Plaintiff can amend the plaint to claim possession based on a Survey Commissioner's report when the title of the defendant is not obstinate against clear evidence.

1. This appeal is directed against the judgment and decree dated 29.09.2021 and 01.10.2021 respectively of the Learned First Appellate Court, Belonia, South Tripura in connection with case No.T.A.No.14 of 2019 whereby and where under the Learned First Appellate Court also affirmed the judgment dated 15.03.2019 and consequential decree thereof delivered by Learned Civil Judge (Junior Division), Belonia, South Tripura in T.S. No.20 of 2008.

2. Heard Learned Counsel, Mr. Ratan Datta for the appellant and also heard Learned Senior Counsel, Mr. S. M. Chakraborty assisted by Learned Counsel, Ms. P. Chakraborty for the contesting respondents. Before entering into the merit of this appeal, let us project the subject matter of dispute amongst the rival parties at first. The appellant as plaintiff and other pro - respondents filed a suit bearing No.T.S.20 of 2008 against the respondent - defendants for declaration of right, title and interest and for recovery of possession over the suit land before the Court of Learned Civil Judge (Junior Division), Belonia, South Tripura.

3. It was the case of the appellant that his predecessor Nagendra Kr. Dey and other pro - respondents and the plaintiff, Gopal Dey were the owners in possession of 1.24 acres of land recorded in Khatian No.325 and 557 and after the death of said Nagendra Kr. Dey, the appellant - plaintiff and other pro - respondents being the heirs became the owner and possessor of the suit land. It was also alleged that on 08.12.2007, the defendant forcefully entered into some portion of land measuring 0.38 acres and thus, dispossessed the plaintiff and other pro - respondents from the said land. The plaintiff and other pro - respondents requested the defendant on several occasions to vacate his possession over the suit land, but he refused. Thereafter, the said plaintiff and other pro - respondents approached the Local Panchayat and thereafter to the Legal Service Authority at Belonia for resolution of the dispute. But the defendant did not accept the settlement and thereafter, the present appellant and other pro - respondents as plaintiffs filed the case for declaration of right, title and interest and for recovery of possession. In the said suit, the defendant - respondents appeared and contested the same by filing written statement, denying the case of the plaintiff - appellant and also submitted that the suit suffers from non - joinder of necessary parties and it was further submitted that the said defendant and plaintiff, Gopal Dey purchased 40 decimals of land from the father of the plaintiffs and after disposal he had left no land for his surviours. Thereafter, plaintiff, Gopal Dey also disposed of 40 decimals of land to one Pintu Dey by an unregistered deed. But that fact was suppressed. So, the contesting defendant by his written statement prayed for dismissal of the suit land with costs.

4. It is to be noted here that initially, Learned Civil Judge, Junior Division on the pleadings of the parties framed issues and after conclusion of trial by a judgment dated 21.09.2010 dismissed the suit and against the judgment, one appeal was framed by the plaintiff - appellant vide Title Appeal No.19 of 2010 before the Court of Learned Additional District Judge, South Tripura, Belonia and by judgment dated 15.06.2011, the judgment of the Learned Trial Court was set aside and the suit was remanded back with certain directions.

5. After remanding back the case record from the Learned First Appellate Court, Learned Trial Court below framed further issues afresh:
"i) Whether the suit is maintainable in its present form?
ii) Whethe