Kalpana Banik And Ors vs Manju Paul [Saha] And Ors

[1] This appeal has a chequred history. It is apparent from the records that by the order dated 26.02.2014, this appeal was dismissed for non-prosecution. Thereafter, an application for readmission of the said appeal was preferred by the appellants. By the order dated 02.05.2014, the said appeal was readmitted for hearing on merit. Again, by the order dated 13.08.2014, this appeal was dismissed for non-prosecution. Thereafter, the appellants filed further application for readmission being I.A.154 of 2015 in RSA No.06 of 2006 along with an application for condoning the delay of 334 days in filing the said application for readmission. By the order dated 23.11.2006, the prayer for condonation of delay was dismissed holding that the appellants were grossly negligent in prosecuting the action. As consequence of the said order dated 23.11.2016 passed in I.A. No.153 of 2015, the application for readmission being I.A. No.154 of 2015 was also dismissed. As consequence of the said order, the appeal was dismissed on the same day.

[2] Being aggrieved, the appellants preferred a Special Leave Petition [Civil] being SLP(C) No.2914 of 2019 to appeal against the said order dated 23.11.2016. Having the leave granted, the appeal being No.1248 of 2019 [arising from SLP(C) No.2914 of 2019] was heard by the apex court on 28.01.2019 and it was observed that the appellants are entitled to one chance and the matter ought to be heard on merit. For their lapse, the appellants were put to condition [for condonation of the delay] of making a deposit of sum of Rs.1,50,000/- to be paid within 2[two] weeks from the date of the order i.e. 28.01.2019. The said deposit was made by the appellants. Further, it was observed in the said order dated 28.01.2019 as follows:

"We request the High Court of Tripura at Agartala to dispose of the said RSA No.6 of 2006 as expeditiously as possible preferably within three months from the receipt of the order."

[3] When the matter was taken up in terms of the said order dated 28.01.2019, it was noticed that the respondent No.1 died interregnum. As a result, for substitution of his legal heirs due process was completed vide I.A. No.01 of 2019 in RSA No.06 of 2006. By the order dated 16.05.2019, the legal heirs of the respondent No.1 have been substituted and the appellants were directed to file the corrected cause title incorporating the names of the legal heirs of the respondent No.1. On 17.05.2019 such incorporation was complete and this appeal was taken up for hearing on day to day basis on providing due accommodation to the counsel for the parties within the time-frame as suggested by the apex court.

[4] The appeal was admitted on 13.02.2016 on the following substantial questions of law:

[1] Whether the court below has correctly decided the question of limitation by which the suit was barred; and

[2] Whether the decision of the court below about title on the basis of revenue record is sustainable?

The appellants have been given liberty to take up any other substantial question of law at the time of hearing. Mr. R. Mukherjee, learned counsel appearing for the appellants did not press for any additional substantial question of law on the onset of hearing. Thus, the appeal is to be heard on the substantial questions as formulated by the order dated 13.02.2006.

[5] The facts essential for having the perspective of the substantial questions need to be introduced at the outset.

The predecessor of the respondents in this appeal namely, Satish Chandra Paul, filed the suit being Title Suit 08 of 1989 [Satish Chandra Paul vs. Lalmohan Banik and others] in the court of the Munsiff [now the Civil Judge, Jr. Division] Sonamura, District- Tripura West, now Sepahijala District for declaration of title, confirmation of possession and perpetual injunction. The original defendant, namely Lalmohan Banik had expired during pendency of the suit and the appellants No.1,2,3,4 & 5 were substituted in his place being the legal heirs as the defendants No.1(a), 1(b), 1(c), 1(d) and 1(e).

The plaintiff's case in short is that in the year 1950, he was allotted a piece of land, measuring 0.10 acres, part of which is the suit land as described in the plaint. For purpose of reference, the description of the suit land from the plaint is reproduced hereunder:

"Within District- West Tripura, P.S. Sonamura, Mouja-Melaghar, land measuring 0.01 acre appertaining to CS Plot No.2626/4397 at present revisional survey plot No.3747 under Khatian No.1853, butted and bounded-

On the North by- Nagarbashi Chakraborty.

On the South by- Plaintiff.

On the East by- Defendants shop building.

On the West by-Plaintiff."

[6] The plaintiff has asserted in the plaint that the incidence of allotment is apparent from the certified copy of Talab Baki recorded in the year 1963. He has further asserted that it would be further evident from the rent receipt dated 20.05.1965 that he paid rent for the said 0.10 acre of land. According to the plaintiff, he entered into the said land in year 1950. He sold out a part of the land pertaining to CS Plot No.2627, measuring 0.04 acre, CS Plot No.2628/4388, measuring 0.01 acre and CS Plot No.2628/4388, measuring 0.01 acre remaining 0.01 acre from CS Plot No.2626 to one Prakash Chandra Rudra Paul. The said piece of land as sold out to Prakash Chandra Rudra Paul has been duly recorded in Khatian No.2512. The plaintiff continued his possession over the piece of land pertaining to CS Plot No.2626 measuring 0.04 acre. The plaintiff had constructed residential hut over that land to live with his family and such possession was uninterrupted till the day of filing the suit. In Para-4 of the plaint, the plaintiff has asserted that the defendant No.3 created some false documents beyond the knowledge of the plaintiff and got a piece of land measuring 0.01 acre as mutated on the basis of the said false document. After mutation, the new plot being 2626/4397, measuring 0.01 acre was created leaving only 0.03 acre of land in original CS Plot No.2626 in the name of the plaintiff. According to the plaintiff, the defendants No.1 & 2 had collaborated in creating the false document by which the CS Plot No.2626/4397, measuring 0.01 acre was mutated in the name of the defendants No.1 & 2 was transferred. Even though the plaintiff filed the objection against such mutation, but his objection was not entertained. Even the appellate authority while deciding the appeal did not favour the plaintiff. According to the plaintiff, it was observed by the appellate authority that during the revisional survey the matter could be relooked. Thereafter, the plaintiff has asserted by way of amendment as follows:

"During the revisional survey operation the said CS Plot No.2626/4397 has been again illegally recorded in the name of the defendants 1 and 2 in 50% share each showing forcible possession of the plaintiff therein since the year 1965 in Khatian No.1853 of Mouja-Melaghar. The said CS Plot No.2626/4397 has been recorded as CS Plot No.3747 in the revisional survey. The said 0.01 acre of land in CS Plot No.2626/4379 and revisional survey plot No.3747 of Mouja-Melaghar, P.S. Sonamura, Dist. West Tripura is the suit land of the instant suit land is fully described in the schedule below. The plaintiff has filed petition U/S 95 of the Tripura Land Revenue and Land Reforms Act, 1960 praying for deleting the names of the defendants 1 and 2 from the said revisinoal survey Khatian No.1853 of Mouja-Melaghar and the said petition is still pending. In written statements in Para-18, the defendants No.1 and 2 claim the suit land on the basis of they had purchased the suit land from defendant No.3 namely Shri Prahlad Das, S/O- Lt. Prasanna Das. On the other hand, the plaintiff did not sell the suit land to the defendant No.3. The defendant No.1 and 2 made two false voidable and inoperative registered sale deeds in collusion with defendant No.3. The vide said sale register deeds particulars are (i) A registered sale deed executed by the defendant No.3 on 04.06.1973 in favour of the defendant No.1 land measuring .01 acre. The vide deed No.1-3434 dated 04.06.1973 (ii) another registered sale deed executed by the defendant No.3 on 30.08.1973 in favour of defendant No.2 land measuring .01 acre [i.e. half satak]. The vide deed No.4381 dated 30.08.1973." [Emphasis added]

The suit land is attracted by both the registered sale deeds. The sale deed dated 04.06.1973 executed by the defendant No.3 [Prahllad Das] in favour of the defendant No.1 [Lalmohan Banik] has been admitted in the evidence as Exbt.6, whereas the sale deed dated 30.08.1973 executed by the defendant No.3 [Prahllad Das] in favour of the defendant No.2, Suresh Chandra Saha has been admitted in the evidence as Exbt.5. The land covered by both the sale deeds [Exbts.5 & 6] is measured at 0.01 acre. By the sale deed, Exbt.5, the land measuring .01 acre pertains to CS Plot No.2626/4397 pertaining to Khatian No.1853 of Mouja-Melaghar has been transferred. By the sale deed, Exbt.6, the land measuring 0.01 acre pertains to CS plot No.2626/4397 of Khatian No.1853 of Mouja-Melaghar has been transferred. Thus, it is apparent on the face of record that in respect of the same land the defendant No.3 [Prahllad Chandra Das] executed two deeds of sale [Exbts.5 & 6]. Exbt.6 was executed on 04.06.1973 whereas Exbt.5 was on 30.08.1973 by the same owner. Therefore, it can be safely stated that the defendant No.3 was not competent to execute the deed dated 30.08.1973, as on 30.08.1973 the defendant No.1 [Lalmohan Banik] was the owner of the land described in the subsequent deed dated 30.08.1973. The plaintiff had categorically pleaded that the defendant No.3 [Prahllad Das or Prahllad Chandra Das] did not and could not produce any deed to show that the plaintiff had sold the suit land to the defendant No.3. Hence, both the deeds are voidable and on the basis of those, no title can be claimed by anyone. However, on the basis of those deeds, Khatian was mutated showing both the defendants No.1 & 2 as the co-sharer of the said land, measuring 0.01 acre [the suit land]. The plaintiff was shown as the forceful occupier since the year 1965 in the record of rights [Khatian]. There is no dispute about the retained land of the plaintiff, measuring 0.03 acre. As the defendants No.1 & 2 in collusion with the defendant No.3 were preparing to put the fencing around the suit land by applying force, the suit has been instituted for declaration of title of the suit land in favour of the plaintiff with pleading that the sale deeds [Exbts.5 & 6] are voidable, inoperative and fake. The suit is also for confirmation of possession of the plaintiff on the suit land. That apart, the consequential relief of perpetual injunction for restraining the defendants and their agents has been sought. But by way of amendment carried out in terms of the order dated 04.06.2001, the challenge against the said deeds was not incorporated in the consolidated plaint as submitted on 09.10.2001. But the pleadings were not substantively changed in this regard.

[7] The defendants filed a combined written statement on 28.06.1989. In the written statement, the defendants had categorically asserted as under:

"As the plaintiff relinquished and waved out his all right, title, interest and possession over the suit land by selling out the same to the defendant No.1 by executing and registering valid sale deed vide sale deed No.1-4168 of 1973. Hence, the plaintiff is estopped to sue against the defendants in respect of the said plot of land."

But the defendants have denied that the plaintiff entered into the state of Tripura on 05.03.1950. Even the defendants have admitted that the plaintiff had sold out a piece of land measuring 0.06 acre from three plots to Prakash Chandra Rudra Paul. The entire plaint-case has been denied by the defendants. Further, the defendants have stated that the plaintiff has suppressed the real fact of selling out of 0.01 acre from plot No.2626 of Mouja-Melaghar to the answering defendant No.1 by registered sale deed No.1-4168 of 1973. The defendant No.1 is the owner in possession of 0.02 acre of land by way of purchase. Thereafter, strangely ,the defendants have stated that by way of purchase of 0.01 acre under CS Plot No.2626 of Mouja-Melaghar from the plaintiff as per the registered sale deed No.1-4168 of 1973 and the rest 0.01 acre under CS Plot No.2626/4397 from the defendant No.3 by a valid registered sale deed and the said transaction has led mutation in the name of the defendant No.1. It has been further asserted that the defendant No.2 is also the owner in possession of the land measuring 0.01 acre under CS Plot No.2625 and 2626/4397 of Mouja-Melaghar by way of purchase from the defendant No.3 against the valid registered sale deed. The defendants are in exclusive possession of the said land. At this juncture, it is worthwhile to note that the plaintiff did not raise any claim against CS Plot No.2625. In Para-16 of the written statement, the defendants have made a mismatch while giving the description of the purported purchased land from the plaintiff. Once it has been stated as CS Plot No.2626 and later, it has been stated as CS Plot No.2625. It cannot be denied that the suit land is the land as described in the plaint as CS Plot No.2626/4397 corresponding to revisional plot No.3747 under Khatian No.1853. Therefore, the statement in respect of land pertaining to CS Plot Nos.2626 or 2625 does not have any relevance in the present controversy.

[8] The plaintiff got the temporary injunction at the beginning against the defendants and the said order was even maintained in the appeal being Misc. App. No.19 of 1990 [judgment and order dated 07.08.1991] preferred by the defendants, but the said order dated 07.08.1991 was partly interfered by the order dated 04.07.1996, delivered in Civil Revision No.41 of 1991 by the Gauhati High Court which had the jurisdiction at the relevant point of time. By the said order dated 04.07.1996 a receiver was appointed over the suit property till disposal of the suit. Finally, by the judgment dated 17.12.2003, the suit has been decreed observing inter alia that the plaintiffs proved their case that the defendant No.3 had no right, title and interest over the suit land and as consequence of that, the sale deeds [Exbts.5 & 6] have been declared void and inoperative in the eye of law. Thus, the receiver was directed to hand over the suit land to the plaintiff after expiry of the appeal period.

Being aggrieved by that judgment dated 17.12.2003, the defendants filed an appeal under Section 96 of the CPC being Title Appeal No.04 of 2004 which was dismissed by the impugned judgment dated 14.11.2005 by the Addl. District Judge, Sonamura, West Tripura. For determining the controversy as raised in the suit, the following issues were framed:

i] Whether the suit is maintainable in its present form and nature?

ii] Whether the suit is bad for non-joinder and mis-joinder of necessary parties?

iii] Whether the plaintiffs have cause of action for filing the suit?

iv] Whether the plaintiffs have right, title and interest over the suit land?

v] Whether the plaintiffs sold out the suit land to Sri Lalmohan Banik, now deceased, by executing a registered sale deed on 09.08.1973 and the record of right prepared in the name of deceased Lalmohan Banik is proper and valid?

vi] Whether the plaintiff is entitled to a decree as prayed for?

vii] To what reliefs the parties are entitled? Additional Issues:

viii] Whether the sale deed vide No.1-3434 dated 04.06.1973 and sale deed vide No.4381 dated 30.08.1973 are voidable and inoperative?

ix] Whether the plaintiff is entitled to a decree of perpetual injunction?

[9] The issues No.iv, v & viii are relevant for determining the substantial question No.2 as formulated by the order dated 30.02.2014. It is also evident that no specific issue has been framed on the question whether the suit is barred by limitation. But the substantial question No.1 is structured on the question of limitation whether the suit is barred by the prescribed limitation. Over those aspects of the matter, the trial court has observed as follows, in the judgment dated 17.12.2013 in Title Suit No.8 of 1989:

"In the instant case the plaintiff prays for void declaration the registered sale deed No.1-3434 dt.4.6.1973 and the registered sale deed No.4381 dt.30.8.73. But on perusal of the evidence on record and pleadings of both the parties it reveals that the plaintiffs came to know the existence of the said sale deeds within the period of 3 years from the date of filing the instant suit. So it reveals that the suit is not barred by limitation. Further from the evidence on record reveals that on 13.1.98 the defendant tried to dispossess the plaintiff from the suit land. So it transpires that the plaintiffs has cause of action to file the instant suit. Hence, this issue No.1,2 and 3 are decided in favour of the plaintiffs and against the defendant." [Emphasis added]

[10] The first appellate court has, on the basis of the grounds of objection elaborately recorded the contention of the appellants herein on the question of limitation that the suit was instituted on 29.03.1989 by filing the plaint [the amendment, included] where it has been alleged that those defendants by dint of Exbts.5 & 6, got the land in their name illegally, but the plaintiff did not, in the original plaint, seek any relief for cancellation and for declaring those documents [Exbts.5 & 6] void and inoperative but the challenge was made by the amendment, which was sought to be carried out by filing an application under Order VI Rule 17 of the CPC on 26.03.2001 and as such, the amendment was barred in view of limitation prescribed under Article 59 [in the schedule] of the Limitation Act, inasmuch as the questioned documents were executed on 04.06.1973 and 30.08.1973. According to the appellants, the new cause introduced by the amendment was hopelessly barred by limitation. But it has not been disputed that in the original plaint it was categorically pleaded that the defendant No.3 in connivance with the defendants No.1 & 2 created some sham documents and got the suit land mutated in the names of the defendants No.1 & 2, did not seek declaration despite that the plaintiff in respect of those documents to be void and inoperative on causing the discovery. It is also not in dispute that in the written statement some particulars of those documents [Exbts.5 & 6] are disclosed. In this context, the first appellate court has observed that the particulars of the deed of sale have not been disclosed in the written statement, even though those were executed in the year 1973. There is nothing on record to show that the plaintiff did ask for declaration of those deeds as void and inoperative in spite of his knowledge of particulars of the deeds. But indisputably there are pleadings, as incorporated by way of the said amendment. But indisputably there are pleadings incorporated by way of the said amendment. Thereafter, it has been categorically observed as under:

"I also find nothing on record to show that the amendment of the plaint was sought three years after having knowledge of the particulars of the said deeds. Considering the facts and circumstances of the suit, I am of the opinion that Ld. Civil Judge [Jr. Div] was right in deciding that the suit was not barred by limitation and therefore, this ground advanced by the Ld. counsel for the appellants does not hold good." [Emphasis added]

[11] Even though the substantial question No.2 is structured on whether based on the revenue record the decision on title can be sustained or not, but again for purpose of having the basis of declaration of such title, the finding of the first appellate court is relevant inasmuch as the other parts of the findings are not put under challenge in this appeal. Hence, the relevant part is extracted hereunder:

"19. Now coming to the question as to whether Ld. Civil Judge (Jr. Div) Sonamura, decreed the suit correctly. Let me discuss some of the evidence on record. The deceased plaintiff Satish Ch. Paul claimed that 0.10 acre of land was allotted to him and he used to pay land revenue for that regularly. He produced certified copy of „Talab Baki‟ of 1963 (Exbt.1) and a revenue receipt dated 20.05.65 (Exbt.2). The Exbt.1 revealed that 0.10 acre of land appertaining to C.S. Plots No. 2626, 2627, 2628/4388 and 2628/4389 within Jote No.1084 of mouja Melaghar was recorded in the name of the deceased plaintiff. Exbt.2 revealed that the plaintiff paid revenue for the said land. On the other hand, the defendants No. 1 & 2 claimed that they purchased 0.01 acre of land appertaining to C.S. Plot No.2626 each from the plaintiff and another 0.01 acre of land of C.S. Plot No. 2626 from the defendant No.3 Prahlad Das. Therefore, the title of the plaintiff to the land appertaining to C.S. Plot No. 2626 had been admitted by the defendants No. 1 & 2. If they had purchased part of the C.S. Plot No. 2626 from Prahlad Das, it was incumbent upon them to prove that said Prahlad Das had right, title and interest to the land of C.S. Pot No.2626. This is because some plot of land cannot be owned by two persons at a time. Though the defendants produced two sale deeds (Exbts.5 & 6) shown to have been executed by defendant No. 3 Prahlad Das., they failed to produce any document in support of his ownership of the suit land. A person having no title cannot transfer the same in favour of others. Mere creation of document is not sufficient to pass the title if the person who executed the document had no title. Defendant No.3 Prahlad Das, who was a party to the suit did not either produce any document in support of his title to the suit land or give any oral evidence. Since the defendant No.3 had no title to the suit land, no title passed to the defendants No. 1 & 2 by execution of the sale deeds No. -3434 dated 4.6.73 and 1-4381 dated 30.8.73. Therefore those two deeds were void and in-operative. Possession follows the title. Since the deceased plaintiff had right, title and interest to the suit land it goes without saying, until the contrary is proved, that the plaintiff had also been possessing the suit land. Therefore, I find no reason as to why the judgment and decree passed by the Ld. Civil Judge (Jr. Division) Sonamura, in T.S.8/89 be interfered with." [Emphasis added]

[12] Preceding to the said observation made by the first appellate court, the trial court by its judgment dated 17.12.2003 had observed that (i) Exbt.1, Talab Baki reveals that the said Talab Baki was created in the name of Satish Ch. Paul, the predecessor of the plaintiffs, against the jote No.1084. On perusal of the revenue receipt [Exbt.2] issued against the holding No.1084 in the name of the predecessor of the plaintiffs that holding No.1084 was posted in the name of Satish Chandra Paul, the predecessor. The Khatian at the draft stage [Exbt.3] has recorded the name of the defendants No.1 & 2 as the rayat [the holder of title] and under column No.24, the name of the original plaintiff [the predecessor of the plaintiffs], namely Satish Chandra Paul has been recorded as 'forceful' occupier since 1965. The suit land is comprised in the said Khatian. (ii) From reading of Exbt.4 and the deposition of PWs, it reveals that against the said entry made in the Khatian No.1853, the original plaintiff filed an appeal under Section 93 of the TLR & LR Act, 1960 before the Director of Land Records & Settlement [the appellate authority]. Further, Exbt.4 [the draft Khatian] shows that the Director of Land Records & Settlement by the order dated 25.02.1994 had observed that since the matter was sub-judice in a proceeding before the Gauhati High Court, the Settlement Officer was perfectly justified in ordering not to change the record of rights during the pendency of the suit. Thus, the appeal was dismissed. (iii) From the written statement of the defendants, it reveals that in Para-7, the defendants have stated that the original plaintiff relinquished and waived all his right, title, interest and possessions over the suit land by selling out the same to the defendant No.1 by executing a registered valid sale deed being the sale deed No.1-4168 of 1973. Thus, it further reveals that the defendants admitted that the plaintiff was the owner of the suit land. It is settled law that the admitted fact need not be proved. Thus, the onus of proving that the plaintiff had sold out the suit land to the defendant No.1 by the registered sale deed No.1-4168 of 1973 lies on the defendants but the defendants did not adduce the said sale deed in the proceeding. Even no further evidence was advanced to show that the original plaintiff sold out the suit land to the defendant No.1. (iv) The defendants are inconsistent in their plea. In one hand, they have claimed to have purchased the suit land from the plaintiff and on the other hand, they had claimed that they had purchased the suit land from Prahllad Das [the defendant No.3], as already discussed. (v) It is revealed that CS plot No.2626/4397 came into existence out of CS plot No.2626. Therefore, the onus is on the defendants to show that the suit land was sold to the defendants or to their predecessor in interest namely Prahallad Das, but the defendants have failed to establish such fact which is essentially required for inferring title in their favour. But it has been also recorded that the defendants even though adduced Khatian No.1853 in the name of the defendants No.1 & 2 along with the revenue receipt but they did not introduce the title deed executed by the original plaintiff in favour of the defendant No.3. The said entry in the Khatian No.1853 was challenged and no decision on merit was taken as the subject matter was sub-judice in a proceeding in the High Court. But from the Khatian No.1853, the possession of the original plaintiff since 1965 has been proved. (vi) Having all these aspects in consideration, the trial court held that there is no difficulty to declare right, title, interest and possession over the suit land in favour of the plaintiff and against the defendants. Further, it has been observed by the trial court in its judgment dated 17.12.2003 that the registered sale deed bearing No.1-3434 dated 04.06.1973 and the registered sale deed No.4381 dated 30.08.1973 are inoperative, void and hence, no title in respect of the suit land in favour of the defendants stood transferred. The trial court has prohibited issuance of certificate copies from those sale deeds.

[13] The finding, which has been challenged in the first appellate court, can be gathered from the passage as extracted from the judgment of the trial court which reads as under:

"On perusal of the Exbt.1 i.e. the Talab Baki it reveals that the said Talab Baki was created in the name of Satish Ch. Pal against the jote No. 1084. On perusal of the Exbt.2 it reveals that it is the Revenue receipts of the holding No. 1084 in the name of Satish Ch. Pal. Exbt.3 the Khatian prepared at the stage of Bujarat shows that the suit land has been recorded in the name of the defendants No.1 and 2 and in column 24 of the said khatian the original plaintiff namely Satish Ch. Pal has been shown as forceful possessor from the year 1965 and this khatian comprises the suit land. Further on perusal of the deposition of the PW and Exbt.4 it reveals that against the said khatian bearing No.1853 the original plaintiff filed an appeal petition u/s 9 of the TLR and LR Act before the Director of Land Records and Settlement. Further Exbt.4 shows that in the said case Director of land records and Settlement vide his order dt. 25-2-94 stated that the matter is now Sub-judiced in the Hon‟ble [sic] High Court. The settlement Officer was perfectly justify in ordering not to change the record of rights during the pendency of the suit in the Hon‟ble Gauhati High Court. So the appeal was dismissed. On perusal of the written statement of the defendants it reveals that in para-7 the defendants stated that the plaintiff relinquished and waived out all his right, title and interest and possession over the suit land by selling out the same to the defendant No.1 by executing a registered valid sale deed vide sale deed 1-4168 of 1973. So it reveals that the defendants admitted that the plaintiff was the owner of the suit land. It is settled law that admitted fact need not be proved. But the defendants side claimed that they purchased the suit land from the plaintiff vide registered sale deed No.1-4168 of 1973. So as per provision of Section 103 of the Evidence Act, the onus of proving that the plaintiff sold out the suit land to the defendants No.1 vide registered sale deed No.1-4168 is upon the defendants. But the defendants failed to discharge is onus as the defendant side neither adduced before the court said sale deed. Nor adduced any evidence to show that the plaintiff sold out the suit land to the defendant No. 1. Further on perusal of the written statement of the defendant it reveals that the defence story is not consistent one. Some time defendants claimed that they purchased the suit land from the plaintiff simultaneously they are stating that they purchased the suit land from one Prahallad Das. Further the defendants in his written statement claimed that the plaintiff sold out 0.01 acres of land from C.S. Plot No.2626 of Mouja-Melaghar to the answering defendant No. 1. So it reveals that the owner of the said C.S. Plot No. was the plaintiff. Further on perusal of the evidence on records it reveals that the C.S Pot No.2626/4397 came into existence out of the C.S. Plot No.2626. So it is the onus of the defendants to show that the suit land was sold out to the defendant or to their predecessor in interest namely Prahallad Das. But the defendant side failed to adduce any evidence to show that Prahallad had any right, title or interest over the suit land. In the instant case Prahallad Das was also made a party. But Prahallad Das did not appeared before the court to give any evidence to prove that he had any right, title and interest over the suit land. So it reveals that if Prahallad have no right, title and interest over the suit land in such a case Exbt. 5 and 6 do not carry any right, title and interest to the defendants. The defendants in support of their right, title and interest over the suit land adduced the khatian bearing No.1853 if favour of the defendants No.1 and 2 and Revenue receipts and khatian No.1453. But they failed to adduce any title deed in favour of Prahallad Das who is claimed by the defendants No. 1 and 2 to be their predecessor in interest. It is also established principle of law that the khatian is not the title deed. It is exclusive only for the purpose of Revenue. Further it reveals that the said khatian was challenged by the plaintiff and in appeal the Revenue and Settlement Authority stated that that as the matter is sub-judiced no change can be made in the Khatian. Considering all these aspects it transpires these khatians are of little value in proving that the defendants have any right, title and interest over the suit land. Further on perusal of the Ext.3 i.e. that khatian bearing No. 1853 it reveals that in column 24 it is mentioned that the plaintiff is in the forceful possession of the suit land since 1965. It is established principle of law that the possession has the 9th point in law except the title and in the instant it reveals that the defendants side admitted that the plaintiff had title over the suit land. Considering all these aspects it reveals that the plaintiffs proved that they have right, title, interest and possession over the suit land. Hence this issue No.iv is decided in favour of the plaintiff and against the defendants." [Emphasis added]

[14] Further, it has been observed, while affirming the finding of the trial court in respect of the status of those sale deeds [Exbts.5 & 6] by the appellate court that the plaintiffs had right, title and interest over the suit land and those sale deeds [Exbts.5 & 6] are void and inoperative. Thus, according to the first appellate court, the plaintiffs are entitled to declaration that the plaintiffs as the owners of the suit land vice the original plaintiff and the said two sale deeds are void and inoperative. The plaintiffs are also entitled to the declaration confirming the possession of the suit land, with consequential decree of perpetual injunction against the defendants.

[15] The first appellate court has categorically observed that the plaintiff has pleaded in the plaint that the defendant No.3 in connivance with defendants No.1 & 2 created some sham documents and got the suit land mutated in the name of the defendants No.1 & 2, but did not seek any declaration that those sale deeds are void and inoperative. Subsequently the plea was raised that those documents were created without knowledge of the original plaintiff. The defendants No.1 & 2 have stated in their written statement categorically that they had purchased the suit land from the defendants No.3 but they 'avoided to disclose' the definite particulars of the documents of transfer. If the particulars of deeds of sale were disclosed in the written statement, it would have been justified to claim that the subsequent amendment of the plaint after 12 years from filing of the suit was hopelessly barred by limitation inasmuch as a suit for declaration has to be brought within 3 years from the day when the right to sue accrues. Thus, the first appellate court has observed as follows:

"Here in the case at hand I am of the opinion that particulars of the deeds of sale mere not disclosed in the written statement, though those were executed in the year 1973, there is nothing on record to show that the plaintiff did not seek declaration of those deeds void and inoperative in spite of his knowledge of the particulars of the deeds. I also find nothing on record to show that the amendment of the plaint was sought three years after having the knowledge of the particulars of the sale deeds. Considering the facts and circumstances of the suit I am of the opinion that Ld. Civil Judge (Jr. Div) was right in deciding that the suit was not barred by limitation and therefore this ground advanced by Ld. counsel for the appellants does not hold good."

[16] Having referred to the order dated 04.07.1996 delivered in Civil Revision No.41 of 1991 by the Gauhati High Court [Agartala Bench] it had been argued that the possession of the suit property was unlawfully taken over from the plaintiff during pendency of the suit despite the order of temporary injunction of restraint. As a result of which, the Gauhati High Court by the said order directed the parties to hand over the possession and custody of the suit land to the Officer-in-Charge of Melaghar Police Station, who was, for that purpose, appointed as the receiver of the property till disposal of the suit. The first appellate court, in view of the said set of observations, made in the Civil Revision Petition, was persuaded to observe that if the revision petition was dismissed without appointing any receiver with direction to hand over the possession of the suit land by the rightful owner, the plaintiff ought to have sought recovery of the suit land, incorporating the fact of dispossession by way of amendment of plaint. Since the revision petition was not dismissed and the receiver was specifically directed to hand over the suit land from the rightful owner after the suit is determined, for not seeking any relief of recovery, the suit cannot be dismissed. The first appellate court has observed further that there was no suppression of facts by the plaintiff, inasmuch as the Khatian [Exbt.4] in which the original plaintiff is shown as the forceful occupier under column No.24 was not a finally published Khatian and hence on that basis, no presumption or no legal inference can be drawn. Finally, the first appellate court while passing the judgment of affirmance has observed [see Para-19 of the judgment, which has been reproduced before] that since the plaintiffs have right, title and interest over the suit land and as the contrary fact against the entries made in the revenue records could not be proved in respect of possession and the plaintiff was found in possession on appreciation of evidence, the judgment of the Civil Judge, Jr. Division, Sonamura in T.S.8 of 1989 cannot be faulted with.

[17] From Para-19, the finding of the first appellate court surfaces clearly that a person having no title cannot transfer the property in favour of others. Mere creation of documents of transfer is not sufficient to hold transfer of the title good, if the person who has executed the document had no prior title. Even the defendant No.3 [Prahllad Das] did not produce any document in support of his title in respect of the suit land. Even he did not come to give the oral evidence in the trial court as regards the execution of any deed in favour of the defendants No.1 & 2. As the defendant No.3 had no title to the suit land as the contrary fact has not been established, no title has passed to the defendants No.1 & 2 on execution of the sale deed [Exbts.4 & 5]. As corollary, it has been inferred by the impugned that those two deeds were void and inoperative.

[18] Mr. R. Mukherjee, learned counsel appearing for the appellants has submitted that the defendants have raised the objection relating to limitation in their written statement [see Para-2] and in Para-16, they have categorically stated that the plaintiff having no right, title, interest and possession over the suit land has filed the suit by falsely stating that the defendants have been trying to dispossess him from the suit land. The defendants have further stated that the plaintiff had suppressed the real fact of selling out of 0.01 acre from CS plot of land 2626 of Mouja-Melaghar to the defendant No.1 by the registered sale deed no.1-4168 of 1973. The defendant No.1 is thus, the owner in possession of the said land by way of purchase measuring 0.01 acre under CS Plot No.2626 of Mouja-Melaghar from the plaintiff per registered sale deed No.4638 of 1973 and the remaining 0.01 acres under CS plot No.2626/4393 was purchased from the defendant No.3 by a valid registered deed. Based on those deeds, their name has been recorded in the records of right. The said written statement was filed on 28.06.1989 whereas the amendment petition seeking the relief that the sale deeds No.1-3434 dated 04.06.1973 and No.4381 dated 03.08.1973 are voidable, inoperative and fake was filed on 26.03.2001. Hence, the relief sought against those sale deeds is grossly time barred even though the said amendment was allowed by the order dated 04.06.2001. In support of this contention, Mr. Mukherjee, learned counsel appearing for the appellant has contended that Article 59 of the schedule to the Limitation Act provides that for the suit seeking cancelation or setting aside an instrument or decree or for the rescission of the contract the limitation is 3 years from the date when the fact gives cause in favour of the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded. For purpose of further dilation of the fact, this court has perused the application for amendment. It appears that the plaintiff did not plead anything about his knowledge of those two deeds. But in the pleading as incorporated by way of amendment it has been categorically admitted that the defendants No.1 & 2 claimed title over the suit land on the basis that they had purchased the suit land from the defendant No.3 namely Prahllad Das, son of late Prassana Das. On the other hand, the plaintiff has stated that he did not sell the suit land to the defendant No.3 and the defendants No.1 & 2 made sham registered sale deeds in collusion with the defendant No.3. Therefore, the knowledge in respect of the registered sale deeds was gathered from Para-16 of the written statement filed by the defendants. Mr. Mukherjee, learned counsel has succinctly submitted that the suit in respect of cancelation or for declaration of those deeds as void is not maintainable. In support of his contention, he has referred the decision of the apex court in T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricity Board and Ors., reported in (2004) 3 SCC 392 , where it has been held by the apex court that the law as regard allowing amendment of the plaint is well settled in L.J. Leach and Co. Ltd. vs. Jardine Skinner and Co. : AIR 1957 SC 357 that the court would, as a rule, decline to allow amendment if a fresh suit on the amendment would have been barred by limitation, on the date of application. That aspect invariably be taken into consideration in exercise of discretion, as to whether the amendment should be ordered and it does not affect the power of the court to order it.

[19] Mr. Mukherjee, learned counsel has referred Raghabendra Sharan Singh vs. Ram Prasanna Singh (Dead) by L.Rs. [judgment dated 13.03.2019] where the apex court while examining the challenge against the registered gift deed after a period of approximately 22 years from the date of execution of registered gift deed had occasion to observe that in the case of Ram Singh vs. Gram Panchayat Mehal Kalan : (1986) 4 SCC 364], it has been held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation. Mr. Mukherjee, learned counsel has thus asserted that the suit can be said to be clearly barred by limitation in view of Article 59 of the Limitation Act and the consequence of the amended pleading was not considered by the first appellate court. There is no dispute that limitation is mixed question of law and facts which can only be decided after the parties led the evidence [see Sham Lal alias Kuldip v. Sanjeev Kumar : (2009) 12 SCC 454, N.V. Srinivas Murthy v. Mariyamma (dead) : AIR 2005 SC 2897 and Ram Prakash Gupta v. Rajiv Kumar Gupta: (2007) 10 SCC 59].

[20] Mr. Mukherjee, learned counsel has thereafter quite succinctly submitted that Talab Baki cannot be treated as proof of title. The title has to be proved by the deed of transfer or by the order of settlement issued by the Government. In this regard, reliance has been placed on Sankalchan Jaychandbhai Patel and Ors. vs. Vithalbhai Jaychandbhai Patel and Ors., reported in (1996) 6 SCC 435 where the apex court has laid down the law unambiguously as under:

"7. It is settled law that mutation entries are only to enable the state to collect revenues from the persons in possession and enjoyment of the property and that the right, title and interest as to the property should be established de hors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. Therefore, the view taken by the learned single Judge, with due respect, is not correct in law. The civil suit is clearly maintainable. The High Court rightly granted injunction restraining the appellants from alienating the land. Even otherwise, Section 52 of the Transfer of Property Act lis pendens always stands in the way of purchaser of the land subject to the result in revision."

[21] Reliance has also been placed on Gurunath Manohar Pavaskar and Ors. vs. Nagesh Siddappa Navalgund and Ors., reported in (2007)13 SCC 565, where the apex court had occasion to observe as follows:

"10. It is one thing to say that there does not exist any ambiguity as regards description of the suit land in the plaint with reference to the boundaries as mentioned therein, but it is another thing to say that the land in suit belongs to the respondents. It was for the plaintiffs to prove that the land in suit formed part of CTS Nos.4823/A-17 and 4823/A-18. It was not for the defendants to do so. It was, therefore, not necessary for them to file an application for appointment of a Commissioner nor was it necessary for them to adduce any independent evidence to establish that the report of the Advocate- Commissioner was not correct. The suit could not have been, therefore, decreed inter alia on the basis of Ex. P-35 alone. In a case of this nature, even Section 83 of the Indian Evidence Act would not have any application.

Furthermore, the High Court committed an error in also throwing the burden of proof upon the defendants - appellants without taking into consideration the provisions of Section 101 of the Indian Evidence Act. In Narain Prasad Aggarwal (D) by LRs. v. State of M.P.: (2007) 11 SCC 736 , this Court opined:

"19. Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable.‟ "

[22] Thus, Mr. Mukherjee, learned counsel has in order to place his submission on the substantial question No.1 stated that the suit was barred by limitation and the revenue records Talab Baki [Exbt.1] recorded in the year 1963 cannot be treated as the proof of title.

[23] Mr. A.K. Bhowmik, learned senior counsel appearing for the respondents has at the outset submitted that the finding of fact is substantively concurrent. The defendants have utterly failed to show that the plaintiff had sold out the suit land to the defendant No.1 inasmuch as the registered sale deed No.4168 has not been brought into the evidence. Even no further evidence was advanced to show that the original plaintiff sold out the suit land to the defendant No.1. There is no evidence that the original plaintiff had sold the suit land to the defendant No.3. Even the defendant No.3 did appear to testify by that fact of sale. The defendants have thus utterly failed to discourage that onus. Mr. Bhowmik, learned senior counsel has categorically stated that those deeds were created by the defendants illegally as the defendant No.3 had no prior title. The order allowing the amendment was never challenged by the defendants. That apart, on 09.10.2001 when the consolidated plaint was filed, the defendants did not file any additional written statement. Therefore, the pleadings those are introduced by the amendment are to be deemed admitted under non-traverse route.

[24] Mr. Bhowmik, learned senior counsel appearing for the respondents has further stated that even the title of the suit land has been admitted by the defendants inasmuch they have contended collectively that the defendant No.1 had purchased the suit land from the original plaintiff. Thus, the declaration of the title is not merely based on the revenue records as claimed by Mr. Mukherjee, learned counsel appearing for the appellant. That apart, the fact of possession is concurrent finding of the courts below and there is no challenge as regards the possession in this appeal. Even in the mutated Khatian as relied by the appellants [the defendants in the suit] it would be apparent that the plaintiff was in possession over the suit land since 1965. The defendants did not claim in their written statement that they had challenged that entry in the superior forum. There is no evidence at all in the evidence to rebut the correctness of the said possession. Mr. Bhowmik, learned senior counsel has therefore, contended that there is no infirmity in the impugned judgment of affirmance of the trial court judgment. That apart, Mr. Bhowmik, learned senior counsel has further submitted that for non-disclosure of the requisite details of the questioned title deeds [Exbts.5 & 6], the amendment could not be carried out in the plaint earlier. But when the amendment was allowed by the order, the defendants [the appellants herein] did not challenge that order. As a result, the defendants [the appellants herein] cannot challenge that finding. The first appellate court had rightly turned down the challenge in this regard by the impugned judgment.

[25] From the submission made by Mr. Mukherjee, learned counsel appearing for the appellants and Mr. Bhowmik, learned senior counsel appearing for the respondents, this court is confronted with the question whether in the written statement the requisite disclosure was made by the appellants or not. For purpose of reference, the relevant part of Para-16 of the written statement as referred by Mr. Mukherjee, learned counsel is extracted hereunder:

"The plaintiff has suppressed the real fact of selling out of 0.01 acre of CS Plot No.2626 of Mouja-Melaghar to the answering defendant No.1 per registered sale deed No.I-4168 of 1973. The defendant No.1 is the owner in possession of 0.2 acres of land by way of purchase 0.1 acre under CS Plot No.2626 of Mouja-Melaghar from the plaintiff per registered sale deed No.4368 of 1973 and the rest 0.1 acre under CS Plot No.2626/4397 from the defendant No.3 by a valid registered sale deed and the same has been duly recorded in the name of the defendant No.1 and the Touji has also been posted in his name. the defendant No.1 has also paid the rent for the same against rent receipts. The defendant No.2 is also the owner in possession of 0.1 acre of land under CS Plot Nos.2626 and 2626/4397 of Mouja-Melaghar by way of purchase from the defendant No.3 against valid registered sale deed."

[26] Whether this amount of disclosure was sufficient for the plaintiff to discover the further details or to ask further detail from the defendants by way of interrogatories cannot be a matter of debate. It can be safely stated that the plaintiff did not follow either of the method of further discovery of the registered instruments from the office of the District Sub-Registrar or for getting details by placing interrogatories. For all purposes, this disclosure has to be treated as adequate disclosure for challenging those questioned deeds of sale [Exbts.5 & 6]. Moreover, in the petition for amendment under Order VI Rule 17 read with Section 151 of the CPC, filed on 26.03.2001 the plaintiff did not disclose how and when the plaintiff gathered the detailed information about the title deeds which were referred in the proposed pleading. The plaintiff neither disclosed when he gathered the knowledge about the execution of those questioned deeds inasmuch as Article 59 [in the schedule] of Limitation Act has unambiguously provided that limitation would start to run from the date of knowledge of execution of such deed.

[27] This court does not have any hesitation to hold that the cause as incorporated by way of amendment was totally barred under Article 59 of the Limitation Act. But for this, the Court is not prevented from deciding the other cause as reflected in the original plaint. There cannot be any amount of confusion that the defendants failed to produce the title deed by which the defendant No.1 claimed to have purchased a piece of land from CS Plot No.2626 from the original plaintiff and the title deed by which the defendant No.3 has claimed to have purchased any part of land pertaining to CS Plot No.2626. It has not been disputed by the defendants that CS Plot No.2626/4397 was curved out from the CS Plot No.2626. Therefore, the onus was heavy on the defendants to prove that the original plaintiff transferred any piece of land from CS Plot No.2626 either to the defendant No.1 or to the defendant No.3. But they have miserably failed to discharge that onus inasmuch as the title deeds of transaction were not adduced in the evidence. The oral evidence in this regard is not permissible under law. Even the defendant No.3 did not testify to state that he had purchased any piece of land from CS Plot No.2626 from the original plaintiff. Thus, this Court does not have any hesitation to hold that the plaintiffs have proved their title over the suit land and thus, the declaration made by the courts below in this regard cannot be faulted with. It may be further added that the revenue document [Exbt.1] and the rent receipt [Exbt.2] if read with the categorical admission made in the written statement in respect of competence of the original plaintiff in respect of the suit land it would form a clear admission under Section 17 of the Evidence Act. Thus, this court does not find any impediment to affirm the finding on the title of the original plaintiff.

[28] So far the possession over the suit land is concerned, there is not challenge against the concurrent finding that the original plaintiff was continuously in possession over the suit land and he was shown as the forceful occupier in the mutated Khatian, which, however, according to the plaintiffs was a collusive document. That entry had been challenged and it went up to the appeal which was disposed of by the order dated 25.02.1994 observing that since the issue of title was sub-judiced at that time, no order would be passed in the appeal under Section 93 of the TLR & LR Act. But the finding and declaration in respect of the questioned title deeds [Exbts.5 & 6] as void, inoperative and illegal etc. is liable to be interfered with for the reason that the relief was barred under Article 59 of the Limitation Act. Those deeds shall as consequence remain in limbo.

[29] As consequence of those observations, it is affirmed that (i) the plaintiffs are entitled to get the decree of declaration of right, title and interest in respect of the suit land as described above (ii) the decree of confirmation of possession on the suit land and (iii) the decree of perpetual injunction restraining the defendants and their men or agents from interfering with the possession of the suit land. Further, it is observed that the revenue appeal under Section 93 of the TLR & LR Act which was disposed by the order dated 25.02.1994 be reopened if approached by the plaintiffs to determine the correctness of the entry in the mutated Khatian which has been created on the basis of the questioned title deeds [Exbts.5 & 6] by the competent authority on production of this judgment and order and that proceeding be taken to the logical end following the due process of law. However, the declaration on the sale deeds No.1-3434 dated 04.06.1973 and 1-4381 dated 30.08.1973 are void, inoperative and stand set aside. Further, the receiver is directed to hand over the possession of the suit land to the plaintiffs forthwith.

In view of what has been observed and directed, the appeal stands partly allowed.

Draw the decree accordingly.

Send down the LCRs thereafter.