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Judgment
Heard Mr. DR Chowdhury, learned counsel appearing for the appellant.
This is an appeal under Section 100 from the judgment dated 03.04.2019 delivered in Title Appeal No. 45 of 2014 by the Addl. District Judge, West Tripura, Agartala, Court No. 2.
The respondents herein instituted a suit for recovery of the possession. According to the plaintiffs, the appellant (the defendant in the suit) is a permissive possessor. The plaintiffs have admitted that on 21.12.2002, they entered into an agreement for sale of the suit land with the appellant (the defendant) and the agreement was contingent in nature as the suit land indisputably is the allotted land, and no allotted land can be transferred by the allottee or even the possession can be parted with without the permission of the Collector of the District.
It has been admitted by the parties that on the condition that the plaintiff would apply for permission of the Collector and if the Collector granted the permission for the said transfer, after taking the remainder of the consideration money, the sale deed will be executed.
It has been also admitted by Mr. DR Choudhury, learned counsel who is appearing for the appellant that the plaintiff applied for such permission but the permission had not been granted by the Collector. The plaintiff, in that circumstance, approached the Civil Court (the court of the Civil Judge, Junior Division, Court No.1, Agartala, West Tripura) for declaration of right, title & interest over the suit land and nullity of the agreement dated 21.12.2002 being void, with consequential relief of the cancellation of the document and for recovery of the suit land.
The trial court by the judgment dated 11.04.2014 has decreed the suit being Title suit No. 50 of 2006. It has been declared by the Civil Court that the plaintiffs have got joint right, title and interest over the schedule B land (the suit land) and they are entitled to recover the vacant possession but it has been categorically observed that the plaintiffs are not entitled to get the possession of the schedule C land.
Further, it has been, by way of mandatory injunction, directed that the defendant shall hand over the vacant possession of the schedule B land to the plaintiff within 60 (sixty) days from the date of the decree by removing all obstructions therefrom. The agreement dated 21.12.2002 (Exhibit A) has been declared null, void and cancelled.
Being aggrieved by the judgment dated 04.12.2014 the present appellant filed an appeal under Section 96 of the CPC being Title Appeal No. 45 of 2014 which has been determined by the First Appellate Court (Addl. District Judge, West Tripura, Court No.2) by his judgment dated 03.04.2019.
The first appellate court has re-appraised the evidence and pleadings to revisit the issues framed by the civil court. Thereafter, the appellate court has discussed the ambit of Section 14 of the TLR & LR Act, 1960. As the reference was made to sub-section 3 of Section 14 of the TLR & LR Act, by the counsel for the appellant, the said sub-section is reproduced for purpose of showing the source of allotment which is however, further regulated by TLR & LR (Allotment) Rules.
"(3) The rules under sub-sections (1) and (2) for allotment of land shall provide for giving preference to the members of the co-operative farming societies formed by marginal farmers, landless agricultural labourers, jumias and members of the Scheduled Tribes and Scheduled Castes in allotting land."
Tripura Land Revenue and Land Reforms (Allotment Rules), 1980 provides vide Rule 12 (6) that the allotment would be liable to be cancelled for breach of any provisions of the Act, Rules or any other conditions of the allotment. According to Mr. Choudhury, learned counsel when any person is put into possession without due permission from the Collector, the said act violates the condition of Rule 12. This contention, however, has been rejected by the first appellate court.
The first appellate court has observed as follows:
"In the case at hand before the Learned Court below the respondents-plaintiffs denied the admissibility of the agreement dated on 21.12.2002 as unlawful but it is on record that they permitted the appellant to possess the same with certain condition which he failed to discharge but for that they also aggrieved to restore the money to the appellant which the appellant refused to take and from that act of the respondent- plaintiffs it appears that they had no mala fide intention to prejudice the appellant. Rather from the act and conduct of the defendant-appellant it appears that taking that advantage they forcefully detained the possession of the land as mentioned in Schedule-B of the plaint, which was totally unlawful and the defendant-appellant was liable to be evicted from the suit land as mentioned in the Schedule-B and the Learned Court below has rightly decided the said issue in favour of the respondent- plaintiffs and in my considered view, no error was committed by the Learned Court below in deciding the issue because on the basis of the permissive possession there was no scope on the part of the defendant-appellant to claim for valid right, title & interest on the same land. Hence, I find no infirmity in the judgment of the Learned Court below."
Since the plaintiff-respondents have admitted that they had received a sum of Rs.25,000/-, the first appellate court in exercise of its discretion, directed the plaintiffs for doing the substantive justice, to refund the sum of Rs.25,000/- to the defendant-appellant before the decree is put into execution through the court.
This order has not been challenged by the plaintiff-respondent. But the defendant-appellant has filed this appeal to contend that he is not evictable inasmuch as, in relation to the agreement, he was put in the possession and the obligation as created under the agreement, has not been observed as yet. As such, the defendant appellant has got right to continue with the possession.
Further, through Mr. DR Choudhury, learned counsel it has been urged that for breach committed by putting the defendant-appellant in possession, the plaintiff-respondent has become liable to be evicted by the Collector and as such the plaintiff-respondents do not have any right to evict him, as Mr. Choudhury, learned counsel has contended that cancellation of allotment is automatic.
Over that question, this court has given serious consideration. Nowhere, the defendant-appellant has denied that his status is not that of a permissive possessor. Even Mr. Choudhury, learned counsel has categorically stated that the agreement was performed even not partly, but he was put in the possession by a separate action. The plaintiff has pleaded in the plaint in the same way. The plaintiff has stated that he had entered in to an agreement with the defendant-appellant and on bona fide belief, he handed over the possession.
In such circumstances, this Court has failed to locate the right to continue in the possession. If there is any statutory recognition to hold the land, it is solely in favour of the plaintiff-respondents, as the allottees of the land. It is admitted position and as well has surfaced from the records that the competent authority has not canceled the allotment order issued in favour of the plaintiff. Neither, there is any proceeding for that purpose pending before them.
The other question that has been raised is that the Collector is to resume the possession of the suit land for breach as allegedly committed by the plaintiffs by putting the defendant in possession. According to this Court, the conduct of the plaintiff is in contrast to the condition of the allotment but there is no action for breach. This Court cannot act on assumption. But the plaintiff-respondents got a dominant right to possess the suit land and thus, the plaintiffs can exercise that right.
Having observed thus, this Court is bound to the inference that the agreement has been totally frustrated and moreover, the agreement that was entered, was not a lawful agreement from the very beginning. The Agreement is frustrated for the sole reason that the contingent clause can never be now acted upon for refusal of the permission by the Collector. Thus, this court does not find any infirmity in the declaration that the agreement is a nullity.
That apart, the permissive possessor does not hold any right to continue with the possession when the permission is recalled by the dominant possessor. Hence, there is no merit in this appeal and accordingly, the same stands dismissed.
The possession of the land be handed over of the plaintiffs within sixty days from the date of issuance of the decree without fail. The plaintiff will be entitled to put the decree into execution on observing the term as attached by the first appellate court, of payment of the money he had received at the time of entering into the agreement.
Prepare the decree in terms of the above.