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2017 Supreme(Tri) 271
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Smt. Sukla Deb, wife of late Jatindra Chandra Debbarma and Ors. - Appellants
Versus
Sri Dhiraj Laskar, son of late Manindra Chandra Laskar and Ors. – Respondents
RSA 33 of 2013
Decided On : 30-05-2017
For the Appellants : Mr. KN Bhattacharjee, Mr. Kohinoor N. Bhattacharjee
For the Respondents: Mr. D. Chakraborty, Mr. UK Majumder, Mr. H. Laskar
The main legal point established in the judgment is the use of boundaries described in sale deeds and oral evidence to determine ownership of property, as well as the application of Section 91 and 92 of the Indian Evidence Act in establishing ownership based on the boundaries described in the sale deeds.
Headnote:
Drain - Property Dispute - Code of Civil Procedure - Section 100, Indian Evidence Act - Section 91, 92 - The court discussed the existence and ownership of a suit drain, the construction of the drain, and the boundaries described in the sale deeds. The key legal provisions discussed were Section 91 and 92 of the Indian Evidence Act, which were used to determine the ownership of the suit drain based on the boundaries described in the sale deeds.
Fact of the Case:
The plaintiff filed a suit for declaration and mandatory injunction for directing the defendants to remove the obstruction created by them in the suit drain. The defendants denied the existence of the drain and claimed that it was within their land. The trial court dismissed the suit, but the first appellate court reversed the decision, holding that the defendants illegally created the obstruction and the plaintiffs have the right, title, and interest over the suit drain.
Finding of the Court:
The first appellate court found that the suit drain was constructed by the defendants within their land and that the plaintiffs failed to prove their right, title, and interest over the drain. The court set aside the trial court's judgment and dismissed the suit.
Issues: The main issues were whether the suit drain existed, whether the plaintiffs had right, title, and interest over the drain, and whether the defendants were liable to remove the obstruction created by them inside the suit drain.
Ratio Decidendi: The court's decision was based on the evidence presented, including the boundaries described in the sale deeds, the oral testimony of witnesses, and the construction of the drain by the defendants. The court found that the suit drain was within the land of the defendants and that the plaintiffs failed to prove their ownership over the drain.
Final Decision: The appeal was allowed, and the suit was dismissed.
This is an appeal filed under Section 100 of the Code of Civil Procedure against the reversal judgment dated 28.06.2013 delivered in Title Appeal 08 of 2012 by the Additional District Judge, Court No. 4, West Tripura, Agartala. For purpose of hearing the appeal, the following substantial question was formulated by the order dated 08.08.2013:
Whether the finding of the First appellate Court that the suit drain is outside the southern boundary of the purchased land of the defendants No. 1 to 4 has emerged from the misreading of the evidence or not?
2. For laying the perspective in order to understand the challenge based on the said substantial of law, the essential facts may be introduced at the outset. The plaintiff respondent instituted the suit being Title Suit 36 of 2010 fundamentally for declaration and mandatory injunction for directing the defendants No. 1, 2 and 3 to remove the obstruction created by them in the suit drain. The said suit was instituted in the court of the Civil Judge, Junior Division (Court no.1), Agartala, West Tripura.
3. The pleaded case of the plaintiff-respondent is that the land shown in the schedule ‘A’ was purchased by the husband of the plaintiff No.1 and the father of plaintiffs No. 2 and 3 from the defendant No.6 namely Manindra chandra Laskar, since deceased by the sale deed dated 14.08.1974 and got delivery of the possession thereof, immediately after the purchase. Schedule ‘B’, according to the plaintiff is a dwelling hut and the suit drain originally belonged to Smt. Uma Rani Chakraborty and that has been described in the schedule ‘C’ of the plaint. The said drain is comprised in Howrah sheet No. 1-4, old Khatian No. 534 Jer 535 and old plot No. 916 and 917. The said suit drain has also been described by the specific boundaries.
4. The plaintiffs’ case is that the suit drain is situated outside the purchased land of the predecessor of the appellant No. 1 and the suit drain was constructed by the original owner of ‘A’ schedule land, namely, Smt. Uma Rani Chakraborty for discharging of noxious and foul water from her dwelling house, as shown in the schedule ‘B’ of the plaint. The predecessor of the plaintiffs allowed the defendant No.1 and other purchasers who are also impleaded defendants to discharge the noxious and foul water from their dwelling house through the suit drain.
5. The defendant No. 1 in collusion with the defendants No.2 and 3 closed the suit drain without any authority causing inconvenience to the plaintiffs and for closure of the drain the plaintiffs are left with no other passage to discharge the noxious and foul water from their dwelling house and at the same time, for closure of the drain, the noxious and foul water of the dwelling house of the plaintiff become stagnant sometime flows over the adjacent pathway causing inconvenience to the passersby. As the defendant No.1, in collusion with the defendants No. 2 and 3 has most wrongly and illegally closed the suit drain, the plaintiffs are entitled to declaration that the plaintiffs and the defendant No. 6 are the joint owners of the suit land and the plaintiffs are also entitled to a decree of mandatory injunction directing the defendants No. 1, 2 and 3 to remove the obstruction from the suit drain within such day, to be fixed by the Court. According to the plaintiffs, on 31.10.2001 they had noticed that the defendant No.1 closed the suit drain. However, further cause of action arose on 06.05.2010 when the order of the Deputy Collector and Magistrate dated 02.03.2010 was quashed by the Additional Sessions Judge (Court No.3), West Tripura, Agartala by the order dated 06.05.2010 passed in Criminal Revision No. 5(1)/10.
6. By filing the written statement, the defendants No. 1,2 and 3 have denied that there was ever any dwelling house on the ‘B’ schedule land when the said land was purchased by the plaintiffs and there was no drain at all. The plaintiffs and the defendant No.6 had never any interest over the s
