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Judgment
This is an appeal under Section 100 of the CPC from the judgment dated 03.08.2015 delivered in Title Appeal No.29 of 2014 by the Additional District Judge, West Tripura, Agartala, Court No.3 on affirmance of the judgment dated 11.06.2014 delivered in Title Suit (P) No.28 of 2008 by the Civil Judge, Senior Division, West Tripura, Agartala, Court No.2.
Pursuant to the said judgment dated 11.06.2014, the Civil Judge, Senior Division hereinafter referred to as the trial court decreed the suit declaring that the plaintiff, the defendants No.1 and 2 and Narayan Chandra Choudhury represented by the defendants No.3 to 6 are entitled to one third share over the suit land, in exclusion of the land covered by the sale deed No.1-6394 dated 15.11.2011. While admitting this appeal against the judgment of affirmance, the following substantial question of law was formulated by the order dated 18.11.2015:
"Whether the judgment and decree dated 11.06.2014 passed by learned Civil Judge (Senior Division), Court No.2, Agartala, West Tripura in T.S. (P) No.28 of 2008, which has been affirmed by learned Additional District Judge, Court No.3, West Tripura, Agartala by judgment and decree dated 03.08.2015 passed in T.A. NO.29 of 2014 suffer from perversity ?"
The brief fact that would be relevant for laying the perspective of the challenge, may be introduced at the outset. The plaintiff-appellant instituted the suit for partition of the joint property measuring 0.80 acre, as he is entitled to one third share of the said landed property. The defendants No. 1 and 2, respectively the respondents No.1 and 2 in this appeal, contested the suit by filing the written statement. However, the defendants No.3 to 6, respectively the respondents No.3 to 6 in this appeal, did not turn up to contest the suit and as consequence thereof the suit was heard ex-parte against them.
The trial court has excluded an area of land measuring 0.24 acre which is covered by the sale deed bearing No.1-6394 dated 15.11.2011 (Exbt.A) and the rectification dated 1-5290 dated 17.07.2012 (Exbt.B). Thereafter, the trial court has decreed that the plaintiff and the defendants have got one third share on the land as described in the schedule but simultaneously declared that the area of the un-partitioned land be 0.56 acre, in exclusion of the said land measuring 0.24 acre. The trial court for such exclusion has observed that the said land measuring
0.24 acre was pledged to the Tripura Industrial Development Corporation Limited, TIDC Ltd. in short. The plaintiff with consent of the defendants No.1 and 2 had set up one ice cream factory taking loan from TIDC Ltd. in the year 1991 by the agreement dated 06.03.1991 (part of Exbt. A series) mortgaging the said land measuring 0.24 acre out of the suit land.
As the plaintiff defaulted in making payment of the loan, the TIDC had taken over the land under the State Financial Corporation Act, 1951 and put the said land on auction for recovery of the outstanding loan. The defendant No.2 purchased the said land being the highest bidder by virtue of the sale deed No.1-6394 dated 16.11.2011 and the deed of rectification No.1-5290 dated 17.07.2012, as executed by the TIDC Ltd. As such that part of the land measuring 0.24 acre has become the exclusive property of the respondent No.2 having been acquired through the auction. The other co-sharer cannot have any right over the entire suit land by way of inheritance. It is admitted that the defendants No.3,4 5 and 6 did not contest the suit. However the respondents No.1 and 2 by filing the written statement have advanced their claim very categorically in Paras- 12, 13 and 14 and alleged that knowing fully well the plaintiff has suppressed the fact of acquisition of title by the defendant No.2 in order to play mischief on the court. Issues framed for adjudication of the suit are as follows :
"1) Whether the plaintiff is entitled to get 1/3rd share in the suit property?
2) Whether the plaintiff is entitled to get 50% share in the one storied buildings and mud wall huts standing in the suit land ?"
After recording the evidence, both documentary and oral, the finding that from the suit land measuring .80 acre, as described in the schedule appended to the plaint, a piece of land measuring 0.24 acre be extracted in terms of the sale deed No. 16394 dated 15.11.2011, had been challenged by the plaintiff in the appeal filed under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala being Title Appeal No.29 of 2014. The said appeal was, in due course, dismissed by the impugned judgment dated 03.08.2015 observing that by virtue of the said sale deed dated 14.11.2011 read with the rectification deed dated 17.07.2012 the respondent No.2 has become the exclusive owner of the land measuring 0.24 acre from the ancestral land as described in the schedule. Further it has been observed by the trial court as under :
"The only plea of the appellant is that the respondent No.2 has purchased such land from the income of their joint family but the appellant did not make any such averment either in his plaint or in his deposition that the respondent has purchased such land from the joint family fund and the appellant also failed to produce any document showing that the respondent purchased such land from the joint family fund. From the evidence on record it shows that the respondents are living separately. Moreover, the suit property is not a joint family property. Therefore, the plea of the appellant is not supported by any evidence. Therefore, considering the entire evidence and materials on record it appears that the learned court below had rightly decided all the issues and as such, the finds and decision of the learned court below deserves no interference."
Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant has submitted that the finding of the first appellate court that the land measuring 0.24 acre is the self-acquired property of the respondent No.2 is perverse, inasmuch as the first appellate court did not appreciate the evidence of DW-1 and the finally published Khatian. By the finally published Khatian No.1581/1, the suit land has been recorded in the name of Chitta Ranjan Chowdhury, Narayan Chowdhury and Tapan Chowdhury and there is no reason to discard the said entry. The first appellate court ought to have drawn the presumption of correctness in respect of the suit land for the said entry. He has further submitted that the evidence of DW-1 has been wrongly appreciated by the appellate court. For purpose of reference, the relevant part of the evidence of DW- 1, Sri Aurobinda Chowhury is extracted hereunder :
"9. That the said land measuring 0.24 satak being the land under the absolute ownership of the defendant No.2 my younger sister cannot be a subject matter of the present partition suit but the plaintiff have fraudulently suppressed the said fact to derive undue benefit of the said suppression."
In the cross examination, DW-1 has further stated as under :
"It is the fact that the wife of the plaintiff is running an Ice cream factory in the name of City Ice Cream‟ on the suit land. In 1998 my sister Sushmita paid the auction price to TIDC Ltd. for purchase of 12 gandas of land. It is fact that in the year 1998 my sister was a college going student and at that time we were in a joint family with the plaintiff. It is fact that the 12 gandas land was purchased in auction sale out of the joint family fund."
Mr. S.M. Chakraborty, learned senior counsel appearing for the plaintiff respondents No.1 and 2 has submitted that there is no perversity as projected and there is no substantial question of law. The appeal is wholly speculative. What DW-1 has testified in the cross-examination supports no pleading. There is no pleading that the auction- value was paid down from the joint family fund.
Having appreciated the challenge, this court is constrained to observe that the plaintiff appellant has utterly failed to prove that the persons who are recorded as the title holder in the Khatian N0.1 1581/1 have been jointly owning the property as described in the schedule or that for the acquisition in the name of the respondent No.2, they provided the fund to the respondent No.2 from the joint family fund. The first appellate court has correctly observed that in absence of pleading in that respect and for obvious reason as the plaintiff suppressed the incident of auction sale of the land measuring 0.24 acre, the evidence of DW-2 is of no value.
Hence the appeal is devoid of merit and stands dismissed. Draw the decree accordingly.
Send down the records thereafter.