AI Structured Summary
Not yet generated for this judgment
Judgment
[1] For obvious reasons both the appeals are consolidated for disposal by a common judgment as these appeals filed under Section 100 of the CPC, arise from the Title Suit No. 114 of 2010 instituted in the court of the Civil Judge (Sr. Div), West Tripura, Agartala. The suit has been tried by the Civil Judge (Sr. Div), Court No.2, West Tripura, Agartala.
[2] At the time of admission, the common substantial question of law, which is reproduced hereinunder, was framed by the order dated 19.01.2016 in both the appeals:
"Whether the judgment and decree passed by the appellate court surfaced from perversity for non-appreciation of the pleadings and evidence on record."
Liberty was however given for raising further substantial question of law, if required in the hearing.
[3] It is noted that the appellant did not take any initiative to raise further substantial question of law. Understandably, for the reason that the substantial question of law as framed encompasses all probable questions. With all humility, the substantial question of law should not have been framed in such an overarching manner. A substantial question of law should always be structured in the manner so that substantial question of law can clearly be understood for the response. It is not to be searched out at the time of hearing.
[4] Be that as it may, this court would for a limited purpose, appreciate the evidence to see whether there is any perversity in appreciating the evidence.
[5] It is to be noted further that judgment dated 21.08.2015 delivered in Title Appeal No.30 of 2014 has been challenged in RSA 46 of 2015 (Smt. Dipali Bhowmik & 3 Ors. vs. Sudhir Malakar). The common judgment delivered in Cross Objection No.143 of 2014 has been challenged in RSA 47 of 2015. Title Appeal being 30 of 2014 was filed by the defendant-respondent (Sudhir Malakar) from the judgment and decree respectively dated 13.06.2014 and 20.06.2014 delivered in Title Suit 114 of 2010. The trial court by the said judgment dated 20.06.2014 declared the right and interest of the plaintiff and directed recovery of the suit land as described in the Part-A of the Schedule. In the Part-A, the schedule of the suit land measuring 0.21 acres comprised in Khatian No.694 pertaining to plot No.3514 [purchased by the registered sale deed no.1-2791 dated 06.04.1977] situated at Mouja-Singerbil, West Tripura has been described.
[6] By the said judgment dated 21.08.2015 delivered in Title Appeal No.30 of 2014, the first appellate court allowed the appealed by observing that the plaintiff could not at all specifically prove which one is the suit land she has claimed. Even there is no whisper from which portion of the land she was dispossessed from. Having appreciated the depositions of PWs 2, 3 & 5, the first appellate court could not find anything in support of incidence of dispossession from the suit land. Even the plaintiff No.1 and PW-4 did depose nothing about the dispossession. Hence, the judgment of the trial court got reversed and the appeal was allowed. But the cross objection was dismissed observing that for the same reason the suit cannot be decreed in respect of Part B & C of the schedule of the land. Even no separate reasoning has been provided for dismissing the cross objection.
[7] This court is constrained to note that even though the cross objection has been decided by the said judgment dated 21.08.2015, but in the cause title of the judgment, there is no reference of the cross objection or the parties in that cross objection. The first appellate court had to extend its due attention while framing the judgment. This court had to search out one single line at Para 12 of the judgment dated 21.08.2015 that by the same judgment the cross objection as filed by the plaintiff-appellants stood dismissed. It is apposite to note that the trial court did not decree the suit, so far the land pertaining to Parts B & C of the schedule of the suit land are concerned. Hence, the cross objection under Order 41 Rule 22 of the CPC had been determined as consequence of the finding returned in the appeal being Title Appeal No.30 of 2014. It is apparent, therefore, that both the appeals and cross objection have determined in the same perspective of fact. But it has not caused any prejudice. The relevant fact, therefore, required to be introduced briefly.
[8] The plaintiff-appellant filed the suit being Title Suit No.114 of 2010, as stated, claiming that the husband of the plaintiff-appellant No.1, namely Sukumar Bhowmik, who is the father of the remaining plaintiff-appellants, purchased the suit land measuring 0.96 acres by four registered sale deeds being 1-2791 dated 06.04.1977, 1-6507 dated 07.06.1976, 1-1623 dated 14.02.1978 and 1-1624 dated 14.02.1978 with definite boundaries. Sukumar Bhowmik purportedly got the possession of the entire land attracted by those four sale deeds measuring 0.96 acre. The predecessor of the plaintiff-appellants enjoyed the possession by planting trees and seasonal crops.
[9] On 21.01.1983, he had applied for mutation of the land, but during his life time, the mutation was not done. On 24.07.1995, he died leaving the plaintiffs as the legal heirs. There is no dispute that the plaintiff-appellants have their dwelling house at a short distance from the suit land. The plaintiff-appellants claimed to have continued the possession in the same manner. As the mutation proceeding was pending, the plaintiff-appellant No.1, in particular, persuaded the matter with the Revenue Authority. On culmination of MR case No.310, out of 0.96 acre of the land, the land measuring 0.92 acre was recorded in the name of the plaintiff-appellants as the legal heirs of Sukumar Bhowmik, the deceased husband of the plaintiff-appellant No.1. But the remaining 0.4 acre of land since was not mutated in their favour, they instituted a proceeding under Section 95 of the Tripura Land Revenue and Land Reforms Act, 1960 (TLR&LR Act in short). It has been asserted that at the time of institution of the suit, the said proceeding was inconclusive.
[10] The plaintiffs have asserted that the parents of the defendant (the sole respondent herein) had a residential house on the back side of the purchased land of Sukumar Bhowmik. Taking advantage of that possession, the defendant and his predecessor started pressurising the plaintiff to give up the possession of the suit land contending that he had purchased the same. On 15.03.2003, in the morning when the plaintiff No.1 went to the suit land, she found that the bamboo fencing had been put up along the boundaries of the said landed property by removing the bamboo fencing put up by them. She found that the trees and crops were removed and damaged. The plaintiff No.1 came to know that the defendant had done that mischief.
[11] According to the plaintiff-appellants, this is how they were dispossessed from their land on 15.03.2003. Their land has been described in Parts A, B & C of the schedule of the suit land. Even the defendant filed a revision petition to the District Collector under Section 95 of TLR&LR Act for correction of the record of rights opened in the name of the plaintiffs vide Khatian No.694. The defendant-respondent has contended in the proceeding that at the time of mutation, no notice was served on him and no physical inquiry was conducted to ascertain possession. The record of right (ROR) being Khatian No.694 was created fraudulently. The defendant-respondent denied that the plaintiff-appellants have any land as claimed in the suit. It has been categorically stated in the written statement that the suit land was owned by Sukhumoy Malakar, Ramani Mohan Deb, Mukhada Malakar, Birendra Chandra Dey, Manmohan Malakar and Mahendra Chandra Malakar jointly and the Khatian was published in their names on 18.01.1968 under No.1539, in respect of plots No.2782, 2785, 2787/4864 and 2788.
[12] Sukhamoy Malakar, son of Nagarbasi Malakar transferred the said land as attracted by Khatian No.1459 by the sale deed dated 15.03.1947 with area of land measuring 7 gandas 2 karas from the plot No. 2782 from Khatian No.1539 in favour of Raimanjuri Datta, wife of Sukhendu Datta. In the said sale deed, one Mokshada Malakar was shown on the eastern boundary. Raimanjuri Datta purchased the land measuring 3 gandas from the Plot No.2782 pertaining to Khatian No.1539 through the registered sale deed dated 05.10.1974 from Mokshada Malakar. In the sale deed, on the western boundary, Smt. Raimanjuri Datta was shown. Thus, 10 ½ gandas of land comprised in two sale deeds was located in front of the homestead of the defendant-respondent. Thereafter, the entire tract of land measuring 10 ½ gandas was purchased by Hirani Malakar, wife of late Mahendra Malakar and the mother of the defendant-respondent by the registered deed dated 10.08.1977.
[13] Thus, Hirani Malakar became the rightful owner and possessor of 10 ½ gandas of land. On the eastern boundary of that land, as purchased, there was a land of Hirani Malakar and on the western boundary, there was the land of Satsangha Ashram and Saila Bala Das. In the southern boundary, Hirani Malakar was shown as the occupier. Thus, 10 ½ gandas of land was in the front of the homestead of the defendant-respondent. Prior to that purchase, Hirani Malakar purchased a piece of land measuring 0.2 acre by the registered sale deed on 06.04.1977 from Mokshada Malakar.
[14] In the sale deed dated 06.04.1977, the eastern boundary, the land was shown to be of Sukumar Bhowmik who purchased the land on the same date from Mokshada Malakar. On the western boundary, Raimanjuri Datta was shown as the possessor in the said deed. The projected case of the defendant is that in the sale deed No.1-2791 by which Sukumar Bhowmik, the predecessor of the plaintiff-appellants purchased 0.22 acre of land from Mokshada Malakar on 06.04.1977, the southern boundary was shown to be shared with Mahendra Malakar, father of the defendant and in the western boundary, Hirani Malakar, mother of the defendant has been shown to be in the possession. Thus, according to the defendants, the plaintiff-appellants have no right, title and interest on any portion of the suit land. The defendant-respondent has further asserted that the land prescribed in Part-A of the schedule had been purchased by Hirani Malakar from Raimanjuri Datta and the predecessor of plaintiffs never purchased that land. Even though the land is attracted by the sale deed No.1-6507 dated 07.06.1976 by which the predecessor of the plaintiff-appellants purportedly purchased 0.30 acre of land, but it has been contended that it had not been specified what portion of the land was purchased.
[15] So far the sale deed No.1-1623 dated 14.02.1978 is concerned, it has been contended by the defendant-respondent that the sale deed does not cover any portion of the suit land. As regards the sale deed No.1-1624 dated 14.02.1978, it has been further asserted that in the south and in the west boundaries, the name of the defendant has been shown and that fact itself supports the hollowness of the claim of the plaintiff-appellants. It has been asserted as well that MR case No. 310 had not been drawn to its end, but in the Khatian No.1539, in the column No.24 the plaintiff- appellant's possession of the land has been indicated.
[16] In the appeal filed by the plaintiff-appellants, the principal ground that had been taken is that there is no proof of dispossession and there is no title document in support of ownership of the plaintiff-appellants over any part of the suit land. It is to be noted at this juncture that the trial court has returned a categorical finding that the boundaries of Part-A of the suit land [see the schedule in the plaint] are the boundaries of the land purchased by the sale deed No.1-2791 dated 06.04.1977.
[17] It has been found by the first appellate court that the sale deed No.1-2791 dated 06.04.1977, part of Ext. 3 series was not admitted in terms of the provision of Section 67 of the Indian Evidence Act. The first appellant court has observed in this regard as follows:
"....But the sale deed not being challenged by the defendant and the sale deed no.1-2791 dated 06.04.1977 being more than 30 years old, could be presumed to be genuine in view of the provision of Section 90 of the Indian Evidence Act. Accordingly, admitting the sale deed into evidence, learned court below declared the title of the plaintiffs over A‟ Schedule land. It is contended that in civil suits, pleadings form an important part and in the written statement, defendant denied beyond any uncertain terms that the registered sale deed had no basis so far as the claim of title and possession of the plaintiffs over the suit land was concerned. It is continued that having pleaded this and specific issues being framed on the point vide issue nos.2 and 3, learned court below totally misdirected itself in holding that the defendant did not challenge the sale deed under Exbt.3 series. It is next argued that in view of the stand of the defendant vis-a-vis the sale deed, the learned court below committed wrong in admitting the sale deed applying Section 90 of the Indian Evidence Act which was not at all applicable in this case."
[18] Even the first appellate court did not agree with the finding as returned by the trial court based on the evidence of PWs 2 to 6 holding that dispossession has been proved. The first appellant court alike the trial court found that there is no support from any title document in respect of the Parts B & C of the Schedule of the suit land. In the opinion of the first appellant court, the sale deeds were not proved in terms of Section 67 of the Indian Evidence Act, 1860 and notwithstanding the fact those are 30 years old, it has been observed that Section 90 of the Indian Evidence Act, 1860 would not have been pressed in proof of execution of the sale deeds vis-a-vis the suit land.
[19] In terms of that opinion, the execution of deeds would have been accepted but not their contents. For non-compliance of Section 67 of the Indian Evidence Act, the conclusion as drawn by the trial court had been interfered with. The first appellate court has also observed that in none of the sale deeds, there is any recital in respect of handing over possession of the purchased land. The first appellate court while re-appreciating the issue No.5, which deals with the dispossession of the plaintiff-appellants by the defendant-respondent, held that since the defendant was found in the occupation of the part of the land on 15.03.2003 and the occupation was corroborated by the evidence of PWs 2 to 6, the finding of the trial court was flawed.
[20] The trial court had held that plaintiff-appellants were dispossessed by the defendant from the suit land described in Part A of the Schedule. But the first appellate court has observed that, that finding has no root in the evidence inasmuch as Khatian No.1539 jer 3704 and 3705 (in the attestation stage) reflected the possession of Hirani Malakar over the plot nos. 3513, 3514 and 3526 arising out of the old plot no. 2782. But for the reasons as assigned by the first appellate court, it is held that the suit was liable to be dismissed. Accordingly, the appeal filed by the defendant-respondent was allowed and the cross objection of the plaintiffs was dismissed as the plaintiff-appellants could not succeed to satisfy the first appellate court that they have any title for the suit land as described in Part B & C of the Schedule of the suit land. Three pertinent points which emerge for consideration are- (1) In absence of any challenge against the sale deed No.1-2791 dated 06.04.1977 whether the title of plaintiff-appellants can be denied on the basis of Khatian which is published in the draft stage. (2) whether the suit land has been properly identified vis-à-vis the sale deeds and (3) whether the dispossession has proved in the evidence?
[21] Since there was a serious question of identification of land vis-a-vis the sale deeds, No.1-2791 dated 06.04.1977, 1-6507 dated 07.06.1976, 1-1623 dated 14.02.1978 and 1-1624 dated 14.02.1976, this court by the order dated 06.02.2019 made the following observation and direction by appointing the surveyor to survey in strict compliance to the points of reference:
The relevant part of the order dated 06.02.2019 is extracted hereunder:
"Having appreciated the records, this court finds that the documents along with other, the following documents were considered by the courts below:
Khatian Nos.1406/1, 1406/2, 1406/3, 58, 2303, 126, 1312 and 2304.
In Khatian No.694 [part of Exbt.1 series] the plots No.3513, 3514, 3523, 3524 and 3508 have been converted into 5[five] separate plots being 2782[part]. The said plots were recorded in the name of Sukumar Bhowmik, predecessor of the appellants herein. Sukumar Bhowmik purchased the suit land as described in Schedules-A,B & C by virtue of the sale deed under No.1-2791 dated 06.04.1977. For purpose of further reference, the description of the purchased land as provided in the said sale deed dated 06.04.1977 is reproduced hereunder:
"District- West Tripura, P.S. Narshingarh, Sub-Registry- Sadar, Tehshil- Lankamura, Pargana-Agartala, Mouja- Singerbil holding No.1019, land measuring 0.22 acres butted and bounded by:
North- Road;
South- Mahendra Malakar;
West- Sukumar Bhomik [vendee] and
East- Formerly Smt. Mokhada Malakar but at the time of purchased the land was under the possession and ownership of Hirani Malakar.
It is also not in dispute that the defendant also purchased the land measuring 10½ gandas and ½ gandas by two transactions from the said plot No.1782[part].
Briefly stated, the plaintiffs' case is that the plaintiffs have been dispossessed from the possession of the Schedule-A land by the defendant and that is the reason why the plaintiffs have instituted the suit for declaration of right, title and interest and recovery of possession of the land as covered by the Schedule-A land.
During hearing, Mr. S.M. Chakraborty, learned senior counsel appearing for the plaintiff-appellants has submitted that the description of the boundary should be given as the foundation for identifying the suit land, however the plot number as recorded in the Khatian may be collated. The defendants have, however completely denied that they have been in possession of the land as purchased by the plaintiffs. According to Mr. Chakraborty, learned senior counsel, the description of the boundary in the sale deed and the description in the schedule of the suit land, are not at difference. But Mr. D.K. Biswas, learned counsel appearing for the respondent has submitted that the plaintiff-appellants had never purchased the land pertaining to plot No.2788 [Exbt.3]. According to him, by manipulation during the survey settlement operation, the land of the plaintiff-appellants has been shown in the plot No.2782. That apart, Mr. Biswas, learned counsel has submitted that even the description of the boundary cannot clearly establish the identity of the land which has been referred as the suit land. The defendant-respondent has purchased the land pertaining to plots No.3513 and 3514. The plot No.3513 situates on the eastern side of the land of the defendant-respondent. A strip of the land between plots No.3513 & 3514 has been purchased by Hiranibala Malakar which situates in the eastern side of the plot No.3514. According to Mr. Biswas, learned counsel that the claim of the appellants is in respect of plot No.3514 pertaining to Khatian No.694. Indeed, the said plot they never purchased. That was purchased by the defendant-respondent. According to Mr. Biswas, learned counsel, the plot No.3514 which is on the eastern side of the plot No.3514 was purchased by the plaintiff-appellants. It is apparent from the records that both the courts below definite description did not make any inquiry about this discrepancy in the suit land vis-à-vis the title deeds [Exbts.3 & A]. The first appellate court has returned the finding viz. (i) the plaintiff-appellants have failed to prove the dispossession from the suit land and (ii) that the plaintiff-appellants have failed to prove when exactly the defendant-respondent came into possession over the suit property.
On the basis of these two findings, the suit was dismissed which was filed for declaration of right, title and interest in respect of the Schedule-A land and as consequence thereof, recovery of possession from the defendant-respondent. Initially, the trial court had declared the title in favour of the plaintiffs in respect of the suit land as described in Schedule-A, but denied to declare the right, title and interest in respect of the land as described in Schedules-B & C. Being agreement, the defendant-respondent filed an appeal whereas the plaintiff-appellants filed a cross objection being Civil Misc.143 of 2014. The plaintiffs' cross objection was against denial to declare the right, title and interest in respect of the Schedules-B & C land, whereas the defendant's appeal was against the finding of declaration of right, title and interest in respect of the suit land comprised in plot No.3514. There is no dispute at the bar that the appeal filed by the defendant-respondent was allowed and the cross objection of the plaintiff-appellants was dismissed entirely. Against the said finding returned by the first appellate court, these two appeals being RSA No.46 of 2015 and RSA No.47 of 2015 have been filed by the plaintiff-appellants from the common judgment and order dated 21.08.2015 delivered in Title Appeal No.30 of 2014. But the riddle remains the same.
Even though this court has been appreciating the records under the jurisdiction conferred by Section 100 of the CPC, but the non-appreciation of this aspect of the matter as narrated above, constitutes a substantial question of law, this court is of the view that the absence of appreciation may be considered the perverse appreciation of the materials on records. Thus, a limited inquiry in respect of the possession of the land vis-à-vis the title deeds is essentially required. Hence, the Director of Land Records & Settlement, Government of Tripura, Agartala is directed to nominate one of the expert Surveyors from his department to take on the field inquiry in order to identifying the land vis-a-vis the title deeds, record of right [ROR] and possession, in terms of the reference as would be recorded by this court hereinafter.
In this perspective, this court does order under Order XXVI Rule 9 of the CPC, the Surveyor as would be nominated by the Director of Land Records & Settlement will be treated as the Surveyor appointed by this court under Order XXVI Rule 9 of the CPC for making the local inquiry to determine:
(i) Whether there is any plot being Plot No.2788 [old] pertaining to Khatian No.1539 of Mouja-Singerbil. If such plot really exists, whether after revisional surveysettlement, the said plot has evolved in the new plot and if so, where the said plot has been recorded [in the Khatian and Mouja]. For this purpose, the Surveyor would tally the sale deed No.1-2791 dated 06.04.1977 [Exbt.3 series in title suit No.114 of 2010]. The relevant land records, settlement map may also be consulted for this purpose.
(ii) The Surveyor shall by the physical description of the boundary as provided in the said sale deed No.1-2791 dated 06.04.1977 identify the plot and find out categorically how the said plot has been recorded in the Khatian. For this purpose, Khatian No.694 of Mouja-Singerbil be referred as a specific reference has to be made inasmuch as in that Khatian as plots have been shown in the said title deed as 1782 [part] and in 6[six] different new plots viz. 1508, 1513, 1513-9370, 3514, 3523 and 3524. The Surveyor to draw the inference shall also identify the Schedule-A land, which according to the plaintiffs is the suit land.
For purpose of reference, the land as described in
Schedule-A is reproduced hereunder:
"Within District- West Tripura, Sub-Registry Office-Sadar, Tehshil- Lankamura, Mouja- Singerbil, Khatian No.694, Hal Plot No.3514 with an area of land measuring 0.21 decimal. The land is butted and bounded by:
North- Road;
South- Mahendra Malakar & others;
East- Plaintiffs.
West- Hirani Malakar"
The Surveyor may also consult with the relevant plaint.
(iii) The Surveyor shall identify from the settlement map, the strip of the land existing between the plots No.3514 and 3513 for determination of the title. After ascertaining the title or tallying with the sale deed [Exbt.3] and the sale deed [Exbt.A], the Surveyor shall come to the conclusion whether the plot No.3514 doesbelong to the plaintiff-appellants having attracted by their sale deed or not. In this regard, the physical boundary as provided in the sale deeds [Exbt.3 & A] are to be compared and collated with the settlement map for purpose of determining the area and their position in the map at the time of submitting the report. The relevant part of the settlement map be marked with different colours having regard to their ownership, possession and with reference to the old plot number and that be submitted before this court so that this court may come to an conclusion as regards the title holder of the plot No.3514 and as regards its possession as per the settlement record, if found available. The Surveyor may also note the physical possession.
The Director of Land Records and Settlement is further directed to communicate the nomination and the name of the Surveyor to the Registrar [Judicial]. The Surveyor with prior permission, can inspect the relevant records. Even with permission of the Registrar [Judicial] he can take out the photocopies of the records as he might require to complete the said local inquiry under the authority of this order. The Director of Land Records and Settlement shall further direct the Surveyor to complete the survey within 30 [thirty] days from the day of his nomination and within that stipulated time, he shall file the report before this court on priority basis. The remuneration would be the salary of 2[two] days of the Surveyor, as it is expected that the field inquiry will be completed within 2[two] days. Miscellaneous expenses shall also be reimbursed. The plaintiff-appellants shall bear the entire cost when the bill will be raised by the said Surveyor. It is made absolutely clear that this cost will be in addition to the remuneration as determined above. The Surveyor shall invariably submit the report to the Registrar [Judicial]. On submission of the bill, that shall be paid by the plaintiff-appellants within 7[seven] days therefrom. If the payment is complete and the report is placed on the record, this matter will be listed on 9th April, 2019 along with RSA No.47 of 2015.
The parties shall render all assistance that might be required during the survey. The Surveyor may notify the parties regarding the actual date of survey through the learned counsel on record. It is made clear that the absence of the parties from the field inquiry shall not impede the field inquiry, but two local people preferably those are living in neighboring plots may be requested to be present during the field inquiry."
[22] Pursuant to the said order 06.02.2019 delivered in RSA No.46 of 2015, the surveyor appointed by the Director of Land Record and Settlement has furnished the report with all necessary records in explanation of his report. The learned counsel for the parties despite being afforded with opportunity did not raise any objection against the said report and as such the said report under No.F.4(11)-SDM/PNT/REV/2019/475 dated 24.05.2019 is made part of the records of evidence and marked as Ext-X in series. The surveyor has made this categorical observation that the land measuring 2.22 acre has been recorded under old plot 2788, old Khatian 1529 of Mouja Singerbil. Against the said old plot no., holder of the title Sukhumoy Malakar has been shown but one Manindra Chandra Saha had been shown as the permissive possessor. It has been also observed that the said old plot number has been recorded as new plot 2800. The surveyor has categorically observed in respect of the said plot as follows:
" So as per the plot no.2788 (old) it is mismatched with the plaintiff possession and surrounding boundary described in registered deed no. 1-2791 dated 06.04.1977 and (certified copy of the registered deed enclosed in page-10) in connection of this plot no. the surrounding boundary described n the registered deed NO. 1-2792 dated 06.04.1977 is also mismatched with the respondent possession (photocopy of the registe4red deed enclosed in page no. 21-24)" In the sale deed no. 2791 dated 06.045.1977 the following physical boundary was described as
North Road
South-Mahendra Malakar
East-Plaintiff
West-Mokhada malakar (at present Hirani Malakar)
Thereafter, the surveyor has observed as follows:
The comparison of surroundings between saledeed no.2791 and practical are given below:
Table -A
Sl No.
Surroundings
Remarks
Sides
As per Deed
As per Field
1
North
Road
Road
Match with field.
2
South
Mahendra Malakar
Mahendra Malakar
Match with field.
3
East
Plaintiffs( Dipali Bhowmik and others)
Plaintiffs( Dipali Bhowmik and others)
Match with field.
4
West
Mokhada Malakar (At PresentHirani Malakar
ShailyaBala Das (Satsang Ashram)
Not Match with field.
In this connection I had to see several Deeds. 1) The comparison of surroundings between sale deed No.3672, 15/03/1974 (7.5 Ganda/15 satak land parched by Rai Manjari Datta from Sukhanmoy Malakar, one of the ladn owner of the old Khatian No.1539 (attached in page No.53) and as per field are given below:-
Table -B
Sl No.
Surroundings
Remarks
Sides
As per Deed
As per Field
1
North
Road
Road
Match with field.
2
South
Khelan Bala Sarkar W/o Sridamsarkar
Mahendra Malakar(TableC) or land owner of old khatian No.1539
Match with field.
3
East
Mokhada Malakar one of the land owner of old Khatian No.1539.
Mokhada Malakar one of the land owner of old Khatian N.1539.
Match with field.
4
West
Shailya Bala Das (Satsang Ashram)
ShailyaBala Das (Satsang Ashram)
Match with field.
In this connection I had to see several Deeds 2) The comparison of surroundings between sale deed No. 05/10/1974 (Area is not clear in Sale Deed. Land parched by Rai Manjari Datta from Mokhada Malakar, one of the land owner of old Khatian No.1539, and practical are given below:
Table -C
Sl No.
Surroundings
Remarks
Sides
As per Deed
As per Field
1
North
Road
Road
Match with field.
2
South
Mahendra Malakar
Land owner of old khatian No.1539.
Match with field.
3
East
Mokhada Malakar one of the land owner of old Khatian No.1539.
Mokhada Malakar one of the land owner of old Khatian N.1539.
Match with field.
4
West
Shailya Bala Das (Satsang Ashram)
Shailya Bala Das (Satsang Ashram)
Match with field.
To setting out a plot, North and South direction/boundaries play important role. In Table-A it is found that these two directions and East boundary are found correct but west boundary is not correct. But in Table-B it is found, if all surrounds are correct in deed the surround south should be Land owner of Old Khatian No. 1539. In place of Khelan Bala Sarkar, because Khelan Bala Sarkar (show in map) situated, far south from the land claimed by Respondent-2782/6125 plot (old) 2518 (new) and 2782/6125 plot (old) 2519 (new). But in Table-C it is found, all surrounds are correct in deed, but area is not clear in Sale Deed.
As per the surroundings of sale deeds, on the basis of North, South, East and West boundaries and area measuring (Filed Survey map enclosed in page 6-9) the plot identified as the plot 3514 (new).
At the time of revisional settlement Survey as per TLR& LR Rules, 1961, 65(1) after attestation in 16 No. form to be published to announce to every villagers to inspect between 30 days. And if survey officer desires he/she may extend the duration according to TLR & LR Rules, 1961, 65(2). If any objection raised by people then 17 No. form filled up and should be submitted by those people. After that, 18 No. form serve to all the objection parties fixing date and place for hearing the objection. TLR & LR Act 1960, 43(1) and TLR & LR Rules, 1961, 66(1), and instruct the parties to come with relevant documents. And if the objection found sustainable it is recorded in mutation Register. In this way, Smt. Dipali Bhwmik filled up 17 No. form (Case No.310, U/S 43(1) as per TLR & LR Act 1960, 43(1) and TLR & LR Rules 1961, 65 (1) and on a filed enquiry conducted by the Amin of Land Records and Settlement (Page No.44) on 29.08.1997 he found possession of Plaintiff on plot No.3514 (new), 3513 (new), 3523 (new), 3508 (new) and 3524 (new), all are the part of the old plot No.2782. And 18 No. form was served to all the objecting parties as per TLR & LR Acts 1960, 43 (1) and TLR & LR Rule, 1961, 66 (1). Hearing date was fixed on 17.06.1997 by Assistant Survey Officer and Khatian No.694 (new) opened in favour of plaintiff.
III) To determine iii) as instructed by the Hon'ble High Court
1) Settlement map (old and new) submitted with Traced map in enlarged scale to identify the said plot by colorful legend.
2) Sale deed no. 3672, 15/03/1974 and 9386, 05/10/1974 already tallied with sale deed No. 2791, 06.04.1977. The comparison of surroundings between sale deed No.2791 and 5664 are given below:
Sl No.
Surroundings
Remarks
Sides
As per Deed
As per Field
1
North
Road
Road
Match with field.
2
South
Sridam Sarkar and Smt. Hirani Malakar
Mahendra Malakar or Hirani Malakar
As per Deed No. 5664, 10/08/1977 surrounding in not fitted for the plot No.3214 (new) and also not matching with Table-B of determine (ii).
3
East
Smt. Hirani Malakar
Plaintiffs (Dipali Bhowmik and others)
As per Deed No. 2791, surrouonding is not matching with filed, because Deed No. 2791 and 2792 are register at same date, so perhaps the surroundings is as name of plaintiffs in place of smt. Hirani Malakar.
4
West
Shailya Bala Das (Satsang Ashram)
Mokhada Malakar (At Present Hirani Malakar)
As per Deed No.2791, surrounding is not Matching with field. But plaintiffs is claiming the sale deed No.2792 purchased on the west side of the plot 3514 (new), if it so, the surrounding is correct. But the surroundings of sale deed No. 2792 are not saying this.
3) In traced map in enlarged scale indentified the said plot by colourful legend with ownership and possession.
4) As per Tehsil report, it is found that the possession on plot 3514 (new) was under plaintiffs up to 17/06/1997. Relevant documents are submitted from page No. 39 to 49 but we do not find any possession of the plaintiff on the land No. 3515 (new).
5) As per the neighbour Smt. Ira Das, W/o Sri Shib Narayan Das, on 19/05/2019, a hutment of Smt. Dipali Bhwmik was situated just near a Moringa tree (Bengali name- Sajna Gach), the tree is situated on 3514 (new) and was not possessed by plaintiffs. The conversation occurred in presence of Amin of Lankamura, Sri Swapan Biswas.
6) Plaintiffs never possessed the suit land as per some local villagers statement, enclosed page No.50
7) As per the statement of inhabitant of Ushabazar, Sri Praddut Dhar Chowdhury, he is one of the important person involving in the land purchasing, there was a hutment near the said tree and the plot no.3514 (new) was purchased by plaintiff by the sale deed No.1-2792, dated 06.04.1977. Purchasing on the west side of plot NO. 3514 (new) that means Satsang Ashram side. The conversation occurred in presence of Amin of Lankamura, Sri Swapan Biswas.
8) If and the sale deed No.1-2792, dated 06.04.1977 situated on the west side of the plot No.3514 (new) that means Satsang Ashram side the surroundings of sale deed No.1-2792, dated 06.04.1977 is not saying this. A comparative hand sketch map of sale deed No. 1-2792, as per dated and claimed position of plaintiff, enclosed page No.54-55.
[23] In the schedule of the suit land there are three parts namely Part-A , Part-B and Part-C, Part-A land is comprised in Hal Plot No.3514(Khatian No. 694, Mouja Singerbill) measuring 0.21 acre. The said plot is claimed to have been purchased by the predecessor of the plaintiffs. According to the trial court, the said plot as described in the Part-A is attracted by the sale deed No.2791 dated 06.04.1977. In this regard, a report of the surveyor has supported the said findings inasmuch as in the Tehsil report, the said plot was shown to be under possession of the plaintiff upto 17.06.1977. In this regard, reference has been made to pages 39 to 49 to show the possession of the plaintiff-appellants over the said land. But it has been also stated that the entire plot NO. 3514 was not possessed by the plaintiff. It has been also stated in the report that the physical boundaries of the sale deed No.2791 matched with the actual physical boundary of the survey report (see Table-A of the report). Even on imposition of the sale deed of the predecessor of Sukumar Bhowmik, the sale deed No.3672 dated 15.03.1974 and the sale deed no. 9386 dated 05.10.1974, the sale deed No.2791 dated 06.04.1977 were tallied with. Though there is certain mismatch in the description on the western boundary, but the plot no. 3514 (new) did match.
[24] It is apparent from the report of the surveyor that if the land in the sale deed No. 1-2792 dated 06.04.1977 situated on the west side of the plot no. 3514, Satsanga Asharam side the surrounding (boundaries) of the sale deed 2791 dated 06.04.1977 is matching with the plot no. 3514, but the same does not occur with the sale deed 1-2792. The comparison or such imposition has been shown in the hand sketch map at page 54 and 55. The description is anomalous, but it confirms that the predecessor of the plaintiffs acquired the title over the plot No.3514 (new) by dint of the sale deed No.1-2791. Even from the sketch map prepared by the surveyor, the said inference is liable to be drawn. But about the other two parts namely Part-B & C, no definite inference cannot be withdrawn, even there is no adequate materials to support the claim of the plaintiff-appellants. So far the sale deed No.1-2791 dated 06.04.1977 is concerned, even the physical boundary does attract the said plot no.3514 measuring 0.21 acre. The dispossession from the said land stands corroborated by the report of the surveyor, if read with the evidence of the plaintiff No.1 given in the trial on 29.08.2011, 14.11.2011 & 27.02.2012. It may be further noted that the plaintiff No. 1 (PW-1) has categorically stated that her husband was in possession of the suit land and he was carrying out the farming activities through one Rajendra Sutradhar . After death of her husband on 15.03.2009 when she visited the said land she found her land had been fenced by removing the existing fence which was put up by her husband and she came to know that such act was perpetrated by the defendant. In the cross examination she categorically described the boundaries and denied that the plaintiff were never in the possession of the land described in the schedule. She has made categorical statement in the cross-examination that the suit has been instituted in respect of the plot covered by dag no.3514. She has denied that her husband did not possess the said suit land.
[25] The objection relating to admission of the document (the sale deed No.1-2791 etc) are concerned, the first appellate court has observed thus:
"Moreover, there is specific suggestion of the defendant that the suit land was never purchased and occupied by plaintiff No. 1 or by her husband and that Hirani Malakar had been in possession of the suit land since 10.08.1977. In that backdrop, Section 90 of the Indian Evidence Act could not have proved the execution of the sale deeds vis-a-vis the suit land just because these were more than 30 years old. At best, execution of the deeds could have been accepted but not the contents which was required to be decided taking into consideration other factors as well. In view of the total denial of the defendant about the plaintiff‟s case, the sale deeds ought to have been admitted into evidence in compliance of provision of Section 67 of the Indian Evidence Act, This conclusion finds support from the ratio of the case cited above from the side of the appellant. Para 3 of the judgment runs as follows:-
"[3] We will take first the objection that the presumption required by S. 90. Evidence Act, as to documents thirty years old has not been drawn. The learned District Judge has dealt with this question in para. 13 of his judgment. His view that in the circumstances of the case, the court was not bound to raise a presumption under S. 90, Evidence Act, and that the proper course was to mark them as exhibits without requiring formal proof and then consider, having regard to the evidence and surrounding circumstances, whether they were or were not genuine, is in accordance with the decision of this Court in 41 M.L.J. 310 Section 90, Evidence Act, states that the Court may draw the presumption referred to in the section and not that it must draw the presumption, and indeed in many cases, the present being one, it would be most dangerous to draw the presumption that a document was genuine merely because it was thirty years old according to the recitals in the document and came from proper custody."
[26] The interpretation of Section 90 of Indian Evidence Act is grossly erroneous inasmuch as a mere reading of Section 90 would take us to the core of the said provision that the presumption as to the existence of the document which is thirty years old. There is no dispute as regards the antiquity of the documents. But whether its admission was proper or not is the question that has been raised before the first appellate court. When the document is 30 years old and produced from the proper custody, the court may presume signature and every other part of the such document, which purports to be in the handwriting of the particular person and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. No question has been raised as regards the proper custody of the sale deeds. Neither to prevent the presumption, any evidence has been laid by the defendant (the respondent herein). Thus, the trial court had committed any mistake by presuming that the sale deed was duly executed/attested by the person by whom it purported to be executed and attested. Hence, the objection as to admission of the sale deed No. 1791 dated 06.041977 cannot be sustained. This court did not find any other material irregularity and illegality in appreciation of the evidence. But the concurrent finding in respect of the title of the lands described in Part-B and C of the schedule could not be established by evidence. Therefore, both the courts have correctly discarded the claim of the plaintiff.
[27] Hence, the judgment and decree respectively dated 13.06.2014 and 20.06.2014 delivered in Title Suit No.114 of 2010 is restored by setting aside the judgment and decree dated 21.08.2015 delivered in T.A. No. 30 of 2014, in exclusion of the judgment and decree dated 21.08.2015 as delivered for the cross objection No. 143 of 2014. The said judgment in the cross objection No 143 of 2014 stands affirmed.
In the result RSA 46 of 2015 stands allowed and RSA 47 of 2015 is dismissed.
Draw the decrees accordingly.
Before parting with the records, the registry is directed to place the surveyor's report marked as X series (64 sheets) by this court in the file of the suit being Title suit no. 114 of 2010 after the exhibited documents, on keeping a photocopy of the same in the file of RSA 46 of 2015.
Send down the records after preparation of the decree.