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Judgment
[1] Heard Mr. D. R. Chowdhury, learned counsel appearing for the appellants as well as Mr. S. Lodh, learned counsel appearing for the plaintiff-respondents.
[2] The solitary substantial question of law that falls for consideration in this appeal under Section 100 of the CPC is as under:
"Whether the trial court has failed to inquire into the fact that suit was barred by limitation in terms of Section 3 of the Limitation Act, 1963 which provides that even if no defence is raised on limitation a court has saddled the duty to inquire whether the suit is barred by limitation or not."
[The substantial question as framed by the order dated 20.01.2017 has been rephrased or modified at the instance of the appellant]
[3] There is no dispute that the plaintiff and the proforma defendant of Title Suit being T.S. No.17 of 2010 are the close relatives of the original defendant. The defendant has filed this appeal against the concurrent finding of fact returned by the judgment dated 30.03.2016 delivered in Title App. No.03 of 2012 by the Additional District Judge, Khowai, West Tripura as he then was. The appellant died in pendency of the present appeal and in his place his legal heirs have been substituted.
[4] The essential fact that is required to be noted for appreciation of the substantial question of law is that the plaintiff-respondent filed the suit for declaration of title and recovery of possession by way of evicting the defendant-appellant [now represented by his LRs] from the suit land. The suit land has been described in the scheduled of the plaint, which is reproduced for reference hereunder:
SCHEDULE OF THE SUIT LAND
Within the District of West Tripura, P.S. Khowai, Tahashil: Ramchandraghat, Mouja: North Ramchandraghat, appertaining to Khatian No.425, having the C.S. Plot No.2751 (Part), 2751/3666 and R.S. Plot No.5500, 5502, 5503 for an area of 2.10 acre and bounded on the North: Dukhu Ghar, by South: Rajmon Ghosh, by East: Ramkrishna Paul, by West: Monmon Sarkar and Indu Bhusan Sarkar.
[5] According to the plaintiff, the defendant has been raised by him and he had given their marriage and they are now settled in their marital life. The defendant and his 3 (three) brothers inherited the property left by their father namely Bhabani Das. The Defendant, in his written statement has admitted that by an amicable partition of the inherited property, each of the brothers namely, Nagendra Chandra Das, Ramendra Chandra Das, Ranendra Chandra Das and Bhupendra Chandra Das got 18 Kanis of land each. Ramendra Chandra Das, father of the plaintiff and the proforma-defendant died prematurely when the plaintiff was 4-5 years of age. After death of Ramendra Chandra Das, the plaintiff's mother, according to the defendant, sold out 2 Kanis and 10 Gandas of land to one Ajit Paul. There had been subsequent sales. As a result, there remained 10 kanis of land.
[6] After 2/3 years of death of the plaintiff's father, her mother had expired. The defendant has stated that he had raised both the plaintiff and the proforma-respondent and gave them in marriage. In para-11 of the written statement, he has categorically admitted that even now 9 Kanis of land remained in the name of the plaintiff and the proforma-defendant and they got the said land demarcated and segregated. Therefore, the suit as filed by the plaintiff is not maintainable. There is no statement in respect of adverse possession by the defendant. On the contrary, the title has been admitted by the defendant.
[7] In para-12 of the written statement, the defendant has categorically stated that even the plaintiff and her sister [the proforma-defendant] got their land partitioned. However, she has stated that in the whole plot No.2751(p) 2751/3636, 2751 corresponding to new plots no.5500, 5502, 5503, pertaining to Khatian No.425 of Mouja-North Ramchandraghat, the plaintiff and the proforma defendant does not have any possession. She has stated that the land belong to them is under possession of the defendant.
[8] In the written statement, the defendant has raised objection as to limitation by stating that [see para-6] the suit is barred by limitation. There is no categorical denial in respect of para-11 of the plaint in the written statement. In para-11 of the plaint, the plaintiff has categorically stated that on 14.12.2009 the defendant denied to deliver the possession of the suit land which belongs to and her sister (the plaintiff-respondents). From that onward, in each and every day, the defendant started showing volta face. Even they asked the defendant to vacate the possession of the suit land. There is no denial about this episode in the written statement.
[9] According to Mr. D. R. Chowdhury, learned counsel for the appellant that suit land is under possession of the defendant since long, from when the plaintiff and her sister were very young. They were 'immature' even when, in the year 1993, they were given in the marriage, but they did not raise any question at that point of time.
[10] Mr. Chowdhury, learned counsel has further submitted that when they became major and they were entitled to the recovery of the possession, from that time the limitation should start to run and thus, 12 years be counted from that point of time and hence, the suit is barred by limitation.
[11] Though Mr. Choudhury, learned counsel for the appellant has not set up his argument on the basis of Article 65 of the scheduled to the Limitation Act, 1963 read with Section 27 of the Limitation Act, even the basic materials for that purpose is totally absent. That apart, the finding regarding the title returned by the courts below is not only concurrent in nature but this court does not find any perversity in that finding. Admission that is reflected in para-11 of the written statement is contrary to the position taken by the defendant-appellant.
[12] This court has framed the substantial questions of law even though no specific issue in respect of the limitation had been framed by the trial court. The trial court has framed the issue on whether the plaintiff has got any cause of action to institute the suit or not. But, as this court has found that in the written statement, an objection has been raised categorically in respect of the limitation and it is the fundamental duty of the civil court under Section 3 of the Limitation Act to determine the issue of limitation.
[13] The first appellate court has categorically observed that the plaintiff and the proforma-defendant were the joint owners [along with their mother, since deceased] of the suit land as described in the schedule measuring 2.10 acre and returned the following finding:
"This is the entire evidence on record. As mentioned earlier, the defendant did not exhibit any document in support of his case and relied only upon oral evidence. However, this is a civil suit which is based on documents and cannot be decided merely on the basis of oral evidence of witnesses. Although the defendant tried his best to establish that the plaintiff and her parent sold 10 kanis of land from their total share of 18 kanis to different people at different times but they could not produce any document in support of their contention. DW-2 Sri Shital Gope deposed that he is possessing 6 kanis 15 gandas of their land and DW-3 Sri Madhab Candra Das verbally stated that he is possessing 1 kani of their land by way of purchase through executing deed but neither of them could produce any document to establish their purchase or title over the aforesaid portion of land."
[14] The first appellate court on appreciation of the challenge laid by the defendant against the judgment dated 18.06.2012, delivered in Title Suit 17 of 2010, has affirmed the finding by observing as follows:
"Relates with issue No.3 I find that the plaintiff-respondent from her side adduce evidence and exhibited three documents out of which one is Khatian No.425 which is exhibited as Exhibit.1. Said Khatian clearly indicates that the present plaintiff-respondent and the proforma respondent are jointly owner of land measuring 2.10 acres. Said Khatian is finally published. In this regard though the present appellant taken a plea that during the lifetime of the father of the plaintiff respondent as well as proforma respondent he sold out some land and after his death the mother of appellant also sold out some land even the present plaintiff-respondent also sold out some land but these are not supported by any documentary evidence. Admittedly some witnesses from the side of the appellant adduced their evidence by supporting the above statement of the appellant but there is no documentary proof in this regard on record. Exhibit.3 is the judgment in Title Suit No.25 of 1990 and that suit was filed by the present plaintiff respondent against the present appellant for declaration of her right, title and interest and for permanent injunction. Learned trial court below in that case passed decree in favour of the present plaintiff-respondent declaring her right, title and interest as well as permanent injunction. But the appellate court in appeal vide Misc. Appeal No.07 of 1992 gave observation in the judgment that Perpetual injunction is not tenable in law, particularly because under the facts and circumstances of the case, the plaintiff respondent cannot be deemed to be the exclusive owner or possessor of the suit lands. Admittedly in that suit the present proforma respondent was not a party. According to the plaintiff-respondent she was jointly owner of the suit land with the proforma respondent and proforma respondent was minor at that time and was under the custody of the present appellant. So the observation of the appellate court that if the appellant contested the suit on behalf of the plaintiff-respondent and if any perpetual injunction is granted in respect of the suit land then it will amount to restrain the proforma respondent from possessing her share of the land and as such in that suit plaintiff-respondent was rightly not granted any permanent injunction but her little remained undisturbed." [Emphasis added]
[15] Having observed thus, by the judgment dated 30.03.2016, Title Appeal No.02 of 2016 filed by the defendant was dismissed. The said judgment is under challenge in this appeal. The defendant has not categorically pleaded anything how the suit is barred by limitation. The title of the land has been judicially declared, which cannot now be contested by the defendant. At least the defendant-appellant cannot dispute the title against the plaintiff. So far, the possession of the defendant is concerned, it is in the nature of permissive possession to trespass. Thus, from the date when the demand to return the vacant possession was denied, that will be the day from when the limitation shall run to expire.
[16] Thus, it is apparent that the suit has been filed within the period of limitation, inasmuch as the defendant has not categorically stated anything about the pleadings of the plaintiff at para-6 of the plaint.
[17] Mr. Lodh, learned counsel has submitted that the suit land is under the possession of the defendant-appellant. Therefore, based on the title, its recovery would serve the ends of justice. Hence, the decree passed by both the courts below cannot be disturbed for any reason, to say least on the plea of limitation.
[18] Having appreciated the submission made by the learned counsel for the parties, this court finds that what has been pleaded in para-6 of the plaint has remained totally unrebutted and untraversed. That is perhaps the reason why the trial court did not frame any issue on limitation inasmuch as it is apparent on the admitted fact that the suit cannot be treated as barred by limitation.
[19] Having observed thus, the substantial question as proposed and framed by this court, is answered in negative as the suit is not barred by limitation.
[20] Accordingly, this appeal stands dismissed. Draw the decree accordingly.
Send down the records thereafter.