Nibaran Chandra Roy vs Agartala Municipal Council And Ors

Heard Mr. B. Saha and Mr. S. Bhattacharjee, learned counsels appearing for the plaintiff-appellant, Mr. K. K. Pal, learned counsel appearing for the respondent Nos. 1 & 2 and Mr. T.K.Deb, learned counsel appearing for the respondent No.3.

Sans unnecessary details, the facts which are relevant to decide upon the case may be narrated here-in-below:

The plaintiff-appellant has instituted a suit for declaration of right, title, interest and recovery of possession of the 'B' Schedule land which is part of 'B' Schedule land mentioned in the plaint. It is stated in the plaint that the plaintiff-appellant is the owner of land measuring 6(six) gandas. It is his further case that at one point of time 3 (three) karas of land was occupied by the respondent Nos. 1 and 2 i.e. the Agartala Municipal Council. However, on repeated persuasion, the Agartala Municipal Council had handed over some portion of land and though it was not specifically mentioned in the plaint about the quantum of land handed over to the plaintiff, at the stage of second appeal, Mr. Saha, learned counsel has invited my attention that a portion of the land measuring 199 Sq.ft. was handed over, but, the remaining land measuring 449 Sq.ft. has still been lying under the occupation of the Agartala Municipal Council which is the Schedule 'B' land. Both the Courts below have declared title of the plaintiff-appellant over the 'A' Schedule land but rejected the prayer of the plaintiff-appellant to decree the suit in regard to recovery of possession of the land described in Schedule 'B' which is the suit land of the suit. Both the Courts below have assigned the reason that the boundary of 'B' Schedule land does not tally with the boundary of 'A' Schedule land and it is not possible to find out what actually the 'B' Schedule land is.

While admitting the appeal, this Court has framed the following substantial question of law:

"Whether the finding of the trial Court that the plaintiff failed to prove his dispossession from the suit land for which the plaintiff sought for recovery of possession was justified while the trial Court arrived at a finding that the plaintiff has proved his title over the suit land in view of the evidence and material on record which has been affirmed by the appellate Court?"

Based on the above noted substantial question of law, Mr. B. Saha, learned counsel appearing for the plaintiff-appellant has submitted that as the plaintiff-appellant has proved his title, both the learned Courts below ought to have decreed the suit in favour of the plaintiff-appellant for recovery of possession of the 'B' Schedule land.

On the other hand, Mr. K.K. Pal and Mr. T.K.Deb, learned counsels appearing for the respondent-NBCC and Agartala Municipal Council have submitted that they have handed over the entire plot of land described in Schedule 'A' that includes Schedule 'B' of the plaint over which the plaintiff has claimed his ownership. The Municipality has constructed sewerage drain with the help of the respondent No.3, the NBCC Ltd. on the plot of land which is owned by the Agartala Municipal Council outside the boundary of 'A' and 'B' Schedule land.

I have perused the judgments of the Courts below and considered the submissions advanced by the learned counsels appearing for the respective parties. Learned trial Court has held that the story of dispossession of the plaintiff from the 'B' Schedule land is vague, as such, the learned Civil Judge did not consider necessary to pass a decree of recovery of possession of 'B' Schedule land in favour of the plaintiff, though, the learned trial Court declared the title of the plaintiff over the entire 'A' Schedule land. Learned First Appellate Court has held that the boundary of the 'B' Schedule land does not tally with the boundary of 'A' Schedule land. The learned First Appellate Court in tune with the learned trial Court has held that the plaintiff-appellant has miserably failed to establish that how he was, in fact, dispossessed from any portion of the 'A' Schedule land. More so, it is evident that the plaintiff-appellant had purchased the 'A' Schedule land on 28.10.1968 and he was allegedly dispossessed by the defendant-respondents on 26.11.2011. What has struck to the mind of this Court is that Khatian No.1462 which was marked as Exbt.2 was prepared in the name of the plaintiff-appellant during the time of revisional survey and settlement, the process, which was completed is much ahead of dispossession i.e. on 26.11.2011 wherefrom it is revealed that the plaintiff-appellant has been in possession of 5 and ½ gandas of and according to Exbt.2 (Khatian).

After perusal of the substantial question of law as formulated by this Court, it gives rise to another substantial question as to whether, since title has been declared and confirmed by both the Courts below, in that view of the matter, whether decree of recovery of possession can be declared in favour of the plaintiff-appellant.

It is true that both the Courts below have declared the ownership of the plaintiff-appellant over the land of Schedule 'A' which comprises Schedule 'B' land but the question remains whether it is possible to pass a decree for recovery of possession of 'B' Schedule land which is a part of 'A' Schedule land, according to plaintiff. The First Appellate Court has held that the boundary of Schedule 'B' land has not been tallied with the boundary of Schedule 'A' land, as such, the plaintiff-appellant is not entitled to get any decree for recovery of possession in regard to the land of Schedule 'B'.

Mr. B. Saha, learned counsel appearing for the plaintiff-appellant has tried to persuade this Court that the plot Nos. (Dag and Khatian) are correctly mentioned in the schedules of the plaint and on the basis of which a decree can be passed. Learned counsel has referred to a decision reported in (2014) 2 TLR 1039, Sadhan Chandra Bal & Ors. Vrs. Swapan Datta & Ors., wherein, this Court held that the suit land can be described by way of boundaries or numbers in a record of settlement or survey. To deal with this question, it would be worthy to take note of Order VII, Rule 3 of the Code of Civil Procedure which reads as under and relevant to the question raised:-

"3. Where the subject-matter of the suit is immovable property.--Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."

A bare reading of this provision crystalizes that a plaint shall contain a description of the property which is enough to identify the suit land. It can be identified either by mentioning the boundaries or by the plot nos. mentioned in the Record-of-Right (khatian). In my considered view, for this purpose, a plaintiff can rely either upon the boundaries of the suit land or he is to go by the numbers mentioned in the settlement record, but, when he relies upon both boundaries and numbers in the record of settlement, then, one must conform with the other, and it must not contradict to each other. In the case in hand, I find that the plaintiff-appellant has relied upon both the numbers mentioned in the settlement record and the boundaries to identify the suit land. At this juncture, it would be relevant to reproduce the schedules of the lands of the plaintiff-appellant, herein below, for convenience:

SCHEDULE- A LAND

WITHIN District- West Tripura, P.S.-West Agartala, Sub-Division-Sadar, under Mouja-Agartala Sheet No.9, Tehsil-Agartala (West), Revenue Circle-Sadar, Sub-Registry-Sadar, pertaining to Khatian No.1462, Hall Dag Nos.1664 & 1673 (Sabek-7396/24334/P & 7396/P), Bastu (Null) Class of land, measuring 0.120 acres (6 Gandas), being butted and bounded by-

North-Dipti Chowdhury & Ors.;

South-Ratan Acharjee;

East-Koushik Chakraborty; and

West-Gali Path

WITHIN this boundary the Bastu (Null) Class of land measuring 0.120 acre (6 Gandas) only.

SCHEDULE- B LAND

WITHIN District- West Tripura, P.S.-West Agartala, Sub-Division-Sadar, under Mouja-Agartala Sheet No.9, Tehsil-Agartala (West), Revenue Circle-Sadar, Sub-Registry-Sadar, pertaining to Khatian No.1462, Hall Dag Nos.1664 & 1673 (Sabek-7396/24334/P & 7396/P), Bastu (Null) Class of land, which is within the western side of the Schedule-A land measuring (7 feet X 63.10 feet) 449 Sq.Feet, being butted and bounded by-

North-Gali path;

South-Gali path;

East-the plaintiff; and

West-Gali Path

WITHIN this boundary the Bastu (Null) Class of land measuring (7 feet X 63.10 feet) 449 Sq.Feet, only.

On meticulous scrutiny of the land of Schedule 'A' and 'B', it is evident that the boundaries of Schedule 'B' land does not conform with the boundaries of Schedule 'A' land. It is the case of the plaintiff-appellant that Schedule 'B' land is a part of Schedule 'A' land. If it is so, then how the northern and southern part of Schedule 'B' land would be 'gali path' (path way). If we believe the boundaries of Schedule 'A' land, then the northern boundary of Schedule 'B' land would be Dipti Chowdhury and others and southern boundary of Schedule 'B' land would be of Ratan Acharjee. Moreover, as I said earlier the measurement of the suit land does not conform with the quantum of land mentioned in the Record-of- Right. In the Record-of-Right, the total land of Schedule 'A' is measured about 5 and ½ gandas, wherein, the plaintiff has instituted the suit for 6 gandas of land. In furtherance thereof, even if the suit is decreed in view of the fact that the title of the property has been declared, then, also the decree would not be executable due to incorrect description of the suit land. The particulars mentioned in order to describe the suit land are found to be deficient due to which the decree, even if, is declared for recovery of possession it would be useless and the decree would be non-executable. To get a decree for recovery of possession the plaintiff is to give proper and accurate description of property so that the same is easily identifiable and it does not conflict to the numbers mentioned in Record-of-Right which would enable the Court to pass an effective executable decree. So, from the analysis as enumerated above, the declaration of title over a particular plot of land automatically would not entail the plaintiff to get a decree for recovery of possession, unless the suit land is specific to the facts in issue and, of course, without any ambiguity.

The second substantial question of law as formulated by this Court in course of hearing is answered accordingly.

Having regard to the law relevant to the facts in issue as encompassed above, I find no merit in the present second appeal, and accordingly, stands dismissed. However, parties are to bear their respective costs.

Send back the L.C. records along with a copy of this judgment.