Surendra Tanti And Ors. vs Harendra Kr. Malakar

This is a second appeal preferred by the defendant of the original title suit. The original title suit was filed by the plaintiff- respondent praying for granting a decree of perpetual injuction restraining the defendant not to interfere with the peaceful possession of the plaintiff over the suit land. After exchange of pleadings, the learned trial court framed issues. Evidences were recorded by the respective parties to the lis on the basis of the issues. The learned trial Judge after hearing the learned counsels for the parties dismissed the suit of the plaintiff.

Being aggrieved, the plaintiff had preferred an appeal before the Court of learned District Judge. The learned District Judge on perusal of the evidence and materials on record and after hearing the learned counsels appearing for the parties, set aside the judgment and decree passed by the learned trial Judge and allowed the plaintiff's suit by way of granting a decree restraining the defendant from interfering with the peaceful possession of the plaintiff over the suit land vide judgment dated 30.05.2017 and decree dated 06.06.2017 in connection with title suit No.27/2016.

Feeling aggrieved and dissatisfied with the said judgment and decree, passed by the learned District Judge, North Tripura, Dharmanagar, the defendant has preferred the instant appeal before this Court challenging the legality and propriety of the said judgment and decree.

Heard Mr. A. K. Pal, learned counsel appearing for the defendant-appellants. Also heard Mr. S. Bhattacharjee, learned counsel appearing for the plaintiff-respondent.

Mr. Pal, learned counsel appearing for the defendant- appellants submits that the defendants have been in possession of the suit property for the last 50 years and as such, they have acquired right, title and interest over the suit property by way of adverse possession. Next, Mr. Pal, learned counsel submits that during pendency of the appeal, the allotment order dated 27.11.1978 issued by the Collector in favour of the plaintiff was cancelled by the Collector himself vide order dated 04.01.2017. Mr. Pal, learned counsel further submits that there was no allotment order at all in favour of the plaintiff. At this juncture, question naturally arises if there was no allotment order at all in favour of the plaintiff, then, why the question of cancellation of the said order was necessitated by the Collector. As such, from the said cancellation order it is revealed that there was an allotment order in granting allotment of the suit property in favour of the plaintiff. Accordingly, I repel the submission of learned counsel for the appellants in this respect.

Mr. Pal, learned counsel for the appellant further submits that after obtaining the said order of cancellation, the defendant-appellants filed an application for adducing additional evidence before this High Court during pendency of the appeal. However, Mr. Pal, learned counsel at the same time, has brought it to the notice of the court that a Co-ordinate Bench of this Court had rejected the prayer to bring the aforesaid order of cancellation into evidence by way of adducing additional evidence. Mr. Pal, learned counsel during his argument before this Court again urges this Court to accept this document and on the basis of this document remit the matter to the court of learned Civil Judge, Sr. Division, Dharmanagar. Learned counsel further submits that a copy of the order of cancellation has been annexed with the memo of appeal.

On the other hand, Mr. S. Bhattacharjee, learned counsel appearing for the plaintiff-respondent submits that the document relating to cancellation of the allotment order cannot be entertained at all. Moreover, he submits that similar application was also filed before the learned first appellate court during the pendency of appeal, but, that was also rejected and that order was not challenged by the defendant before any superior court. Hence, the order of rejection of the prayer for bringing the document into evidence has attained its finality. Mr. Bhattacharjee, learned counsel appearing for the plaintiff-respondent further draws my attention to an observation made by the learned first appellate court in the judgment that the plea of the defendants that they have been in forceful possession of the suit land for the last 50 years, has not been proved as the defendants could not produce any such document showing their name in the record of right as forceful possessor of the suit land, although, in the meantime, so many survey operations by the settlement department were undertaken. Mr. Bhattacharjee, learned counsel for the plaintiff-respondent submits that the plaintiff could not produce the original allotment order on the grounds stated in the plaint itself that those documents could not be traced out. But the plaintiff applied for obtaining certified copy of that allotment order through RTI application. The authority concerned issued the certified copy of the allotment order that was issued in favour of the plaintiff-respondent. Based on that ground, additional issue was framed and while deciding the issue, the plaintiff adduced evidence by way of calling the concerned Tehsilder who appeared in the witness box along with the original register of allotment. The learned court after comparing the allotment register had admitted the certified copy of the allotment order in evidence. Mr. Bhattacharjee, learned counsel further contends that the first appellate court has clearly observed that the defendants have failed to substantiate that they have acquired right, title and interest over the suit property by way of adverse possession.

I have considered the aforesaid submissions advanced by the learned counsels appearing for the parties.

At the time of admission of this appeal, the following substantial question of law was formulated:

"In terms of the Exbt.6, the allotment order under No.79/X- L/78 dated 27.11.1978 can there be any presumption discarding the evidence led by the defendants that they are on physical possession over the suit land for issuing the perpetual injuction restraining the defendants or their men or agent by a civil court?

Coming straightway to the substantial question of law, in my opinion, Exbt.6, the copy of the allotment order may be taken into consideration in deciding the title in favour of the plaintiff-respondent. This Exbt.6 cannot be doubted in any manner whatsoever for the reason that the said document i.e. the allotment order was duly taken into evidence by observing the necessary formalities under the Evidence Act. Tehshilder himself appeared along with the allotment register and the learned trial court after comparing the certified copy and other entries mentioned in the allotment register has admitted this document in evidence. So, there is no room left for this Court to suspect this document. As such, based on this document, it is confirmed that the plaintiff- respondent has acquired right, title and interest over the suit land by dint of the allotment order which was granted in favour of him in the year 1978 as aforestated. Even for a moment, I believe that the said allotment order issued in the year 1978 has been cancelled in the year 2017, that by any sort of imagination cannot be taken into consideration as it is settled law that allotment granted in favour of any person cannot be cancelled after the lapse of long period of time. Moreover, the defendant-appellants had made an attempt to admit this document into evidence by way of submitting an application for adducing additional evidence before the High Court. Said application under Order XLI, Rule 27 of CPC for adducing additional evidence was rejected by the High Court. Hence, according to this Court the prayer of the appellants to consider this document for adducing additional evidence should be rejected at its very threshold for the reason that the appellants are prohibited to raise this plea again following the doctrine of estoppels. Accordingly, this submission is rejected.

Having perused the evidence on record, the learned first appellate court returned a clear finding that the defendants have failed to establish the factum of adverse possession. The learned trial court also has observed in his finding that the defendants have failed to show any document to establish that their names were ever recorded as adverse or forceful possessor in respect to Plot No.1334 and Plot No.1289 of Khatian No.745. It was further observed that the defendants have also failed to establish from which date and time their possession became adverse, which is one of the essential requirements of Article 65 of the Limitation Act. As I have already held that Exbt.6 aptly proves the right, title and interest of the plaintiff over the suit land, the substantial question of law as drawn by this Court, has accordingly been answered. Further, the suit of the plaintiff is to grant a decree of perpetual injunction over the suit land restraining the defendants and his men and agents from disturbing his peaceful possession which was decreed by the first appellate court after consideration of the oral testimony qua the materials brought on record as evidence.

Having discussed the facts and the law here-in-above, I do not find any infirmity in the judgment of the first appellate court and as such, the same does not call for interference. Accordingly, the appeal stands dismissed being devoid of merit.

The judgment and decree passed by the learned first appellate court has been affirmed and upheld.

Send down the L.C. records.