RSA No. 22 of 2012. Case: Harekrishna Roy Chowdhury Vs Debdas Roy Chowdhury and Ors.. Tripura High Court
|RSA No. 22 of 2012
|For Appellant: D. Deb, Advocate and For Respondents: A.K. Bhowmik, Sr. Advocate and A. Banik, Advocate
|S. Talapatra, J.
|Code of Civil Procedure, 1908 (CPC) - Order XVIII Rule 4; Order XXVI Rules 10, 10(2), 18A, 9; Sections 75, 96
|January 13, 2017
|Tripura High Court
S. Talapatra, J., (At Agartala)
This is an appeal against the judgment of affirmance dated 10.02.2012 delivered in T.A. No. 45 of 2011 by the Additional District Judge, Court No. 5, West Tripura, Agartala, by the defendant No. 1.
Having proposed, this court formulated two sets of substantial questions of law, one on 06.06.2012 and another on 12.09.2016.
By the order dated 06.06.2012 the following substantial question of law was initially formulated for hearing the appeal:
Whether the courts below committed error by failing to decide the question of limitation, after framing issue on the said point?
Subsequently, when the hearing commenced, at the insistence of the appellant, by the order dated 12.09.2016, the following substantial question of law was formulated in addition to the earlier substantial of law:
Whether the impugned judgment has been passed without considering the evidence of compromise decree of partition [Exhibit-2] and the hand sketch map of solenama [Exhibit-3] or the judgment has been passed solely on the report of the Survey Commission?
For having the prospective of the challenge against the concurrent finding of fact, the relevant fact is required to be introduced briefly at the outset. The plaintiff and the defendants in the suit being T.S. No. 65 of 2005 are full-blood brothers and they inherited the paternal property comprised in Agartala township No. 15 which has been described in the Schedule-1 of the plaint.
There is no dispute that the said property was mutually partitioned by the registered partition deed No. 1-4851 dated 06.04.1970 and they had taken possession of the land identified for each of the brothers, the plaintiff and the defendants. The said land was mutated in the year 1975. Since there was some disputes between the plaintiff and the defendants in the year 1986, a suit being T.S. 68 of 1986 was instituted but the said suit was finally come to an end, based on a compromise struck between those three brothers. A compromised decree with a map delineating their share more categorically was passed in accordance with law. Even in this regard, there is no dispute between the plaintiff and the defendants. The case of the plaintiff is that the defendant No. 1, the appellant herein, constructed a residential house on his plot in the year 1990 encroaching upon two inch of land of the common pathway and the said building was subsequently converted into a shopping complex in the name and style of Rajdhani Market. Thereafter the defendant No. 1 constructed first floor and the second floor on the existing building. The defendant No. 1, while constructing his building, did not leave any space towards the western side. As a result, he could not carry out plastering work in the western side of his building. It is also stated that there was a vacant space between the building of the plaintiff and the defendant No. 1 and the said vacant place was being used by the plaintiff and his tenant in the ground floor of the two storied building for their ingress and egress.
The defendant No. 1 never raised any dispute over the said land of the plaintiff as it is always under the possession of the plaintiff. In the year 2002, suddenly the defendant No. 1 started claiming the said vacant land, owned and possessed by the plaintiff. The defendant No. 1 also bought some building materials, brick and sand etc to construct the boundary wall by force, but due to timely resistance he could not succeed. The plaintiff has further pleaded that the defendant No. 1 by a registered Deed No. 1-6219 dated 06.08.1979 sold to the plaintiff an area of land measuring 2 kranta and while making the construction, the defendant No. 1 encroached the portion of the land which had been sold to the plaintiff. The plaintiff many a times requested the defendant No. 1 to vacate the said land but it fell on deaf ear. The plaintiff has further pleaded that after the solenama was executed, the defendant No. 1, by the registered sale deed, sold to the plaintiff a piece land measuring 2 kranta, as stated earlier. Thereafter, the defendant No. 1 had started the construction of his shopping mall and while making such construction, the defendant No. 1 encroached a portion of the plaintiff's land which was purchased from the defendant No. 1. The plaintiff's request for vacating the land was not acted upon by the defendant No. 1. the plaintiff, in the context, prayed for decree declaring the right, title and interest in his favour including the confirmation of possession in respect of the schedule-D as provided in the plaint. The plaintiff has further asked for a decree of recovery of khash possession of the land described in Schedule-E by removing all obstruction and hindrance. Further a mandatory injunction has been asked for directing the defendant No. 1 to remove his un-authorized construction of his building which has been constructed on the ejmali path marked as 4B of the hand sketch map made part of the decree in T.S. 68/86 encroaching 2 ft. in breadth as described in the Schedule-F. As consequential and in furtherance of peaceful possession, the decree for permanent injunction has also been sought for, in respect of the Schedule-B of the land as described in the plaint. On the contrary, the defendant No. 1, the appellant by filing a written statement has raised that the suit is miserably barred by estoppels, waiver, acquiescence and limitation.
That apart, he has stated that what the plaintiff has stated that the landed property as described in the Schedule-1 of the plaint measuring 12 gandas 2 karas and 2 krantas and 6 1/2 dhurs is not a correct disposition of fact. According to him, the total land would be 12 gandas 2 karas and 9 1/2 dhurs, meaning a little bit higher than what has been described in the Schedule-1.
In para-13 of the written statement, the defendant No. 1, the appellant herein, has made the following statement:
"13. That the further averments of the plaintiff that in between the land of the plaintiff and the answering Defendant there is a vacant space of about 5 ft. in width and 84 ft. 6 inches in length and the same is the land of the plaintiff and is under his possession is strongly denied."
In the para-14 of the written statement, the defendant No. 1 has stated that the vacant land in between the land of the plaintiff and the answering defendant is 5" ft. 7" inches in width from North to the approximate mid part of the road length of 44' ft. Thereafter the width of the said vacant land from said mid part to Southern boundary covering a length of 40' ft. 6" inches is about 2(two) ft. The statement of the plaintiff that is 5' ft. spreading all through is a concocted statement and the plaintiff knows it very well as the building of the Defendant No. 1, standing in the said southern part, is 29' ft...
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