AMIYANSHU SHARMA Vs. MATILAL DEY
HIGH COURT TRIPURA
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ARINDAM LODH, J. -
(1.)This second appeal arises out of the judgment and decree dtd. 1/2/2019 and 2/2/2019 respectively, passed by learned District Judge, North Tripura, Dharmanagar, in connection with Title Appeal No. 13 of 2017 whereby and whereunder the appellate court had dismissed the judgment and decree dtd. 28/1/2017 and 31/1/2017, passed in connection with TS (eviction) No. 03 of 2016, passed by learned Civil Judge, Sr. Division, Dharmanagar, North Tripura.
2.1. The suit is concerned about a land measuring 0.804 acres mentioned in the schedule of the plaint. The claim of the plaintiff-appellants [here-in-after referred to as "plaintiffs"]s is that their father, late Arun Chandra Mohanta (Sharma) was the original owner of the suit land. The record of right was also created in his favour. After his death the record of right i.e. Khatian was created in the name of his legal heirs i.e. plaintiffs herein. It is the case of the plaintiffs that the defendant was residing nearby the suit land who was familiar to the plaintiffs. Since the plaintiffs were not residing over the suit land, they requested the defendant to look after the entire property on their behalf. But, when on 15/12/2015, son of plaintiff no. 1, Amiyangshu Sarma went to the suit land along with his workers for raising boundary fencing in the suit land, the defendant made obstruction and threatened him with dire consequences. Therefore, the plaintiffs instituted the present suit for declaration of right, title and interest and recovery of possession of the suit land. One of the plaintiffs of the original suit, namely, Anil Krishna Sharma, being died, was substituted by his legal heirs, i.e. the appellant nos. 1, 2 and 3 in the present second appeal.
2.2. The defendant-respondent [here-in-after referred to as the defendant] contested the suit and on the merit of the case he contended that originally the suit land was recorded under Khas Taluk No. 77 of town mouja pertaining to C.S. Plot No. 615 under Khatian No. 345 of mouja Dharmanagar in the name of deceased Uttara Dey. Said Uttara Dey transferred the suit land along with other lands by registered gift deed vide no. 1-7120 dtd. 21/11/1970 in favour of Kiran Bala Dey, since deceased, and her name was recorded as owner-in-possession (Khas Taluk) and had been possessing the suit land during her life time along with her son Mohanta Dey alias Deb and defendant Matilal Dey. After the death of Kiran Bala Dey, the defendant Matilal Dey possessed the suit land continuously without any interruption.
(3.)After exchange of pleadings, learned trial court framed the following issues:
(i) Whether the suit is maintainable?
(ii) Whether plaintiff has right, title and interest or any share over the suit land?
(iii) Whether Uttara Dey since deceased was the original owner of the suit land?
(iv) Whether the registered gift deed No. 1-7120 dtd. 21/11/1970 executed by Uttara Dey since deceased in favour of Kiran Bala Dey is valid, lawful and biding upon plaintiffs?
(v) Whether on 15/12/2015 at 11 a.m. defendant dispossessed the plaintiffs from the suit land?
(vi) Whether there is cause of action in the suit?
(vii) Whether plaintiffs are entitled to get the decree of declaration of their right, title and interest over the suit land along with recovery of Khash possession?
(viii) Whether plaintiffs are also entitled to get mesne profit at the rate of Rs.1000.00 per day w.e.f. 15/12/2015 from defendant and cost of the suit?
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