be located in the transfer of the suit land to Harendra Chandra Torat and Himangshu Torat who claimed to have purchased the suit land from Paresh Chandra Malakar, the predecessor and father of the defendant-appellants.
5. Hemendra Torat and Himangshu Torat claimed to have purchased the said suit land by dint of the registered sale deed No.1383 dated 03.02.1977. The sale documents are not disputed by the defendant-appellants. But the defendant-appellants have claimed that the sale that occurred on 03.02.1977 was a conditional sale as his father took a loan of Rs.2,000/and he executed the saledeed dated 03.02.1977 with oral condition that on payment of the said loan amount within a period of 5(five) years from date of the execution of the saledeed, Hemendra Torat and Himangshu Torat shall reconvey the said land in favour of Paresh Chandra Malakar. According to them, within 5(five) years their father Paresh Chandra Malakar repaid the loan and on 09.02.1981 a memorandum [smaraklipi] was issued by Hemendra Chandra Torat (Exbt.B). From the reading of the said memorandum it would appear that on that day of execution of the said memorandum i.e. 09.02.1981 the possession of the land was handed over. But the plaintiff-respondents have claimed that from 03.06.1993 when the land was purchased from Hemendra Chandra Torat and Himangshu Torat they are in continuous possession over the said land. On 07.12.2008, the defendant-appellants made a desperate bid according to the plaintiff-respondents to oust them from possession. But the said bid was frustrated for their resistance.
6. On the basis of the pleadings, as many as 4(four) issues were framed, which are as under:
(i) Whether the suit is maintainable in its present form and nature.
(ii) Whether th
