MOUNA BRATA SARKAR Vs. SUBRATA SARKAR
LAWS(TRIP)-2021-4-40
HIGH COURT TRIPURA
Decided on April 20,2021

Mouna Brata Sarkar Appellant
VERSUS
SUBRATA SARKAR Respondents

JUDGEMENT

ARINDAM LODH, J. - (1.) Shri Mouna Brata Sarkar and his wife Smt. Maya Deb (Sarkar) have presented this first appeal under Section 96 of the Code of Civil Procedure against the judgment dated 30.07.2018 and decree dated 08.08.2018 passed by the learned Civil Judge (Senior Division), Belonia, South Tripura in connection with T.S. 01 of 2015.
(2.) The factual panorama involved in this case, in a nutshell, may be stated hereunder:- 2.1. The plaintiff-respondent, Shri Subrata Sarkar (here-in-after referred to as plaintiff) instituted the suit for declaration of title and recovery of possession of the suit land from the defendant-appellants (here-in-after referred to as defendants). It is the pleaded case of the plaintiff that he purchased the entire 'A' schedule land including the suit land under schedule 'B' of the plaint measuring 3 gandas 3 kara in the name of his mother Arati Sarkar. The defendant Nos.1 and 2 are the brother and sister-in-law (brother's wife) of the plaintiff. The plaintiff constructed huts and kitchen over the land under the schedule. The plaintiff also constructed single storey building consisting of two rooms. Defendant No.1 requested him to accommodate him with his spouse in that building. The defendant No.1 also purchased a plot of land from one Kanti Lal Dasgupta to make their own home. But, they were in no mood to shift their place of residence. The mother of the plaintiff had transferred the land under the schedule by dint of a gift deed dated 09.07.2012. The mother was not satisfied with the activities and behaviour of the defendants and expressed that if the defendants are allowed to stay in the same house along with her, then, she would die of mental depression. The plaintiff requested the defendants to shift their place of residence, but they denied. The plaintiff issued a notice upon them to vacate the rooms under their possession. But, they neither vacated nor replied to the notice. The defendants never spent a coin for the benefit of their mother. The defendants have been occupying three rooms forcibly. Since they denied to vacate the building and the rooms therein, the cause of action of filing the instant suit arose. It has further been pleaded that defendant No.2 being in service in the administrative department of the Government of Tripura had made a mischievous attempt to prevent the plaintiff from recording his name as 'raiyat' in the record of right in a mutation proceeding. To substantiate his claim, the plaintiff has adduced the following documents:- 1) the original sale deed bearing No.1-635 for the year 1988; 2) gift deed bearing number 1-842 for the year 2012 executed by his mother; 3) certified copy of mutation proceeding; 4) certified copy of the finally published khatian in the name of the mother of the plaintiff. 2.2. On being summoned, the defendants appeared and contested the suit by filing written statement stating that the suit is barred by limitation and the suit land was jointly purchased by the plaintiff and the defendant No.1 in the name of their mother and constructed the house thereon. The defendants have asserted that taking advantage of simplicity and innocence of an old woman, the plaintiff managed to obtain the gift-deed for his wrongful gain. The said gift deed was nothing but a mere paper transaction. 2.3 Based on the aforesaid pleadings, the learned Trial Court framed the following issues:- 'i) Whether the suit is maintainable in its present form and nature? ii) Whether the plaintiff has right, title and interest over the suit land? iii) Whether the delivery of suit property was necessary upon the gift deed being made? iv) Whether the plaintiff is entitled to get recovery of khas possession of the suit land? v) Whether the plaintiff is entitled to get any other relief or reliefs?' 2.4. After framing of issues, evidences were recorded by the respective parties. Having heard the learned counsels and on consideration of the documents, the learned Trial Judge decreed the suit in favour of the plaintiff asking the defendants to deliver possession in favour of the plaintiff as he is entitled to get recovery of khas possession of the suit property from the defendants. It is further held by the learned Trial Court that the gift deed has been duly executed and the plaintiff is entitled to the delivery of the suit property by virtue of the gift deed. It is further held that the plaintiff has been able to establish his title over the suit land.
(3.) Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge, Senior Division, the defendants have preferred the present first appeal.;


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