BABUL DEBNATH Vs. KAMAL GHOSH
HIGH COURT TRIPURA
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T.AMARNATH GOUD,J. -
(1.)This instant second appeal has been filed under Sec. 100 of the Code of Civil Procedure, 1908 (for short, 'CPC') aggrieved by the judgment and decree dtd. 13/12/2019 and 16/12/2019 passed by the learned District Judge, Gomati District, Tripura, Udaipur in T.A. 12 of 2007, whereby, the learned First Appellate Court set aside the judgment and decree dtd. 29/3/2007 and 4/4/2007 respectively passed in T.S. 11 of 2006 by the learned Civil Judge(Sr. Division) South Tripura(now Gomati) District, Udaipur.
(2.)The facts of the case in brief leading to this present second appeal are that Smt. Jyotsnamoyee Datta under a registered deed No. 1-398 dtd. 20/3/1970 purchased from one Jogesh Debnath land described in the schedule 'A' of the plaint. The suit land as described in schedule 'B' of the plaint is situated within the land described in schedule 'A' of the plaint. The purchased land was looked after by her husband Rabindra Kumar Ghosh. In the year 1980, said Jyostsnmoyee Ghosh permitted Sukumar Nath (predecessor of appellants-4 to 7) and Babul Nath (predecessor of appellants-1 to 3) to occupy schedule 'B' land which is the suit land with the condition to vacate the same as and when it would be required by Jyostsnamoyee Ghosh or her successors. Smt. Jyotsynamoyee Ghosh died on 1/11/2004 leaving behind the plaintiff-respondents as her legal heirs in equal shares. The plaintiff-respondents asked the appellants to vacate the possession of the suit land. As they denied, the plaintiff-respondents served a notice upon the defendants on 31/3/2006 to vacate the suit land. In a written reply, the defendants categorically refused to vacate possession of the suit land. Hence the plaintiff-respondents filed T.S. 11 of 2006 in the Court of Civil Judge(Sr. Division), South Tripura, Udaipur for declaration of right, title and interest, recovery of possession, and also for mesne profit @ Rs.500.00 per day commencing from 1/7/2006 till recovery of possession. The plaintiff-respondents valued the suit at Rs.1,00,000.00 for the purpose of jurisdiction and paid the Court fee of Rs.2558.25 only.
(3.)The defendants entered their appearance by filing a joint written statement claiming inter alia, that the suit was barred by limitation, not adequately valued, adequate Court fee was not paid and therefore, it was not maintainable. They denied each and every averment of the plaint stating that the plaintiffs' never exercised possession over the suit land and that they are not occupying the suit land as permissive possessor under the plaintiffs, but they are exercising adverse possession all along since 1966 A.D. by raising construction. There on, the defendants denied the right, title, and interest of vendor Jogesh Chandra Debnath and the plaintiffs as well. They also denied the claim of any mesne profit. Ultimately, the defendant-appellants urged for dismissal of the suit.
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