Possession by one co-owner is not adverse without clear ouster; revenue records do not confer title.

1. This is an appeal under S.96 read with O.41 of CPC by the appellants against the judgment and preliminary decree dated 05.04.2022 delivered by Learned Civil Judge, Senior Division, Court No.1, West Tripura, Agartala in connection with Case No.T.S.(P)130 of 2017.

2. Heard Mr. S. Pandit, Learned counsel appearing for the appellants as well as Mr. Samarjit Bhattacharjee, Learned counsel appearing for the respondent - plaintiffs. None appears on behalf of the proforma - respondent No.3.

3. Before proceeding with the merit of this appeal, let us discuss about the subject matter of the suit filed before the Learned Trial Court. The respondent - plaintiffs filed a partition suit before the Court of Learned Civil Judge, Senior Division, Court No.1, West Tripura, Agartala seeking partition of the suit land as mentioned in schedule of the plaint. According to the respondent - plaintiffs, one Benimadhab Roy (since dead) was the father of the respondent - plaintiffs and one Ram Dulal Roy, the predecessor of the present appellants. Said Benimadhab Roy expired in the year 1986 leaving behind two daughters i.e. the respondent - plaintiffs herein and his son Ram Dulal Roy (since dead by this time) as his only legal heirs to succeed to his property as per law for inheritance and succession. After his death, his son and daughters inherited the said property in equal share. The respondent - plaintiffs in their plaint further alleged that on 08.01.2016 they requested Ram Dulal Roy, the predecessor of the present appellants for amicable partition of the suit land which was recorded in the name of said Ram Dulal Roy but in vain. After that, the respondent - plaintiffs filed petition for correction of ROR in respect of the suit land recorded in khatian Nos.1303/1 and 1303/2. It was further alleged that tehsildar of Uttar Champamura went for field enquiry but on 26.10.2017 said Ram Dulal Roy (since dead) threatened the plaintiffs. Thereafter, they filed the partition suit as alleged. On receipt of summons, said Ram Dulal Roy appeared and contested the same by filing written statement. In the written statement, said Ram Dulal Roy admitted that the suit land was belonging to his father and also admitted that the respondent - plaintiffs are also the legal heirs of said late Benimadhab Roy but Ram Dulal Roy questioned the maintainability of the suit and further submitted that record of right was prepared in his name on the basis of possession. So, no decree could be passed against him and finally prayed for dismissal of the suit with costs.

4. Upon the pleadings of the parties, following issues were framed by the Learned Trial Court :
"I) Whether the suit is maintainable in its present form and nature ?
II) Whether there is any cause of action ?
III) Whether the suit is insufficiently stamped ?
IV) Whether the suit land is liable to be partitioned amongst the plaintiff and the defendants ?
V) Whether the plaintiff is entitled to a decree of cancellation of Khatian No - 1303/1 and 1303/2 ?
VI) Whether the plaintiffs are entitled for a decree as prayed for ?
VII) Whether the plaintiffs are entitled for any other relief / reliefs ?"

5. Thereafter, in the meantime the case was posted for evidence. By that time, said Ram Dulal Roy expired and his legal heirs were substituted i.e. the present appellants and the proforma - respondent and inspite of receiving summons they did not turn up before the Court and finally, on the basis of evidence on record of the respondent - plaintiffs and on perusal of the documentary evidence on record, the Learned Trial Court delivered the judgment. For the sake of convenience, I would like to mention herein below the name of witnesses of the respondent - plaintiffs and the exhibited documents :
"1) Original Khatian No.645