Bini Chakma vs Raj Kishore Chakma And Ors

The instant second appeal is directed against the judgment and decree passed by the learned District Judge, North Tripura District on 23.10.2017 in connection with Title Appeal No.04 of 2017 modifying(reversing) the judgment and decree dated 23.11.2016 and 03.12.2016 passed by the learned Civil Judge(Junior Division), Kanchanpur, North Tripura District, in connection with Title Suit No.04 of 2015.

Heard Mr. R. Nandi, learned counsel appearing for the appellant as well as Mr. K.N. Bhattacharjee, learned senior counsel, assisted by Mr. P. Saha, learned counsel appearing for the respondents.

The facts in brief are as under:

The plaintiff-appellant has instituted a suit to pass a decree for possession of the suit land and to pass an order of eviction of the defendant-respondents from the suit land. It is stated in the plaint that the plaintiff and the defendants are the permanent residents of the same locality and the defendants are poor farmers who used to occupy and cultivate the schedule plot of land much prior to the allotment given in favour of the plaintiff. During settlement operation conducted by the competent authority of the State, the plaintiff Bini Chakma was allotted the schedule suit land in his name observing all the provisions for allotment of land under TLR & LR Act, 1960 and the said allotment remains unchallenged till today.

The plaintiff has further stated that he has been using the suit land for agricultural purpose without any disturbance. But, from the year 2008, both the defendants No.1 and 2 were collectively engaged for cultivation on the suit land and they were allowed to construct a temporary hut for the conveyance of their activities in the premises. The plaintiff never intended to gift/donate/sell/convey the suit land in favour of the defendants at any point of time in the past. Due to the misbehaviour and lack of sincerity on the part of the defendants, the plaintiff was compelled to ask the defendants for vacating the land, which was in fact led the relation to shore. The plaintiff also tried to resolve the matter by way of amicable settlement but to no avail, compelling him to institute the present suit for eviction of the defendants and for possession of the suit land.

The plaintiff has further stated that "depriving the plaintiff from exercising his right and control as the owner of the land is not only violation of law but also morally unacceptable. It is important to observe a social order where the rights of every individual are respected. The plaintiff had no other option but to seek remedy in the court of law for restoration of his rights on the suit land."

The defendant-respondents have contested the suit by way of filing written statement and have stated that for the last many years they have been possessing the suit land and cultivating the same. They have also constructed dwelling huts over the suit land much prior to the alleged allotment in favour of the plaintiff. The defendants have further stated that the plaintiff had never possessed the suit land and the plaintiff is a very wicked person and he somehow managed to get the allotment in his favour. But later on, on survey, when it is found that the defendants were in actual possession of the suit land, the competent authority of the State of Tripura has recorded the names of the defendants as forceful occupier of the suit land.

The plaintiff has adduced evidence which is the reflection of his plaint. The defendants also have adduced evidence and their evidence is also the reflection of their written statement.

After hearing the arguments of both the parties, the learned trial Court has decreed the suit in favour of the plaintiff.

Being aggrieved, the defendants have preferred an appeal before the first appellate Court and the first appellate Court reversed the finding of the learned trial Judge and dismissed the suit of the plaintiff.

Being aggrieved by and dissatisfied with the said dismissal of the suit, the plaintiff has preferred the present second appeal before this Court.

Mr. R. Nandi, learned counsel appearing for the appellant has tried to persuade this Court that the plaintiff-appellant has acquired title by dint of allotment order passed by the competent authority of the State of Tripura and he has been possessing the suit land by way of cultivating the same.

On the other hand, Mr. K.N. Bhattacharjee, learned Sr. counsel appearing for the defendant-respondents has submitted that the record of right i.e. the khatian itself shows that the names of the defendants have been recorded as forceful occupier of the suit land and from the pleadings of the plaintiff it becomes more apparent, where the plaintiff himself has admitted the fact that the suit land has been under occupation of the defendants even prior to the allotment order passed in his favour.

Having regard to the rival submissions of the learned counsels of the parties, I have given my thoughtful consideration whether any substantial question of law is involved in the instant second appeal. After careful reading of the pleadings made in the plaint it is revealed that the plaintiff himself has admitted the fact of possession of the defendants even prior to the allotment order passed by the competent authority of the State of Tripura. It is also admitted that the defendants have been using the suit land for agricultural purpose. When such admission of possession by the defendants has been made by the plaintiff, the said plaintiff has again stated later on that he has been possessing the suit land without any disturbance from any corners and the defendants were allowed to construct a temporary hut for the convenience of their activities in the suit land. The plaintiff has further stated that due to misbehaviour and lack of sincerity on the part of the defendants, the plaintiff was compelled to ask the defendants for vacating the land. Further, it is revealed that the plaintiff himself has stated that the defendants have wrongly exercised their rights as the owners of the suit land and it is in violation of law, which is not acceptable. The evidence led by the plaintiff based on the pleadings appears to be cryptic to this Court.

This Court wanted to see the allotment order passed by the competent authority, but, the learned counsel for the appellant has failed to bring the same on record. It means that there is no foundation of making entry of the name of the plaintiff in the record of right. It is now settled that the entry made relating to record of right or mutation or in khasra is not a document of title and it is a document of mere possession which also may be rebutted by way of adducing evidence. In the khatian, the names of the defendants have been recorded as "forceful occupier". The said entry has not been challenged at any point of time by the plaintiff. More so, it is surprising that the appellant has prayed for possession of the suit property under Section 5 of the Specific Relief Act, 1963 without asking for declaration of title and recovery of possession.

In my considered view, when the case is based on the present khatian i.e. record of right, and when it is surfaced that though the name of the plaintiff has been recorded as allottee, without any basic document i.e. the allotment order in favour of the plaintiff, in that circumstance, the plaintiff has failed to establish his title over the suit land. That apart, the record of right manifests that the defendants are the forceful occupier of the suit land. No further evidence is required for appreciation of the fact that the defendants are the forceful occupier of the suit land when the plaintiff himself has admitted that the defendants have been in possession of the suit land since long.

In course of admission of the present second appeal, the Court has formulated a substantial question of law as to whether Section 43 of the TLR & LR Act, 1963 confirms the title of the plaintiff-appellant?

In view of the analysis made above that record of right does not confer any title, and it merely symbolises possession, which also can be rebutted by way of evidence and when it is emanated from the khatian itself that the defendants are in possession of the suit land as forceful occupier, which is further admitted by the plaintiff himself, it is clear that the plaintiff has neither any title over the suit land nor any possession. It is also established principle of law that the plaintiff has to prove his case and he cannot bank upon the weakness of the defendants' case. The story of possession and dispossession also has not been proved.

In view of the aforesaid analysis, I find no merit in the present second appeal, and, accordingly the same is dismissed. The judgment and decree passed by the First Appellate Court(District Judge, North Tripura, Dharmanagar) in Title Appeal No.04 of 2017 is hereby affirmed and upheld. However, there shall be no order as to costs.

Send down the LCRs.