Dipali Nath And Ors vs Padmapur Club And Ors

This second appeal has been preferred by the plaintiff-appellants (here-in-after referred to as the plaintiffs) challenging the judgment and decree dated 06.08.2019 passed by the learned District Judge, North Tripura, Dharmanagar in Title Appeal no. 24 of 2018 reversing the judgment and decree dated 17.07.2018 passed by the learned Civil Judge, Senior Division, Dharmanagar, North Tripura in Title Suit no. 18 of 2016, decreeing the suit in favour of the plaintiffs.

At the time of admission of the appeal, after hearing Mr. KN Bhattacharjee, learned senior counsel assisted by Ms. R. Debbarma, learned counsel and on perusal of the judgments therein, I find no material to formulate substantial questions of law. As such, I have taken up the matter for disposal since, according to me, the present appeal involves only question of facts.

Briefly stated, the plaintiffs have instituted the Title suit No. 18 of 2016 against the respondent-defendants (here-in-after referred to as the defendants) including the proforma-defendant seeking declaration of recovery of possession, inter alia, stating that the plaintiff no.3, Braja Mohan Nath along with his brother late Rajmohan Nath, predecessors-in-interest of plaintiff nos.1 and 2 respectively, namely, Smt. Dipali Nath and Sri Ranjit Nath and proforma defendant no.7, Sri Ranadhir Nath purchased the suit land from the owners Sunil Kanti Nath and Sudip Kanti Nath vide registered Sale Deed no. 1-1372 dated 16.04.1999 and Sale Deed no. 1-1371 dated 16.04.1999 and became the owners and possessors of the suit land. Subsequently, after being noticed that RS plot numbers were wrongly mentioned, the same was corrected. It is the further case of the plaintiffs that on 06.07.2016 they were dispossessed by the defendants from the suit land and levelled some false allegations that there was proposal by the defendants for purchasing the suit land.

The defendants have contested the suit by filing written statement where they have taken the plea that they have been possessing the suit land since 15th September, 1980 infront of the eyes of the original owners of the land forcefully and within their knowledge as well as the people at large. They have stated that their possession has been continuous without any interruption and by elapse of time and being possessing the land beyond the statutory period, they have acquired right, title and interest adversely against the plaintiffs.

The defendant, namely, „Padmapur Club‟ is represented by its Secretary, Sri Tapan Nath Choudhury @ Tutan, and other members of the club, namely, Sri Surajit Adhikari, Sri Matilal Debnath, Sri Prabhata Nath and Sri Prasenjit Nath. Sri Ranadhir Nath being the son of late Rajmohan Nath has been made as proforma-defendant no.7.

The learned trial Court has framed issues. The plaintiffs have adduced evidence and also introduced some documents in support of their case. The defendants also have adduced evidence by producing six witnesses. They also have introduced two documents, namely, (i) copy of application under Section 95 of the TLR and LR Act duly received by the office of the District Magistrate & Collector, North Tripura, Dharmanagar as Exhibit-A and, (ii) certificate of registration of Padmapur Club as Exhibit-B.

After completion of recording of evidence, having heard the learned counsel appearing for the parties, the learned trial Court has held that the defendants have failed to establish their plea that their possession was not animus to the plaintiffs. Accordingly, decreed the suit in favour of the plaintiffs by way of passing the order that "the defendants to do put the plaintiffs and proforma-defendant no. 7 in possession of the suit land with immediate effect."

The defendant-Club has preferred first appeal before the court of the learned District Judge, North Tripura, Dharmanagar. The learned first appellate court after hearing the learned counsel appearing for the parties has dismissed the judgment passed by the learned trial Court and allowed the appeal preferred by the defendants accepting the plea of adverse possession, as raised by the defendants vide judgment and decree dated 17.07.2018.

Being aggrieved by and dis-satisfied with the said judgment and decree dated 17.07.2018, the plaintiffs have preferred the instant second appeal before this court.

I have heard Mr. KN Bhattacharjee, learned senior counsel and also have perused the copy of the plaint and the written statement as well as the judgment and decree passed by the courts below. As I have said earlier, after hearing learned senior counsel, in my opinion, the appellants-herein have failed to make out a case to formulate the substantial question of law. After meticulous perusal of the facts, as discussed and considered by the learned trial Court, I find that the learned trial Court has decreed the suit holding that the defendants have failed to establish the necessary ingredients of adverse possession. According to the learned trial Court, the defendants have been able only to prove that they have been in possession for several years since the time of the original owner of the land which became adverse w.e.f. 15th September, 1980 when the legal heirs of the original owners, namely, Narottam Nath and Nayan Nath tried to evict the Club from the land on that date i.e. on 15th September, 1980 since the defendants have been possessing the land adversely w.e.f. 15th September, 1980.

Further, the defendants have denied the story of the plaintiffs that on 06.07.2016 they were dispossessed by the plaintiffs from the suit land along with other allegations that they have made a proposal to the plaintiffs to purchase the suit land and this has given a cause of action to institute the suit for declaration and recovery of possession.

The defendants have categorically stated in their written statement that at the very initial stage the original owner i.e. Narottam Nath wanted to give the suit land in favour of the defendants as the Club was organizing so many cultural functions including different kind of games regularly and they also were performing the religious activities like organizing Durga Puja, the greatest festival of the State including other God and Goddesses but, during his life time, the original owner could not materialise it and thereafter, they started possessing the suit land adversely and particularly the day when the legal heirs of Narottan Nath and his brother Nayan Nath tried to evict them from the land on 15.09.1980 at the time of construction of Club building and since then the Club has been occupying/possessing the land against the legal heirs of Narottam Nath and Nayan Nath adversely by constructing building and hut forcefully over the suit land. It has also been pleaded that on many occasions to meet the expenses of the Club, they used to provide space for temporary construction of huts on rent over the suit land to many persons on condition that during festival and games they would vacate the same, which statement in the written statement have been proved by adducing evidence in course of trial.

Learned Senior Counsel has drawn my attention that Record of Right was created in favour of the plaintiffs which symbolizes their possession over the suit land. I have considered this submission of the learned senior counsel.

It is settled proposition of law that Record of Right or khatian or panchanama is definitely a document from which the court can draw a presumption that the said person in whose favour the Record of Right is created is the possessor of the said land, but, it is also settled that this presumption can be rebutted by cogent evidence. The learned first appellate court while rejecting this presumption has relied upon the evidence led by DW-6, Sri Rupan Kanti Nath who adduced evidence as DW-6 and has stated in his examination-in-chief that he came to know from his father that his father and uncle had sold the suit land under the possession of Padmapur Club to Rajmohan Nath and Brajamohan Nath without giving possession of the suit land on condition that they would take possession from the Padmapur Club and, for which the total consideration money was not paid to his father and it was told that after getting possession remaining consideration money would be paid and till the date they have not paid. This evidence of DW-6 remained unrebutted.

Another striking feature in the instant appeal is that the plaintiffs were all along represented by one of their appointed Attorney. It is noticed that Smt. Dipali Nath, Sri Ranjit Nath and Sri Brajamohan Nath (plaintiffs no. 1,2 and 3 respectively) have filed the plaint through one Smt. Anjana Nath, their lawful Attorney. Said Smt. Anjana Nath has also adduced evidence on behalf of the plaintiffs, and surprisingly, the plaintiffs, though on facts, it is found that they have been residing within the jurisdiction of the learned court, abstained themselves before the learned trial court for adducing evidence for the reasons best known to them. However, the proforma-defendant no.7 and his family were in London for a certain period of time.

In my opinion, the circumstances under which the plaintiffs had purchased the land and the facts which were exclusively within their knowledge, they should have come forward to adduce evidence. Moreso, the acts which are within the personal knowledge of the plaintiffs cannot be said to be within the knowledge of said Smt. Anjana Nath, their lawful Attorney. Factually, it is revealed that the Attorney in course of her cross-examination has expressed while answering the question put by the defendants that "I did not know".

The plaintiffs have added Sri Ranadhir Nath, son of late Rajmohan Nath as proforma-defendant no.7 and in the plaint it is pleaded that "Thus, the plaintiffs and proforma-defendant no.7 were dispossessed from the suit land after 24.03.2015 and on 06.07.2016". From the address mentioned in the plaint, it is revealed that all of the plaintiffs are residents of Dharmanagar within the jurisdiction of the learned courts below. Said proforma-defendant no.7 did not adduce evidence to support the case of the plaintiffs.

Furthermore, according to me, the acts and conducts of Padmapur Club and its members establish that they have been possessing the land with all hostility against the true owner i.e. since the time the legal heirs of Narottam Nath and Nayan Nath had tried to dispossess the defendants from the suit land on 15.09.1980. It is also apparent that the plaintiffs have failed to bring the vendors who transferred the suit land in favour of the plaintiffs in the witness-box to support the case of the plaintiffs that the vendors had handed over the possession of the suit land in favour of the plaintiffs.

After perusal of the pleading of the defendants in regard to the adverse possession and the evidence adduced in their favour, I am convinced with the findings of the learned appellate court that the defendants have been possessing the suit land adversely with all hostilities and fulfils the doctrine of animus possidendi.

In the light of aforesaid discussion, I find no infirmity in the judgment passed by the learned first appellate court, which is upheld and affirmed by this court. That apart, for the reasons stated here-in-above, I find no ground in the instant second appeal to formulate substantial question of law and admit this appeal.

Accordingly, the appeal is bereft of merit for admission and thus, dismissed at this stage.