CHAMELI DEBI Vs. DIPAK NATH

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 29.11.1995, passed by learned Additional District Judge, West Tripura, Agartala in Title Appeal No. 42 of 1994 affirming the judgment and decree passed by learned Assistant District Judge, West Tripura, Agartala on 27.4.1994 in Title Suit No. 4 of 1972 whereby right, title and interest of the plaintiffs, respondents herein, in respect of the suit lands were declared with a decree for recovery of possession by evicting therefrom the defendants, appellants herein.

(2.) The brief facts relevant for the present proceeding are that late Upendra Ch. Math was the owner of the suit land along with other lands from whom the plaintiff-respondents being his legal heirs inherited the same. It is the case of the plaintiff-respondents that late Upendra Ch. Nath allowed Jagabandhu Nath, the predecessor of the appellants herein to live on the suit land on condition to vacate the same whenever asked for by the owner. But when Jagabandhu refused to vacate, Upendra instituted Title Suit No. 132 of 1962 for recovery of possession and the proceeding ended in a compromise decree (for short 'sole-decree'). Jagabandhu admitted in that solenama the title of Upendra and agreed to vacate the suit land on condition Upendra's wife would transfer 16 gandas of lands, not being the suit lands in favour of Jagabandhu. After the suit was decreed, Jagabandhu filed Title Suit No. 5 of 1967 against Upendra for cancellation of the solenama on the ground of fraud. The suit was dismissed. The appeal and the second appeal preferred therefrom by him were also dismissed. Upendra put his decree into execution by instituting 5 Ex(T) of 1963 and on 18.9.1964 the decree was executed by evicting Jagabandhu. But on the same day after the process server of the executing court formally put Upendra into possession of the suit land, Jagabandhu dispossessed Upendra at dead of night. Having been dispossessed, thus, the legal heirs of Upendra, who was no more at the relevant time, filed Title Suit No. 4 of 1972 again for declaration of their right, title and interest over the suit land and for recovery of possession thereof. After a full dressed trial, contested by Jagabandhu, the learned trial court decreed the suit declaring right, title and interest of the legal heirs of Upendra with a decree for recovery of possession of the suit land after evicting Jagabandhu therefrom. The learned trial court passed an order perpetually restraining Jagabandhu from entering into the suit land or creating disturbance in the possession of the legal heirs of Upendra. As the decree was for recovery of possession, the order of perpetual injunction was incompatible and uncalled for, which has been set at right by the learned first appellate court.

(3.) Aggrieved by the judgment and decree of the learned trial court as noted above, Jagabandhu filed Title Appeal No. 42 of 1994, the judgment wherein has been assailed herein. Before the learned first appellate court, the appellants raised few technical questions such as (i) Title Suit No. 2 of 1962 was decreed in favour of Upendra on the basis of a solenoma. which contained a provision that 16 gandas of land, outside the suit land, owned by Upendra's wife would be transferred in favour of Jagabandhu and because of that provision alone the said sole-decree was required to be registered under Section 17(2)(vi) of the Registration Act. As the same was not registered, it was contended that the sole-decree by itself did not confer right, title and interest on Upendra or his legal heirs, (ii) The sole-decree being in the nature of exchange attracted the provision of Section 118 of the Transfer of Property Act and for that reason it was to be registered under Section 119 of that Act. (iii) The learned trial court passed the decree against a dead person for the reason that Kumudini Devi, the plaintiff No. 1 in that suit died on 7.6.1989. On the third point, the learned first appellate court, however, on perusal of the records found that the other plaintiffs being daughter of Kumudini Devi filed a petition on 24.6.1989 for deletion of her mother's name and as she was already on record being legal heir of Kumudini Devi, it cannot be said that the decree was passed in favour of a dead person.