Ananda Sadhu Jamatia And Ors vs State Of Tripura And Ors

Heard Mr. R. Datta, learned counsel appearing for the appellants as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.

The plaintiffs filed the suit for declaration of right, title and interest, and for recovery of possession and perpetual injunction against the defendants. According to the plaintiffs, they are the owners of the land as described in the Schedule-A and B of the plaint jointly and they have become the owners by inheritance inasmuch as, the land stood in the name of Kamini Kumar Jamatia and Tarani Kumar Jamatia as joint owners. On different dates which are not in dispute, the plaintiffs became the owners of the land jointly.

It is the case of the plaintiffs that the respondents No.1 and 2 [the defendants No.1 and 2 in the suit] were instrumental in dispossessing the plaintiffs from the part of Schedule-A and B land without lawful manner and constructed the office building of the Deputy Collector and Magistrate in the month of April, 1983 by occupying the land as described in the Schedule-C(i) in particular. In the month of November, 1989, those defendants [the respondents herein] constructed the office building for Tahashil Kachari by occupying the land of Schedule-C(ii) in particular, dispossessing the plaintiffs. In the month of April, 1995, the above mentioned defendants constructed the building as cement and rod go-down by occupying the land of Schedule-C(iii) in particular, of the plaint. Even a part of the land was occupied for construction of the SNP go-down and that part of the land has been described in the Schedule-C(iv) in particular. The plaintiffs issued notice upon the defendants on 19.09.2013 to vacate the suit property and hand over the possession to the plaintiffs, but they have not acted in accordance with the demand placed by the said notice dated 19.09.2013.

On the contrary, on 10.11.2013, the defendants threatened the plaintiffs to dispossess them from the remaining portion of the Schedule-A and B land. Hence, the suit under reference has been instituted by the plaintiffs. The defendants appeared and disputed the case of the plaintiffs by filing their written statements.

The defendants No.1 and 2 submitted a joint written statement by contending that the office building was constructed over the suit land for public purpose and there was no resistance by the plaintiffs at any point of time and hence, the allegation made against them are grossly untenable. The defendants No.5 and 6 filed another joint written statement stated inter alia that the suit land did not belong to Public Works Department (R & B) and the suit land as shown in the Schedule-C(iv) was acquired by the Land Acquisition Collector in the year 2009. Therefore, that possession cannot be questioned. The defendants No.3 and 4 submitted a joint written statement claiming that they do not have any office over the land as described in the Schedule-C(v). The office of Tripura State Electricity Corporation Limited, Killa Cell has been functioning in two rooms which were allowed to be occupied by the Killa Tahashil Office and another room was allowed to be occupied by the defendant No.6. So far the construction of the building is concerned, the defendants No.3 and 4 cannot be made liable nor any role can be attributed to them for purpose of dispossession or construction. But they are not denied that they have in possession over the building constructed over the land as described in Schedule-C(v). On the basis of the rival pleadings the following issues were framed by the trial court :

"(I) Is the suit maintainable in its present form and nature?

(II) Are the plaintiffs entitled to get a decree declaring their right, title and interest over the Schedule "A" and Schedule "B" of the plaint?

(III) Whether the plaintiffs are entitled to get a decree of recovery of vacant possession of "C" Schedule land by evicting the defendants?

(IV) Are the plaintiffs entitled to get a mesne profit as they prayed for?

(V) Any other relief/reliefs the parties are entitled to?"

It appears from the record that the plaintiffs examined five witnesses. They are Shri Ananda Mohan Jamatia [PW-1], Sri Bishnu Hari Jamatia [PW-2], Sri Ananya Kumar Jamatia [PW-3], Sri Gopi Charan Jamatia [PW-4] and Sri Ananda Jamatia [PW-5]. They have introduced few documentary evidence. The defendants No.3 and 4 adduced two witnesses and the defendants No.5 and 6 adduced one witness namely Sri Sristi Hari Jamatia [DW-1], Sri Raju Deb [DW-2] and Sri Dayal Sadhan Jamatia [DW-3]. But they did not adduce any record to prove their title over the suit land. Though in the written statement, the defendants No.5 and 6 claimed that the land described in the Schedule-C(vi) was acquired by the state, but no documentary evidence in that respect has been produced by them. The documentary evidence as produced by the plaintiffs are khatian No.63 [Exbt.1] and khatian No.64 [Exbt.2] of the concerned mouja and the demand notice for vacating the occupied land [Exbt.3] and the trace map of mouja [Exbt.4].

After appreciating the evidence, the trial court decided all the issues. The trial court has made a preliminary observation that no better evidence could be adduced by the plaintiffs to show that the defendant No.3 was in possession over the suit land. The defendants have disputed that the plaintiffs were dispossess from the suit land and if there is any dispossession that took place after 01.01.1969. It may be noted that the day has its own importance. After that day, the land of a tribal owner cannot be transferred without prior permission of the District Collector. If such transfer takes place, those will be ex-facie illegal. Even, the possession of non-tribal occupant would be unsustainable in law and they can be evicted drawn under a proceeding under Section 187 of the Tripura Land Revenue and Land Reforms Act, 1960 (TLR and LR Act, in short).

Mr. R. Datta, learned counsel appearing for the appellants [the plaintiffs] has submitted that the trial court has unequivocally declared the title of Schedule-A and B land in favour of the plaintiffs and the land described in various schedules under Schedule-C(i) to Schedule-C(vi) are the derivative land of Schedule-A and Schedule-B. In particular, he has referred to the finding returned under Issue No.II. Even though, such finding is little bit longish, a substantive part however requires to be extracted hereunder :

"Prior to decide this issue this Court is to decide whether the plaintiffs have right, title and interest over those lands or not.

It is alleged by the plaintiffs that they got the possession of the suit land, i.e., Schedule "A" and Schedule "B" land of the plaint from their predecessors. Schedule "A" land was in the names of Kaimini Kumar Jamatia and Tarani Kanta Jamatia as joint owners and possessors in equal shares. Tarani Kanta Jamatia being the owner of 50% share of "A" Schedules land died on 01.10.2005 leaving behind his only son Durpa Charan Jamatia and his wife as his legal heirs. But after his death his wife also died. As a result, his son Durpa Charan Jamatia along became the owner of 50% share on the "A" Scheduled land left by Tarani Kanta Jamatia. But Durpa Charan Jamatia died leaving behind his wife, i.e., the plaintiff No.6, his son, i.e., the plaintiff No.7 and his daughter, i.e., the plaintiff No.8 as his legal heirs who became the joint owners of 50% share of "A" Scheduled land left by Durpa Charan Jamatia.

On the other hand, Kamini Kumar Jamatia being the owner of rest 50% share of the "A" Scheduled land died on 11.11.2000 leaving behind his wife Debeswari Jamatia who died on 05.04.2010 and his 4(four) sons and 1(one) daughter who were mentioned as plaintiff Nos.1 to 5 in the plaint and so they became the joint owners of 50% share of "A" Scheduled land.

Regarding Schedule "B" land predecessor of plaintiff Nos.9 group Anaijya Kumar Jamatia along with plaintiff Nos.10, 11, 12 and 13 were the share holders of that land and after his death on 26.11.2013 his legal heirs, i.e., plaintiff Nos.9 group became the share holders along with the rest plaintiffs.

In support of such contention they submitted and proved the Khatian Nos.63 and 64 before this Court as Exhibit-1 and Exhibit-2 which clearly show the title of the plaintiffs over the suit land.

In this respect Learned Government Pleader raised the plea that the record of right is not a proof of title. So, plaintiffs must adduce sufficient evidence to prove their title besides the record of right.

As per Section 43(3) of the Tripura Land Revenue and Land Reforms Act every entry made in the Record of Rights as finally published shall be presumed to be correct until and unless contrary is proved.

Long before in a case reported in AIR 1937 PC 69 in between Kesho Prasad Vs Mr. Bhagjogna Kuu it was held that entries on such Government records are evidence of title mainly because they are good evidence of possession but if it contrary to the facts as to the possession at the time they were made they carry little, if any, weight.

In the case Narain Prasad Aggarwal (D) by L.Rs. Vs. State of M.P. reported in AIR 2007 SC 2349 it is held that record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but is beyond any doubt or dispute that such a presumption is rebuttable.

Situated thus, though a record of right is not a document of title but the entries made therein regarding the ownership of the property and its possession shall be treated as genuine until and unless it is rebutted by adducing proper evidence.

Even it is not necessary for the plaintiff to submit the basis of the record of right on which it was created to file a suit for right, title and interest.

In this respect Hon'ble Gauhati High Court, Agartala Bench, Agartala held in Narendra Chandra Deb and others Vs. Kamini Mohan Deb reported AIR 1979 NOC 169 (Gauhati) it was record of rights, claim a decree and the plaintiff in whose favour an entry is made not required to establish by supporting evidence that the entry was correctly made. It is not at all necessary for him to adduce evidence to establish that there was foundation for making the entry.

In this suit the defendants failed to adduce any documentary evidence to rebut the genuineness of the entries of the record of rights i.e. Exhibits 1 and 2."

Thereafter, the trial court has declared the right, title and interest of the plaintiffs over the suit land. The said finding has not been challenged by the defendants [the respondent herein]. As such, according to Mr. Datta, learned counsel the said finding has reached its finality. Mr. Datta, learned counsel has been highly critical of the finding as returned under the Issue No.IV whereby it has been observed that no cogent evidence has been adduced to prove that the damage has been made in the plaintiffs' landed property and for which, the plaintiffs are entitled to mesne profit. According to him, the construction and use of land have been quite categorically admitted by the defendants in the written statement. When some act has been admitted, no further evidence is required to be led. On the basis of that, the trial court ought to have assessed the damage to grant the decree of mesne profit. It is not denied that the plaintiffs have not laid any components based on which such damage can be established or assessed.

The trial court has observed that the mesne profit has to be determined on the basis of cogent evidence, not by assumption. After declaring the title, the trial court dismissed the suit by holding that if the state is under occupation, the plaintiffs ought to have approached the District Collector under Section 11(iii) of the TLR and LR Act, 1960 and if they were aggrieved by any order in that proceeding, they ought to have filed a suit under Section 11(iv) of the TLR and LR Act. That apart, the trial court has observed having referred to Bisweswar Bhowmik versus State of Tripura and Others reported in (2015) 1 TLR 62 that Section 188 of the TLR and LR Act has prescribed a bar on the jurisdiction of a Civil Court in general in respect of any matter arisen under the provisions of TLR and LR Act. The restriction, however, cannot altogether oust the jurisdiction of the Civil Court in respect of the matter where the Revenue Court and/or a Tribunal failed to exercise its jurisdiction according to law.

Having observed that, it has been finally inferred that the suit cannot be decreed despite the declaration of the title in favour of the plaintiffs.

Mr. Datta, learned counsel has therefore submitted that this finding as returned by the trial court in respect of maintainability suit in view of Section 188 of the TLR and LR Act is grossly erroneous and requires intervention of this court.

Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has fairly submitted that that finding is indefensible inasmuch as, in respect of the recovery of possession, Section 188 of the TLR and LR Act cannot create any bar. That apart, Mr. Debbarma, learned Addl. G.A. has submitted that the finding as returned under Para-14 placing reliance on a decision of this court in Hemalata Mallik and Others versus State of Tripura and Others is again erroneous, inasmuch as, the state and its officers cannot be treated as non-tribal entity. They are the authority of the sovereign. Therefore, the finding that the express provision of Section 187(f) of the TLR and LR Act is unequivocal as it has been mentioned that inspite of anything contained in any other law for the time being in force, no suit for declaration of "title" over any land belonging to the Scheduled Tribes shall lie in a Civil Court and no Civil Court shall pass a decree or order by which title of land stands transferred from a person belonging to the Scheduled Tribes to a person not belonging to the Schedules Tribes. The definition of a "person" is not available in the TLR and LR Act. The definition of a "person", as referred in respect of the status, be referred to Article 342 of the Constitution of India which provides that the President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. Except those persons who are designated as the Scheduled Tribe (under Article 342 of the Constitution of India), all other persons shall be designated as non-tribal in the context of the Act.

True it is that Section 187(1)(a)(b) of the TLR and LR Act provides an exclusive jurisdiction of restoration of the land alienated from the tribal owner. But in this case, the relation between the plaintiffs and the defendants cannot be treated as "Tribal" and "Non-Tribal" for purpose of applying the provisions of the said Section for purpose of restoration of alienated tribal land. Therefore, the only ground that emerges for consideration in this appeal is that whether, after declaring the title in favour of the plaintiffs, the ground that the suit is barred for existence of exclusive jurisdiction under Section 187(1)(a)(b) of the TLR and LR Act is unsustainable or whether for the bar of jurisdiction as has been created under Section 188 of the TLR and LR Act, can the suit be stated to have been barred.

Having appreciated the submissions made by the learned counsel for the parties and on notice of the statutory provision as referred above, this court is of the view that the appreciation of the trial court was wholly mis-directed, inasmuch as, the trespassers and the occupant never claim any adverse possession. But when they received the notice for vacation, it is apparent on the face of the evidence that they have denied to vacate the land and that act has given rise to the cause to the plaintiffs to approach the Civil Court for declaration of right, title and interest and recovery of the land under possession of the defendants by way of eviction. As, the respondents [the defendants] have not challenged the finding of the title and as they have not filed any appeal against the said judgment dated 10.07.2015, that issue be deemed to have reached its finality. Thus, the plaintiffs are to be deemed for all purposes as the owner of the suit land as described in various schedules appended to the plaint. The analogy that has been extended by the trial court that the plaintiffs ought to have approached this court under Section 11(3) of the TLR and LR Act is entirely misconceived. Section 11(3) of the TLR and LR Act encompasses when a private land is recorded in the name of the state and is made khash (the government land), in that circumstances, the person aggrieved by such order or alteration can approach under Section 11(3) of the TLR and LR Act for his remedy and if no remedy is provided to him, he has been given the scope of approaching the Civil Court qua Section 11(4) of the TLR and LR Act within a time of six months. That was not an issue when the records of right stand in the name of the plaintiffs or their predecessors. Therefore, there is no application of Section 11(3) of the TLR and LR Act. Thus, this finding is interfered with and set aside.

The next finding which has been extended by relying the provisions of Section 187 of the TLR and LR Act is again grossly misconceived. The state cannot treated as a non-tribal entity as it is the sovereign in respect of ownership of land or the superior owner. Even in the plaint, the plaintiffs have not asserted such claim. It is the innovation of the trial Court to frame and take up the issue for purpose of determining maintainability of the suit.

As already discussed, since, the state cannot be designated as non-tribal for the limited purpose of applying Section 187 of the TLR and LR Act for restoration of the possession, the suit cannot be declared barred under Section 187(f) of the TLR and LR Act. In a series of cases this court has held that when it is the matter of title and consequential relief is of recovery of possession the suit cannot be held barred under Section 188 of the TLR and LR Act qua Section 9 of the CPC.

In consequence of the admitted position of occupation/possession by the defendants and the title in favour of the plaintiffs, the defendants are liable to be evicted from the suit land and accordingly, the defendants are directed to vacate the suit land within a period of three months from the date of decree and if they do not vacate, the plaintiffs will be entitled to recover the suit land through the process of the court.

Having observed thus, we are persuaded to interfere with the said judgment dated 10.07.2015 and the consequential decree. Those are set aside and quashed. In the result, the appeal stands allowed in the following terms :

(1) the suit is decreed. The decree is issued declaring title of the suit land [Schedules A and B] of the plaint in favour of the plaintiffs. (2) The decree is issued directing the defendants to vacate the suit land as described in Schedules C(i) to C(v) of the plaint within a period of three months, failing which the plaintiff may recover the possession by the process of the court and (3) Costs.

Draw the decree accordingly.

Thereafter send down the records.