RAMESH CHANDRA DEB Vs. BARINDRA KUMAR CHAKRABORTY

JUDGEMENT

(1.) This second appeal arises from the judgment dated 9th May, 1984 and the order signed on 26th June, 1984 passed by the learned District Judge, North Tripura, Kailashahar in Title Appeal No. 1 of 1982 / Misc. Appeal No. 1 of 1982 partly affirming the judgment and order passed by the learned Subordinate Judge, North Tripura, Kailashahar in Civil Misc. Case No. 23 of 1979 allowing the application for restitution of possession under Section 144 C.P.C. in respect of the suit land in Title Suit No. 1 of 1966 in favour of the defendant-respondent; and, remanding the case to the learned Trial Court with regard to the determination of the amount of mesne-profit.

(2.) The facts of the case in a short compass are as follows : The present appellant as a plaintiff! instituted a case being Title Suit No. 1 of 1966 in the Court of the Additional Subordinate Judge, West Tripura, Agartala for a declaration of his right, title and interest over the suit land measuring 11 kanis 5 gandas 3 karas 1 kranta and 5 dhurs land and for khas possession as well as mesne-profit as against 3 main defendants including Sri Barindra Chakraborty, the present respondent in this appeal. The present respondent as defendant No.1 contested the suit by filing written statement. In the meantime, the respondent Barindra Kr. Chakraborty also filed a case being T.S9/1967 in the Court of Munsiff, Dharmanagar for declaration of the title deed of plaintiff-appellant as forged one. By a common judgment dated 30.7.1970 the learned Additional Sub-Judge, decreed the suit in favour of the plaintiff-appellant and ordered for delivery of possession in favour of the appellant. However, the prayer for mense-profit was rejected and T.S. 9 of 1967 filed by the respondent herein was dismissed.

(3.) The respondent as defendant No. 1 preferred an appeal being Appeal No. 26 of 1970 / 7 of 1971 in the Court of the learned District Judge, Tripura and the said appeal was allowed by judgment and order dated 24.6.1972 and as a result of which the case being T.S. 9 of 1967 filed by the respondent-defendant was decreed. Being dissatisfied with the judgment and decree dated 24.6.1972 the present appellant filed Second appeal being Second Appeal Nos. 22 and 23 of 1972 before the Gauhati High Court, but the said two (2) appeals were dismissed on 22.8.1979 on contest. In the mean time, the present appellant as plaintiff-decree holder started execution proceeding under 7 (T) Ex/70 in the Court of the learned Additional Sub-Judge. In execution of the decree passed in 1 T.S./1966, mentioned above, the possession of the said land measuring 11 kanis 5 gandas 3 karas 1 kranta and 5 dhurs was given to the appellant-plaintiff on 17.11.70. On appeal, the appellate Court dismissed the suit 1/T.S./66 filed by the present appellant-plaintiff. Moreover, the Second appeals Nos 22, 23 of 1972 filed by the appellant-plaintiffs were also dismissed. In view of the above position, the respondent-defendant filed an application under Section 144 C.P.C. for restitution of the suit land, the possession of which was delivered to the present appellant-plaintiff in Execution No. 7(T)Ex/70 as per decree in T.S. No. 1 of 1966 passed by the Additional Sub-Judge, Agartala. The said application was contested by the present appellant- plaintiff by filing a written objection. After hearing the parties, the learned Subordinate Judge, North Tripura, Kailashahar by his judgment dated 30th November, 1981 passed in Civil Misc. Case No. 23 of 1979 allowed the said application under Section 144 C.P.C. on contest with costs. In the said case the learned Subordinate Judge, North Tripura, Kailashahar directed the appellanl-plaintiff to hand over the possession of the suit land to the present respondent-defendant Shri Barindra Kr. Chakraborty with effect from the date of order of judgment and further directed the appellant- plaintiff to pay the compensation to be calculated @ Rs.2000/- per year from 17.10.1970 till the date of restitution or otherwise delivery of possession of the suit land and the payment of compensation would be given effect to through the Court Being aggrieved by the judgment and order passed by the Subordinate Judge, North Tripura, Kailashahar, the present appellant-plaintiff preferred an appeal being Title Appeal No. 1 of 1982 / Misc. Appeal No). 1 of 1982 in the Court of the learned District Judge, North Tripura, Kailashahar. The learned District Judge, North Tripura, Kailashahar after hearing the parties dismissed the appeal so far the judgment and order of the learned Subordinate Judge, relating to the restitution of the land brat allowed the appeal so far the order relating to mesne profit. The First Appellate Court remanded the matter relating to the mesne-profit to the Court of the learned Subordinate Judge,North Tripura, Kailashahar, with a direction that the learned Suborninate Judge should record the evidence of both the parties on mesne-profit. As the present appellant-plaintiff dissatisfied with the impugned judgment and order dated 9th May'84, passed by the District Judge, North Tripura, Kailashahar in Title Appeal No. 1 of 11982 / Misc. Appeal No. 1 of 1982 preferred this second appeal.