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IN THE HIGH COURT OF TRIPURA AGARTALA
S. TALAPATRA, J.
Md. Soya Mia, son of late Asmat Ali & Ors. – Appellants
Versus
Abdul Chamed, son of late Ali Ahmed & Ors. – Respondents
RSA. No. 46 of 2014
Decided On : 09-04-2018
Gift - Property Dispute - 33/59 - Oral gift, right, title, and interest, dispossession, mesne profit, res judicata - 62 satak land, 84 satak land, joint property, possession, allotment, dispossession, evidence, perversity, substantial question of law, concurrent findings
Fact of the Case:
The plaintiffs filed a suit for declaration of right, title, and interest in a land and recovery of possession. The defendants contested the suit, claiming the land as joint property and denying the oral gift. The trial court decreed the suit in favor of the plaintiffs, which was affirmed by the first appellate court. The defendants appealed under Section-100 of the CPC, challenging the findings of the lower courts.
Finding of the Court:
The first appellate court affirmed the trial court's findings, holding that the plaintiffs had right, title, and interest over the land and were entitled to recovery of possession and mesne profit. The defendants' claim of joint property and denial of oral gift was rejected. The court also found no evidence of dispossession and upheld the decree in favor of the plaintiffs.
Issues: The issues included the maintainability of the suit, identifiability of the suit land, right, title, and interest of the plaintiffs, entitlement to recovery of possession, mesne profit, and other reliefs. The court analyzed the evidence and legal principles to decide these issues.
Ratio Decidendi: The court relied on the evidence presented, including khatian entries, to determine the right, title, and interest of the parties over the land. It also considered the principles of dispossession, res judicata, and the requirement of framing substantial questions of law under Section-100 of the CPC.
Final Decision: The appeal was dismissed, and the decree in favor of the plaintiffs was upheld. The court found no infirmity in the lower courts' findings and concluded that the plaintiffs were entitled to recover the land from which they were dispossessed.
Heard Mr. D.K. Daschoudhury, learned counsel appearing for the appellants as well as Ms. P. Dhar, learned counsel and Mr. J. Debbarma, learned counsel appearing for the plaintiff-respondents.
2. This is an appeal under Section-100 of the CPC from the judgment dated 23.01.2014 delivered in Title Appeal No. 24 of 2013 by the District Judge, South Tripura now Gomati, Udaipur. The appellants were the defendants in the suit being Title Suit No. 21 of 2012, which was instituted by the plaintiff-respondents for declaration of right, title and interest in respect of the suit land as described in the Schedule-A and Schedule-B of the plaint and recovery of possession of the suit land.
3. It has been pleaded in the plaint that by dint of allotment order under No. 33/59 dated 02.08.1987, the plaintiffs acquired right, title and interest over the land measuring 0.32 acre. The plaintiffs have been in the possession on the suit land, but on 12.01.2012, the plaintiffs were dispossessed from the suit land as described in the Schedule-B to the plaint, which is different land, according to the plaintiff-respondents.
4. The father of the plaintiffs namely Ali Ahmed, since deceased, by means of an oral gift transferred a piece of land measuring 0.34 acre as described in the Schedule-B to the plaint. Such oral gift was made 30 years prior to the institution of the suit. The plaintiffs have also been dispossessed from the suit land by the defendants No. 1, 2 and 4 along with 3(three) others on the same date i.e. on 12.01.2012. They were dispossessed from the suit land.
5. The defendants stiffly contested the suit by filing the written statement and pleaded that the plaintiffs were never in possession over the suit land as described in the schedule-A land and they had been wrongly allotted the said land by the authority. The defendants by raising serious objection have initiated the proceeding for cancellation of the order of allotment. The defendants have denied the incidence of oral gift by Ali Ahmed in favour of the plaintiff No. 1 and the defendants claimed the said land measuring. 34 acre under the oral gift, is the part of the joint property.
6. The said property was never partitioned among the other co-parceners but the plaintiffs, in collusion with the settlement officials, managed to get the suit land recorded in their name in the record of rights. Based on the said rival pleadings, the following issues were framed:
“(i) Whether the suit is maintainable in its present form and nature?
(ii) Whether the suit land is identifiable or not?
(iii) Whether the plaintiffs have any right, title and interest over the Schedule-A and Schedule-B of the plaint?
(iv) Whether the plaintiff is entitled for a decree recovery of khas possession of the suit land by evicting the defendants, their men and agents etc.?
(v) Whether the plaintiffs are entitled for a decree of perpetual injunction restraining the defendants, their men, agents etc. not to disturb the peaceful possession of the plaintiffs after handing over khas of the suit land?
(vi) Whether the plaintiffs are entitled for any mesne profit?
(vii) Whether the plaintiffs are entitled for any other relief/relief’s?”
7. Having due regard to the issues, both the plaintiffs and the defendants have adduced their evidence, both oral and documentary. The trial court [the Civil Judge, Sr. Division, South Tripura, Udaipur], based on the judgment dated 03.08.2013 delivered in T.S. 21 of 2012, decreed the suit holding that the plaintiffs have got right, title and interest over the suit land as described in the schedule- A and Schedule-B to the plaint. It has been further observed that as the plaintiffs have proved their right, title and interest, they are entitled to a decree for recovery of the khas possession of the suit land by evicting the defendants, their men and agents etc. The plaintiffs are also entitled to decree of perpetual injunction restraining the defendants, their men and agents from disturbi
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