S. C. DAS, J. - - (1.) THIS second appeal under Section 100 of the Code of the Civil Procedure,1908 (for short, CPC) has been filed challenging the judgment and decree dated 15.05.2002 passed by learned Additional District Judge, Dharmanagar, North Tripura in T.A. No.3 of 2000. The appeal has been admitted for hearing on the following substantial questions of law formulated by this Court on 07.09.2002: - (I) Whether the suit can be filed against Nagar Panchayat without giving notice under Section 271 of the Tripura Municipal Act, 1994 ? (II) Whether the appellants have acquired any right over the suit land by way of prescription?
(2.) THE facts discerned from the record, in short, is that respondent Nos. 1 and 2 being plaintiffs, instituted Title Suit No. 8 of 1999 in the Court of Civil Judge, Jr. Division, Dharm -anagar, North Tripura seeking declaration of right, title and interest in the suit land mentioned in Schedule 'B' of the plaint which is part and parcel of Schedule 'A -i' and 'A -ii' of the plaint and also prayed for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs in the suit land. The description of the suit land given at the bottom of the plaint reads thus: - judgement_41_gault(tr)5_2013.htm Respondent Nos. 1 and 2 contended that their respective father purchased Schedule 'A -i' and 'A -ii' land and they inherited the property after the death of their respective father. 'B' Schedule land is a part and parcel of the Schedule 'A -i' and 'A -ii' land which has been in possession of them all along and the defendants had no right, title and interest in the 'B' Schedule land. Khatians were prepared in the name of the plaintiffs in respect of the land described in the Schedule and the defendants in collusion made an attempt to construct a drain occupying the 'B' Schedule land. On 27.03.1999 at about 9 -00 a.m. the defendants desperately made an attempt to enter into the suit land and tried to construct a drain but because of the resistance made by the plaintiffs, the defendants failed in their attempt. On that day itself the brother of plaintiff No.2 namely Atul Trivedi submitted a representation to defendant No.3, the Chairperson of Dharmanagar Nagar Pancha -yat raising protest but ignoring the represen -tation, the defendants again made an attempt to enter into the suit land on 23.04.1999 and therefore, the plaintiffs filed the suit on 26.04.1999 seeking relief as aforesaid along with application for interim order. The plaintiffs arrayed 4 (four) respondents including the present appellant. Originally, Sub Divisional Officer, Dharmanagar was arrayed as respondent No.2 as Member Secretary of Dharmanagar Nagar Panchayat but subsequently, after respondent Nos.1 and 2 submitted a joint written statement, the plaintiffs by way of amendment deleted the name of Sub Divisional Officer and included the Executive Officer of Nagar Panchayat as defendant No.2.
(3.) DEFENDANT No.1 and defendant No.2 (Sub Divisional Officer) submitted a joint written statement inter alia stating that no notice was served under Section 80 of CPC and that from January, 96 Dharmanagar Town became a Nagar Panchayat as per the provision of Tripura Municipal Act,1994 and after constitution of the Nagar Panchayat, S.D.O. ceased to be the Member Secretary of Nagar Panchayat and as per provision of Tripura Municipal Act,1994 an Executive Officer is functioning as the Executive head of the Nagar Panchayat. After that written statement was filed by the defendant No.1 and the defendant No.2(Sub Divisional Officer) the plaintiffs amended the suit and included Executive Officer of the Nagar Panchayat as defendant No.2. The Executive Officer being defendant No.2 submitted a written statement denying all the averments made in the plaint and further stated that the suit land was a drain for passage of water of a part of the locality of Dharmangar Town and the drain was in existence for about 100 years. In the event of closure of portion of the drain by the plaintiffs, a proceeding under Section 133 Cr.P.C. was initiated which was numbered as Misc. Case No. 48 of 1997 and that Misc. Case was pending for decision and therefore, the title suit was not maintainable. It was also contended by the defendant No.2 that a proposal had been initiated by the defendant to the Government for acquisition of the suit land for the purpose of development of drain cum road/path way and letter No.F.29(5)/NAA/DMN/90 -54/56 had been written to Sub Divisional Officer, Dharmanagar with copy to others for the purpose of acquisition.;