The court cannot decide contrary to the recital in unchallenged instruments of transfer, and the provisions of Section-44 of the Transfer of Property Act cannot be applied unless the instruments are challenged.

This is an appeal under Section 100 of the CPC from the judgment dated 13.07.2015 delivered in Title Appeal No.06 of 2014 by the District Judge, West Tripura, Agartala by affirming the judgment dated 12.12.2013 delivered in Title Suit No.60 of 2006 by the Civil Judge, Senior Division, Court No.2, West Tripura, Agartala.

2. It is to be noted that by the said judgment dated 12.12.2013, the suit as instituted by the plaintiff-appellants being Title Suit No.60 of 2006 was dismissed. The appellants instituted the said suit for declaration that the plaintiffs are entitled to own 50% of the suit land which has been described hereinafter and for further declaration that they are entitled to get Rs.7,90,146.50/- from the sum as provided in the compensation i.e., Rs.23,69,597/- for acquisition of the land. Further declaration as has been urged is that a sum of Rs.7,90,146.50/- to be refunded by the defendants No.1, 2 and 6 to the plaintiffs. That apart, an additional declaration has been sought that Khatian No.1277 has been illegally created in the name of the defendants No.1, 2 and 6 inasmuch as they do not have any title over the suit land.

SCHEDULE OF THE SUIT LAND

Within District – West Tripura, P.S. East Agartala, Mouja – Kunjaban, Tehashil – Indranagar, under Khatian No.306 jer 2919 presently khatian No.708/1 & 807/2, Hal plot No.1993, 1994, 1997, 2044 & 1999 and 2000 within this plots land measuring 1.93 acre.

3. One Umesh Chandra Sarkar and another Ramesh Chandra Sarkar were the joint owners of the suit land along with some other land. The suit land was mutated in the Khatians No.807/1 and 807/2 of Mouja-Kunjaban, Tahashil-Indranagar. According to the plaintiffs who are the legal heirs of Umesh Charndra Sarkar, the defendants No.1, 2 and 6 who are the legal heirs of Ramesh Chandra Sarkar had illegally created Khatian No.1277 in their names, even though the joint property of Umesh Chandra Sarkar and Ramesh Chandra Sarkar was never partitioned amongst their legal heirs as the predecessors died intestate. In the year 1971, the entire property was requisitioned for the use of Indian Army and thus the said land was under possession of Indian Army till 1999. When the said land was under possession of Indian Army, the defendants No.1, 2 & 6 illegally created the said khatian No.1277 purportedly on the strength of one gift deed.

4. The defendants No.1, 2 and 6 had illegally received the money which was awarded for acquisition of the said property. The amount was beyond their entitlement. However the plaintiffs have admitted that the defendants No.1, 2 and 6 have their share in the property. The predecessor of the defendants namely Ramesh Chandra Sarkar had during his lifetime sold out the land measuring 0.73 acres by executing a registered sale-deed dated 05.08.1994 to one Smt. Laxmi Dhanuk for valuable consideration. The said land was also under the acquisition. The said predecessor of the defendants executed a gift deed for a piece of land measuring 1.20 acre in favour of the defendants No.1, 2 and 6, the land transferred by the sale-deed or the gift deed though transferred still remains the part of the joint property of the legal heirs of Umesh Chandra Sarkar and Ramesh Chandra Sarkar, the plaintiffs and the respondents respectively.

5. The defendants have received the compensation money for the said land measuring 1.20 acre without the knowledge of the plaintiffs. The plaintiffs have claimed not to have knowledge that such gift deed was executed by Ramesh Chandra Sarkar. Later on, the plaintiffs also came to know of the sale of the land measuring 0.73 acres in favour of Laxmi Dhanuk when the compensation money was awarded separately in favour of Smt. Laxmi Dhanuk. From the plaint, it can be gathered that under the said Khatians No.807/1 and 807/2, the total joint property was 4.42 acres. Out of which 2.91 acre was acquired and the compensation of Rs.23,69,597/- was awarded. The plaintiffs and the defendants of the suit h