HIGH COURT OF TRIPURA AGARTALA RFA 22 of 2023 1. Shri Parimal Chakraborty, 2. Shri Samir Chakraborty, Both are sons of late Matilal Chakraborty of village-Tepania, P.S. R.K. Pur, District: Gomati, Tripura ………Defendant Appellants Versus Shri Manik Sutradhar, S/o late Girindra Sutradhar, village & P.O. Khilpara, P.S. R.K. Pur, Udaipur, District- Gomati, Tripura ……….Plaintiff Respondent For the Appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate. Mr. Suman Bhattacharjee, Advocate. For the Respondent(s) : Mr. Somik Deb, Sr. Advocate. Mr. P. L. Debbarma, Advocate. Date of hearing : 21.01.2025. Date of pronouncement of Judgment & Order : 05.02.2025 Whether fit for reporting : Yes ______ HON’BLE MR. JUSTICE T. AMARNATH GOUD HON’BLE MR. JUSTICE BISWAJIT PALIT J U D G M E N T & O R D E R [T. Amarnath Goud, J] Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. Suman Bhattacharjee, learned counsel appearing for the defendant-appellants. Also heard Mr. Somik Deb, learned senior counsel assisted by Mr. P.L. Debbarma, learned counsel appearing for the plaintiff-respondent. [2] The present appeal is filed under Section 96 of the Civil Procedure Code, 1908 by the appellants against the judgment and decree dated 24.08.2023 passed by the learned Civil Judge (Senior Division), Court No.1, Gomati District, Udaipur, Tripura in T.S. 44 of 2021 decreeing the suit in favour of the plaintiff respondent. [3] The brief fact of this case as enumerated in the plaint before the Court below is that the plaintiff (respondent herein) purchased land measuring 1.24 acres described in schedule A of the plaint vide registered Sale deed No. 889 of 2014 dated 19.05.2014 for consideration of Rs. 14,80,000/- only from defendant Nos. 1 & 2 (appellants herein) and thereafter, also took possession of the same. It was contended on behalf of the Plaintiff before the Court below that he got mutation of the said purchased land in his favour as per provisions of Section 46(1) of TLR & LR Act 1960. It was also stated by the plaintiff that out of total land measuring 1.24 acres, land measuring 0.84 acres is situated at Mouja Tepania and was recorded in Khatian No. 1457 in his favour and another land measuring 0.40 acres of land was recorded in Khatian No. 293 of Mouja Chataria in his favour. It was further asserted by the plaintiff that on 16.02.2015, he again purchased another 0.46 acres of Nal class of land, surveyed in RS plot No. 198 corresponding old plot No. 80 recorded in Khatian No. 1187 of Mouja Tepania from one Sri Narayan Chakraborty for consideration of Rs. 2,30,000/- only, which more particularly is described in schedule B of the plaint and on 16.02.2016, he also took possession of the same. Thereafter, plaintiff got mutation of the said purchased land in his name and incorporated his name in the same Khatian. [4] Plaintiff also stated that, defendants are his close associates and for his livelihood, he had to leave for Kuwait keeping his family at Khilpara. As the wife of the plaintiff was not in a position to look after the said purchased land, he engaged the defendants for taking care of the suit land on his behalf, with a condition that, defendants would vacate the suit land or the possession of the suit land as and when demanded or when the plaintiff returned back from Kuwait. It was agreed by the plaintiff and defendants that during their possession, defendants can produce crops on schedule B land of the plaint and enjoy usufructs. Since then the defendants were holding as permissive possessor of the suit land. The plaintiff claimed that, when he returned back from Kuwait to home on 06.08.2018, thereafter, on 15.08.2018, he met the defendants and asked them to vacate the possession of the suit land, but at that time, defendants refused to vacate the possession of the suit land. It was also asserted by the plaintiff that, defendants also denied his title over the suit land. The plaintiff also claimed that, defendants thereby, became trespassers since from 15.08.2018 over the suit land, as defendants denied his title and refused to part away the possession of the suit land. Thereafter, being aggrieved, the plaintiff filed a suit before the learned Court below for confirmation of title and recovery of possession over the suit land. [5] Thereafter, summons were duly served upon both the defendants and they by filing written statement contested the suit before the learned Court below. It was stated on behalf of the defendants that on 13.12.2018, the plaintiff entered into an agreement with defendant No.1 to sell .40 acres of land, appertaining to Hal plot Nos. 938 & 939 bounded by north- defendant No.1, south- Chandra Mohan Debnath and Nipendra Chakraborty, East- Ayat Ali. It was also asserted by the defendants that though the plaintiff purchased the suit land but sold out .40 acres of land out of it to defendant No. 1 by way of unregistered deed of agreement dated 13.12.2018 and thereby, defendant No. 1 is entitled to have registered sale deed executed by the plaintiff and in that connection defendant No. 1 also paid Rs. 2,00,000/- (two lakh) by issuing two number of cheques vide No. 19450 & 01. It was further asserted by the defendants that the consideration amount for the sale of .40 acres of land by way of unregistered deed of agreement was settled at the rate of Rs. 12,50,000/- and defendant No.1 was always ready and willing to purchase the suit land and also to pay the remaining amount of consideration money to the plaintiff and the defendants, on the said grounds, prayed for dismissal of the suit before the Court below with cost. [6] While contesting the case being case No. Title Suit 44 of 2021, the plaintiff examined himself as PW.1 and exhibited six number of documents in support of his claim in the suit, which were marked as Exbt.1, Exbt.2, Exbt.3, Exbt.4 series, Exbt.5 series and Exbt.6 series. On the other hand, from the side of the defendants, defendant examined himself as DW. 1 and exhibited no document from their side. Learned Court below considering the claim and counter claim made by the parties and perusing the material evidence on record, framed the following issues by its order dated 09.06.2022: “(i) whether the plaintiff has any cause of action to file the suit? (ii) whether the suit is maintainable in its present form and nature? (iii) whether the plaintiff is entitled to get the decree for confirmation of right, title and interest over the suit land? (iv) whether the plaintiff is entitled to get the decree for recovery of possession of the suit land? (v) to what other reliefs the plaintiff is entitled?” [7] Thereafter, on perusal of material evidence on record and upon hearing both the parties, learned Court below finally has decided the suit filed by the plaintiff by its judgment & order dated 24.08.2023 passed in Title Suit 44 of 2021, in the following manner: “……9. O R D E R In the result, the suit is decreed on contest without cost. Accordingly, plaintiff is entitled for confirmation of right, title and interest over the suit land described in schedule A and schedule B land of the plaint and is also entitled for recovery of the vacant possession of the said suit land. Hence, defendants are hereby directed to hand over the vacant possession of the suit land to the plaintiff within 3(three) months. Default to hand over the vacant possession of the suit land within the period as stipulated and ordered, plaintiff is entitled to knock the door of the Court and approach for delivery of the vacant possession of the said suit land as per law. Accordingly, Sr. Sheristadar of this Court is hereby directed to prepare the decree and place the same before me for obtaining my signature and seal within 14(fourteen) days from the date of passing of this Judgment. Hence, the suit is hereby disposed off on contest. Make necessary entry in the concerned TR.” [8] Aggrieved by the above-quoted order dated 24.08.2023 passed by the learned Court below, the defendant-appellants have filed the instant appeal seeking following reliefs: “a) Admit the Appeal b) Issue notice upon the respondent and call for the records of the Ld. Court below. AND c) After hearing this Appeal be pleased to set aside the impugned judgment and decree dated 24-08-2023 passed in TS 44 of 2021 passed by the Ld. Civil Judge(Senior Division), Gomati District, Udaipur Tripura. d) In the interim stay all operations of the impugned judgment and decree dated 24-08-2023 till disposal of Appeal......” [9] Mr. S.M. Chakraborty, learned senior counsel appearing on behalf of the defendant-appellants submits that the learned Court below while passing the impugned judgment and order dated 24.08.2023, has not considered the fact that the plaintiff- respondent made no prayer for declaration of right, title, interest over the suit land while seeking eviction of the defendant-appellants therefrom. It is contended that in absence of any such decree, a person in possession cannot be evicted as per law since the plaintiff-respondent in his plaint stated that the defendant- appellants denied the title of the plaintiff-respondent over the suit land. Learned senior counsel, therefore, urges this Court to set aside the impugned judgment and order passed by the learned Court below on 24.08.2023 and to allow the instant appeal. To support his contention, learned senior counsel for the appellants has placed reliance on the judgment of the Hon‟ble Apex Court in Anathula Sudhakar versus P. Buchi Reddy and others reported in (2008) 4 SCC 594, the relevant contends as referred by the learned senior counsel from the said judgment read as under: “.....13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title....” [10] On the contrary, Mr. Somik Deb, learned senior counsel appearing on behalf of the plaintiff-respondent opposes the contention made on behalf of the defendant-appellants. He submits that the respondent is the original owner of the suit land since, all his original sale-deeds, Khatians have been exhibited by the Court below and his entitlement over the property has been confirmed by the learned Court below. It is also submitted that once the entitlement of the plaintiff-respondent over the suit-land is confirmed, his right, title, interest over the property would be declared consequently. He further contends that the defendant- appellants neither have disputed the sale-deeds/khatians of the plaintiff-respondent nor have produced any document showing their entitlement over the suit property. He, therefore, urges this Court to dismiss the present appeal. [11] Heard learned counsel for the respective parties. Perused the material evidence on record. [12] Since, during argument, it is contended on behalf of the defendant-appellants that the plaintiff-respondent filed the plaint before the learned Court below for confirmation of title and recovery of possession over suit land and no prayer for declaration of title was made, the definitions of the words „confirmation‟ and „declaration‟ as defined in the Black‟s Law Dictionary are extracted here-under: Confirmation: “confirmation, n. (14c) 1. The act of giving formal approval; the ratification or strengthening of an earlier act <Senate confirmation hearings>. 2. The act of verifying or corroborating; evidence that verifies or corroborates <the journalist sought confirmation of the district attorney's remarks>. 3. The ratification of a voidable estate; a type of conveyance in which a voidable estate is made certain or a particular estate is increased <deed of confirmation>. 4. The act by which a court enters judgment on an arbitration award. The result of confirmation is that the award has the same force as any other court judgment. 5. Civil law. A declaration that corrects a null provision of an obligation in order to make the provision enforceable. 6. Commercial law. A bank's agreement to honor a letter of credit issued by another bank.......” Declaration: “declaration, n. (15c) 1. A formal statement, proclamation. or announcement, esp. one embodied in an instrument. Cf. AFFIDAVIT.....” From the above quoted definitions, we can understand the literary meaning of the terms „confirmation‟ and „declaration‟. [13] Admittedly, in this case, the present defendant- appellants could not show their right, title and interest over the suit land by adducing any cogent oral/documentary evidence on record excepting the plea of possession. [14] In course of hearing, learned senior counsel, Mr. S.M. Chakraborty in usual fairness submitted that the respondent plaintiff before the learned Court below, did not seek any relief under Section 34 of the Specific Relief Act, 1963. For convenience, the relevant provision of Section 34 of the Specific Relief Act, 1963 is mentioned herein-below: “34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” [15] Herein, in the given case, the plaintiff-respondent filed the suit for confirmation of title and recovery of possession over suit land under Section 5 of the Specific Relief Act, 1963 without seeking any relief for declaration of title as required under Section 34 of the said Act. The plaintiff-respondent in his plaint specifically, in Para Nos.5 and 7, stated that the defendants of the original suit i.e. the appellants herein denied his title over the suit land. Hence, in view of the principle of law laid down by the Hon‟ble Apex Court in the afore-noted case cited supra, this Court is of the considered view that the learned Court below committed error in granting decree in favour of the plaintiff-respondent without asking him for seeking declaration of title under Section 34 of the Specific Relief Act. [16] In view of the above facts and circumstances, this present appeal is allowed and the impugned judgment and decree dated 24.08.2023 delivered by the learned Civil Judge (Senior Division), Court No.1, Gomati District, Udaipur, Tripura in T.S. 44 of 2021 is hereby set aside. The matter is remanded back to the learned Trial Court with a direction to give an opportunity to the plaintiff-respondent to seek relief for declaration of title as required under Section 34 of the Specific Relief Act by amending the plaint and thereafter, to deliver a fresh judgment after making proper issues and also after taking evidence of both the sides afresh, in accordance with law. The entire exercise shall be made within a period of six months from the date of delivery of this judgment. With the above observation and direction, the instant appeal is disposed of. As a sequel, miscellaneous application(s), pending if any, shall also stand closed. Send down the LCR alongwith the copy of this judgment. B. PALIT, J T. AMARNATH GOUD, J Sabyasachi G. SABYASACHI GHOSH Digitally signed by SABYASACHI GHOSH Date: 2025.02.07 14:25:04 +05'30'