Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 878 OF 2009
SMRITI DEBBARMA (DEAD)
THROUGH LEGAL REPRESENTATIVE
.....
APPELLANT
VERSUS
PRABHA RANJAN DEBBARMA AND OTHERS ..... RESPONDENTS
J U D G M E N T
SANJIV KHANNA, J.
On 19.06.1986, Smriti Debbarma, as an attorney and on
behalf of Maharani Chandratara Devi, had filed Title Suit No. 66 of
1986, inter alia praying for declaration that Maharani Chandratara
Devi is the owner of the property known as ‘ Khosh Mahal’,
described in Schedule ‘A’ to the original plaint, as under:
“ S C H E D U L E - A.
Old Dar Tashkishi Taluk No. 178 (now Agartala Town
Sheet No. 3), Khatian No. 4882, Dag Nos. 13142, 13144,
13176/26261 and 13144/51733, commonly known as
“Khosh Mahal”, within this land measuring One Kani five
Gandas two karas, three kranta and ten dhurs only.”
Other reliefs included a declaration that any
Signature Not Verified
Digitally signed by
SWETA BALODI
transfer/conveyance for and on behalf of the plaintiff made by late
Date: 2023.01.05
17:25:36 IST
Reason:
Civil Appeal No. 878 of 2009 Page 1 of 27
1
Bikramendra Kishore Debbarma and his legal representatives,
impleaded as defendant nos. 1 to 7 to the civil suit, should be
declared illegal and void, and that the defendants and their agents
should be restrained from entering, selling or alienating the
Schedule ‘A’ property. In addition, the plaintiff had prayed that she
has right, title and interest in Schedule ‘B’ property, namely the
shares and business of M/s. Hotel Khosh Mahal Limited, Agartala.
2. Post recording of the statement of witnesses, and the report of the
Court Surveyor dated 20.01.1995, marked as Exhibit-I, the plaint
was amended, and the land mentioned in Schedule ‘A’ was
substituted and increased to 2 Kanis 8 Gandas 3 Karas and 8½
Dhurs. Paragraphs 26(A) to 26(D) and paragraphs 27(A) to 27(C)
to the plaint were added. The prayer clause was amended to
include a direction to the Survey and Settlement authority to
delete/expunge the record of rights standing in the name of
defendant nos. 8 to 12 as void and inoperative. Prayer for direction
to the Director of Settlement and Land Records to issue a record of
rights in the name of the plaintiff for the Schedule ‘A’ property, and
to confirm the possession of the plaintiff of the Schedule ‘A’ property
was made.
1
Alias “Bidurkarta”.
Civil Appeal No. 878 of 2009 Page 2 of 27
3. Earlier, defendant nos. 8 to 12 were impleaded as defendants in
the Title Suit vide order dated 15.09.1989. These defendants had
purchased portions of land vide the sale deeds executed by the
Managing Director of M/s. Hotel Khosh Mahal Limited. The sale
deed in favour of the defendant no.8, marked as Exhibit-E, dated
17.07.1985, is prior to the institution of the suit in question, which
was filed on 19.06.1986.
4. Maharani Chandratara Devi was the sixth wife of the late Maharaja
Birendra Kishore Debbarma. She was not survived by her children
who had predeceased her. Maharani Chandratara Devi did not
enter the witness box and depose as a witness. Maharani
Chandratara Devi had expired soon after filing of the suit on
27.12.1988.
5. Smriti Debbarma was substituted as the plaintiff, as the legal
representative of Maharani Chandratara Devi, who had inherited
the Schedule ‘A’ property and other properties in terms of the Will,
marked as Exhibit-4, dated 15.10.1985 of Maharani Chandratara
Devi. The Will has not been probated, and was disputed by the
2
defendants before the trial court . Smriti Debbarma, had expired
2
The trial court accepted the genuineness of the will propounded by Smriti Debbarma. It appears this
finding was challenged in the first appeal filed before the High Court of Gauhati and the appeal was
allowed, albeit the question of the genuineness of the will has not been examined.
Civil Appeal No. 878 of 2009 Page 3 of 27
during the pendency of the present appeal and is now represented
by her legal representatives.
6. By judgment dated 23.11.1996, the suit was decreed holding that
the plaintiff had right, title and interest in the Schedule ‘A’ property,
as amended, and the plaintiff was entitled to khas possession of the
Schedule ‘A’ property after evicting all the defendants and was
entitled to remove all obstructions. Further, any transfer and/or
conveyance of any portion of the Schedule ‘A’ property made by
late Bidurkarta and defendant nos. 1 to 7 was illegal and void.
Directions were issued to make correction in the records of the
office of the Sub-Registrar, Municipal Holdings etc. by deleting the
names of M/s. Hotel Khosh Mahal Limited and/or defendant nos. 8
to 12, and that the name of the plaintiff should be recorded in all
records relating to the Schedule ‘A’ property. The defendants, their
agents etc. were restrained from entering into the Schedule ‘A’
property and creating any sort of disturbance in the peaceful
possession of the plaintiff over the same. The Survey Report
(Exhibit-I) was directed to form part of the decree.
7. However, the trial court did not grant and therefore, is deemed to
have rejected the prayer of the plaintiff for a decree in respect of
the Schedule ‘B’ property. The plaintiff did not challenge the decree
Civil Appeal No. 878 of 2009 Page 4 of 27
of the trial court dismissing her suit in respect of the Schedule ‘B’
property. Decree of the trial court to this extent has attained finality.
8. The defendants preferred appeals against the decree in respect of
the Schedule ‘A’ property before the Gauhati High Court, which
have been allowed by the impugned judgment dated 17.05.2006.
This judgment of reversal inter alia holds that the plaintiff on the
basis of evidence and documents placed on record has not been
able to discharge the burden of proof to establish legal ownership
and title to the Schedule ‘A’ property. We will elaborate on the
evidence and reasons recorded by the High Court subsequently.
The judgment also refers to the Tripura Land Revenue and Land
Reforms Act which came into force in 1960, and observes that
certain rights may have accrued to the state government in respect
of the Schedule ‘A’ property. Albeit the High Court clarified that the
question pertaining to the right, title and interest of the defendants
remains to be adverted, and the defendants could approach the
appropriate forum.
9. We would now proceed to examine the averments made in the
pleadings, including the plaint, and the evidence led by the parties.
10. The plaint and the claim made by Smriti Debbarma, who had
deposed as PW-1, is predicated on the Deed of Patta , marked as
Civil Appeal No. 878 of 2009 Page 5 of 27
Exhibit-12, executed by Maharaja Durjoy Kishore Debbarma, son
of Maharaja Birendra Kishore Debbarma in favour of Bidurkarta on
31.10.1951. Subsequently, Bidurkarta on 25.06.1952 had executed
an Ekrarnama, marked as Exhibit-5, acknowledging that the rights
granted to him under the Deed of Patta (Exhibit-12) actually belong
to Maharani Chandratara Devi. To this extent, there is no dispute.
11. The plaint refers to and accepts that a charter executed by
Maharaja Bir Bikram Kishore Debbarma, incorporated a private
3
limited company, on 24.01.1351 Tripura Era or 1941 A.D. , namely,
M/s. Hotel Khosh Mahal Limited. Further, M/s. Hotel Khosh Mahal
Limited, after its incorporation, had acquired huge properties in
Agartala town. The plaintiff claims that she is one of the major
shareholders of this company. However, there is no evidence or
material on record to show the shareholding of Maharani
Chandratara Devi in M/s. Hotel Khosh Mahal Limited. As noted
above, the plaintiff’s prayer for a decree in respect of shares and
business of M/s. Hotel Khosh Mahal Limited was declined by the
trial court, which decree remains unchallenged by the plaintiff and
has been accepted. Paragraph 7 of the plaint states that M/s. Hotel
Khosh Mahal Limited was established after taking the land and
3
For short, “T. E.”.
Civil Appeal No. 878 of 2009 Page 6 of 27
building of Schedule ‘A’ property, which was given on lease by
Maharani Chandratara Devi. The lease had expired long back. Date
of execution and the term of the lease is not indicated. No lease
deed or surrender document was placed on record and proved.
Nevertheless, we would record that the plaint accepts that M/s.
Hotel Khosh Mahal Limited was in possession of the Schedule ‘A’
property.
12. Maharani Chandratara Devi had appointed Bidurkarta as her
attorney vide registered power of attorney executed by her on
29.10.1969 because of her ill-health, old age and religious
mentality, and as she used to primarily reside at Varanasi, Haridwar
and/or Dehradun. Later on, she cancelled this power of attorney on
06.03.1970 and instituted a civil suit T.S. No. 95/72 in 1972 for
cancellation of the registered gift deed executed on 12.01.1970 by
rd
Bidurkarta transferring her 1/3 share of the ‘Rupchaya’ Cinema
Hall business to Karnakishore Debbarma and Sahadeb Kishore
Debbarma. The suit was decreed on 17.06.1983, and the gift deed
was cancelled. The facts stated in this paragraph have been
established and proved by the plaintiff.
13. The plaint states that the hotel business of M/s. Hotel Khosh Mahal
Limited had closed down due to heavy losses and mismanagement.
Civil Appeal No. 878 of 2009 Page 7 of 27
Thereupon, the land and building were given to M/s. Indian Airlines
Corporation Limited. Bidurkarta used to send rent received from the
tenant to Maharani Chadratara Devi. However, with the passage of
time, the remittances became far and few, and they eventually
stopped. Bidurkarta had, in collusion with the defendants,
transferred Schedule ‘A’ property and Schedule ‘B’ business to his
wife defendant no.1- Jyoti Debbarma. Defendant no.2- Prabha
Ranjan Debbarma, son of Bidurkarta, an I.A.S. Officer and a central
government employee, would collect monthly rent from M/s. Indian
Airlines Corporation Limited, though he had no connection with the
Schedule ‘A’ property.
14. The plaint, post the amendment, had claimed that M/s. Indian
Airlines Corporation Limited had vacated the property on
30.06.1986. Thereafter, the plaintiff through her workmen and
agents had taken possession of the Schedule ‘A’ property and
started a guest house under the name and style of ‘M/s. Star Guest
4
House’. However, as the suit was dismissed in default , the
defendants took advantage, dispossessed the plaintiff and took
possession of the Schedule ‘A’ property. The plaintiff had initiated
4
The Title Suit No. 66 of 1986 was dismissed in default vide order dated 28.04.1988. A restoration
petition in Misc. Case No. 69 of 88 for the Title Suit No. 66 of 1986 was filed by the plaintiff and the
Title Suit No. 66 of 1986 was restored vide order dated 13.07.1989, which also disposed of Misc. Case
No. 69 of 88.
Civil Appeal No. 878 of 2009 Page 8 of 27
proceedings under Section 144 of the Code of Criminal Procedure,
1973, in the court of Sub-Divisional Magistrate, Agartala vide
Miscellaneous No. 75/86, whereby the defendants were restrained
from disturbing the possession of the plaintiff. However, vide order
dated 26.08.1986 passed by the Sub-Divisional Magistrate,
Agartala, a police officer was appointed as a receiver. This action
of the Sub-Divisional Magistrate, Agartala, it is contended, illegal
and improper as the plaintiff had already instituted the suit in
question.
15. Defendant nos. 1 to 7 in their written statement had relied upon the
Deed of Patta, marked as Exhibit-A, executed by Maharaja Durjoy
Kishore Debbarma on 11.10.1358 T.E. or 1948 A.D. in favour of
M/s. Hotel Khosh Mahal Limited, by which the land admeasuring 3
Kani 8 Gandas 3 Karas and 16½ Dhurs was given on lease for a
period of twenty years from 1349 T.E. to 1369 T.E. or 1939 A.D. to
1959 A.D. We shall subsequently refer to the Deed of Patta
(Exhibit-A) and also examine the challenge to the genuineness of
this document by the plaintiff before this Court. Relying on this
document, the written statement pleads that Schedule ‘A’ Property
is owned by M/s. Hotel Khosh Mahal Limited. By an agreement
dated 25.03.1953, Bidurkarta, as the Managing Director of M/s.
Hotel Khosh Mahal Limited, had leased out the business/property
Civil Appeal No. 878 of 2009 Page 9 of 27
to Maharani Chandratara Devi. This lease was terminated in August
1968 and thereafter by a fresh agreement, the business was leased
to defendant no. 2 - Prabha Ranjan Debbarma, son of Bidurkarta.
M/s. Indian Airlines Corporation Limited had started paying rent to
defendant no. 2. These lease deeds, including board resolutions,
etc. are not placed on record and proven. The fact that from 1968
onwards rent was paid by M/s Indian Airlines Corporation Limited
to defendant no. 2 is accepted by the plaintiff-appellant.
16. Thus, as per defendant nos. 1 to 7, the property in possession and
occupation of M/s. Hotel Khosh Mahal Limited is different and
distinct from the land, which is the subject matter of the Deed of
Patta (Exhibit-12), and which as per the Ekrarnama (Exhibit-5) is
owned by Maharani Chandratara Devi.
17. Defendant no. 8 had filed a separate written statement and had
accepted that he had acquired the land vide registered sale deed
dated 17.07.1985, (Exhibit-E), from the Managing Director of M/s.
Hotel Khosh Mahal Limited. Defendant no. 8 had thereupon
constructed a building to the notice and knowledge of the plaintiff.
The plaintiff had at that time neither raised an objection nor claimed
right, title or interest over the purchased land. Defendant no. 8 had
got his name mutated in the Survey and Settlement office vide
Civil Appeal No. 878 of 2009 Page 10 of 27
Khatian No. 30912, marked as Exhibit-F, dated 16.05.1989.
Defendant no. 8 has been in possession of the purchased property.
18. Defendants no. 9 to 11 had similarly submitted that the plaintiff had
no right, title, and interest over the Schedule ‘A’ property. They had
acquired the right, title and interest over the portions of the
Schedule ‘A’ property on the strength of the purchased/sale deed
executed by the Managing Director of M/s. Hotel Khosh Mahal
Limited. Further, they had got published the record of rights of the
land in their favour from the government. Defendant no.11 in his
additional written statement had claimed that he was not in
possession or owner by way of purchase of any land included in
Schedule ‘A’ of the plaint, or the schedule mentioned in the Will
(Exhibit-4). Defendant no. 11’s wife had purchased a small piece of
land from defendant no. 1, but this land does not fall within any plots
mentioned in Schedule ‘A’ of the plaint or the Will (Exhibit-4).
Defendants nos. 9 to 11 had questioned the genuineness of the Will
(Exhibit-4).
19. The aforesaid narration reveals that there are essentially two
interconnected issues which arise for consideration. The first
aspect relates to the demarcation of land given on lease vide the
Deed of Patta (Exhibit-12) and the Ekrarnama (Exhibit-5), on the
Civil Appeal No. 878 of 2009 Page 11 of 27
basis of which the title suit was filed by Smriti Debbarma as the
attorney and on behalf of Maharani Chandratara Devi. The second
issue relates to the burden of proof and whether the plaintiff has
succeeded in discharging the burden by establishing her title for a
declaratory decree of ownership and her right to possession of the
Schedule ‘A’ property.
20. The impugned judgment in our opinion has rightly examined the
aspect of demarcation and identification of Schedule ‘A’ property
viz. the identity of the land mentioned in the Deed of Patta (Exhibit-
12) and the Ekrarnama (Exhibit-5), and upon consideration of the
evidence and material on record held that the plaintiff has not been
able to establish her title and ownership over the Schedule ‘A’
property. We would refer to the reasoning given by the High Court
in this regard and add some reasons of our own.
21. First, the Deed of Patta ( Exhibit-12 ) dated 31.10.1951 and the
Ekrarnama (Exhibit-5) dated 25.06.1952, demarcate and refer to
the property as under:
“ Deed of Patta
xx xx xx
(Schedule boundaries)
Land measuring one kani five ganda two kara two kranta
ten dhur with tashkishi taluki title included in Touji No.
Civil Appeal No. 878 of 2009 Page 12 of 27
178 in my name having an annual revenue of Rs. 30/-
(Rupees thirty) within sheet no. 3, situated within Nutan
Haveli Town, Pg, Agartala
Bounded on the north by Mogra Road
West South
on the/and/by khas ‘pati’
on the east by the passage for going to Maharajganj
bazar
1
Within this boundary lies 246 X 90 ft land measuring
one kani five ganda two kara two kranta ten dhur,
appertaining to the portion marked (gha) of Dag no.
3412.”
xx xx xx
“ Ekrarnama
xx xx xx
(Schedule Property)
I, in the name of Sri Bikramendra Kishore Deb Barma
have been given ‘bandobasta’ with tashkhishi dar taluki
title at an annual revenue of Rs. 100/- (One Hundred
Rupees) of land measuring 1 kani 5 ganda 2 kara 2
kranta 10 dhur, in total having tashkhishi dar taluki title
no. 178 of Sadar Collectorate, in the name of Maharaj
Kumar Srilo Srijuto Durjoy Kishore Deb Barma, at an
annual deposit of Rs. 30, within Nutan Haveli Town sheet
no. 3 under Sub-Registry Agartala Pg. and P.S. Agartala.
Bounded on north Mogra Road
On the West and south by Khas Patit,
On the east by the passage of Maharajganj Bazar.
Within this boundary lies 1 kani 5 ganda 2 kara 2 kranta
1
10 dhur of land measuring 206 X 90 ft, in the portion
marked (kha) of dag no. 3412. Be it stated that value of
the property is Rs. 2500 (Rupees Two Thousand Five
Hundred only)
xx xx xx"
Civil Appeal No. 878 of 2009 Page 13 of 27
The aforesaid description does not refer to any constructed
building, and the building Hotel Khosh Mahal in particular. If the
Deed of Patta ( Exhibit-12 ) and the Ekrarnama (Exhibit-5) were
pertaining to the property where Hotel Khosh Mahal had been
constructed, it is normal and natural that this position would have
been specifically indicated and mentioned.
22. Secondly, the trial court had appointed a surveyor, who had given
his report marked Exhibit-I dated 20.01.1995 on the basis of a site
inspection done on 18.12.1994 in the presence of the parties. The
relevant portion of the report observes:
“
xx xx xx
The area of the identified land under C.S. Plot Nos. 13142,
13143, 13144, 13145, 26261 stands for 2 Kanies 8 ganda
3 karas 8 ½ dhurs only whereas the area of the land in the
said “Ekrarnama” was mentioned as 1 Kani 5 Gandas 2
Karas 2 Krantas only.
In the exhibit “A” of the Defdt. i.e. Regd. “Patta” created in
the year 1948 for the land measuring 3 Kanies 8 gandas 16
½ dhurs only under the then C.S. Plot No 3424/P, 2863/P,
2661/P, 3426, 2662/P, 2663 was described bounded by:-
North:- Fallow Khas land in the Southern side of ‘Smriti
Mandir’.
East:- Central Road.
South:- Front land of Homestead of Kumar Mahendra
Mohan Deb Barma.
West:- Adjacent North side land of Kumar Mahendra
Mohan Deb Barma.
There is the similarity of the North & East boundary of the
identified Suitland and/land described in the Exhibit “A” of
the Deffdt. The Ruin of “Smriti Mandir” is found after one or
Civil Appeal No. 878 of 2009 Page 14 of 27
two plots of the northern side of the identified land. The
Central Rd. is found in the Eastern side of the suit land i.e.
C.S. Plot No. 13142. The South and West boundaries as
described in the Exhibit “A’ of the Deffdt. and the present
boundaries of the suit land do not tally, there may be total
change of Record Right and shape of the land in the lapse
of so many years from 1948.
It may kindly be noted that neither the Defdt. nor the plttf.
were able to produce any Certified copy of the map of the
then C.S. Plot No. 3412 (P) described in the “Ekrarnama”
exhibit No.5 or then C.S. Plot Nos. 3424/P, 2868/P, 2661/P,
3426/P 2663 of the then mouja “Nutan Habeli”.
In absence of such Certified copy of the maps and
difference in described boundaries of land in “Ekrarnama”
created in the year 1952 it is not possible to point out that
the identified land by the plaintiff is the land covered by
“Ekrarnama” i.e. exhibit No.5 of the pltff.
However, there is almost similarity of area of land
described in “Ekrarnama” of the plaintiff and the land under
present C.S. Plot No. 13144 within the identified land by
the plttff. The area under C.S. Plot No. 13144 is 1 Kani 3
gandas only. Whereas the “Ekrarnama” was created for 1
Kani 5 gandas 2 Karas 2 Krantas only.
xx xx xx"
The trial court, in our opinion, has wrongly held that the
Survey Report (Exhibit - I) supports and accepts the case of the
plaintiff. The said finding was factually incorrect. The High Court
has rightly held that the Survey Report (Exhibit - I) is against the
plea and contention of the plaintiff. As per the Survey Report
(Exhibit-I) quoted above, the description of the Schedule ‘A’
property, where the building Hotel Khosh Mahal is located is
different from the description given in the schedule of the Deed of
Patta ( Exhibit-12 ) and Ekrarnama (Exhibit-5). The description of the
Civil Appeal No. 878 of 2009 Page 15 of 27
land and identification in the Patta (Exhibit - A) in favour of M/s.
Hotel Khush Mahal Limited is as under:
“ PATTA
(Executed on 11-10-1358 T.E.)
(= 1948 A.D.)
xx xx xx
This deed of PATTA of Taksishi Taluk within the
territory of independent Tripura, under Sadar Sub Registry
and Police-Station appertaining to Agartala Nutan Haveli
town, land measuring 3 Kani 8 Gandas 3 Karas 16 ½
Dhurs, measured in 8 Cubit length ‘Nal’ (Chain) = 12 x 10
(‘Nal’) is executed in favour of HOTEL KHOSH MAHAL
LIMITED on a Lease for 20 (Twenty) years from 1349 T.E.
to 1369 T.E.
xx xx xx
DESCRIPTION OF THE LAND
Land situated in Natun Haveli Town, bounded as follows:-
In the North- ‘Khas Land’ to the South of Smriti-Mandir.
In the East- Central Road
In the South- Front part of residence of Kumar Mahendra
Mohan Deb barma Bahadur
In the West- Northern Part of the said residence of Kumar
Mahendra Mohan Debbarma Bahadur
Within the said above boundary-
Plots:- 2846 (p), 2668 (p), 3423 (p), 3424 (p), 2863 (p),
2661 (p), 3426, 2662, 2663.
xx xx xx"
23. Thirdly, post the submission of the Survey Report (Exhibit-I), the
plaintiff in 1995 had amended the plaint and post the amendment,
had increased the measurements mentioned in Schedule ‘A’ from
1 Kani 5 Gandas 2 Karas, 3 Krantas and 10 Dhurs, to 2 Kanis 8
Gandas 3 Karas and 8½ Dhurs. Consequent to this amendment,
Civil Appeal No. 878 of 2009 Page 16 of 27
the figures now recorded in Schedule ‘A’ corresponded with the
measurements mentioned in the Deed of Patta (Exhibit-A), which
patta was executed in 1948 in favour of M/s. Hotel Khosh Mahal
Limited. The trial court in the impugned judgment has overlooked
this discrepancy by observing that the quantity of land was
immaterial as the basic dispute is whether the Schedule ‘A’ property
belonged to the plaintiff or to M/s. Hotel Khosh Mahal Limited. The
trial court, in support, observed that earlier land was measured by
eye estimation and the quantity of land in actual possession would
always be in excess of what is written in the instrument. Scientific
survey began in Tripura in 1960. It is difficult to accept this
reasoning in light of the fact that the Deed of Patta (Exhibit-A) refers
to the measurement and demarcation of land which is vastly
different from both point of view of location as well as the total
measurement of land mentioned in the Survey Report (Exhibit-I).
The assumption made by the trial court is fallacious and flawed, for
the documents in question, i.e. the Deed of Patta (Exhibit-A), is
earlier in point of time, whereas the Deed of Patta (Exhibit-12) and
Ekrarnama (Exhibit-5) were executed later on. The difference in
area recorded is substantial. No corrigendum to correct the area in
the Deed of Patta (Exhibit-12) and Ekrarnama (Exhibit-5) was made
at any point of time.
Civil Appeal No. 878 of 2009 Page 17 of 27
24. Fourthly, the power of attorney executed by Maharani Chandratara
Devi dated 16.10.1985 and relied upon by Smriti Debbarma had
equally identified the land in question, the land which belonged to
her, as under:
“ S C H E D U L E – ‘B’.
Building and land known as “Khosh Mahal” pertaining to
District- West Tripura, P.S. West Agartala in the town of
1 1
Agartala Dag No. 3412- Area- 206 X 90 – land measuring
1 (one) kani 5 (five) gandas 2 (two) karas, 2 (two) krantas
10 (ten) dhurs; erstwhile Hotel Khosh Mahal now M/s.
Indian Airlines Corporation, Agartala Office, Land recorded
in the name of late Bikramendra Kishore Deb Barma as
Benamdar of Maharani Chandratara Debi (Principal).”
No doubt, Schedule ‘B’ in the power of attorney statedly
executed by Maharani Chandratara Devi refers to ‘ Khosh Mahal’
but the area in the measurement given is vastly different. The area
and location mentioned in the power of attorney corresponds with
the area and location mentioned in the Deed of Patta (Exhibit-12)
and Ekrarnama (Exhibit-5). Thus, the contention that the area and
location were wrongly mentioned in the Deed of Patta (Exhibit-12)
and the Ekrarnama (Exhibit-5) is an afterthought, and the said stand
was taken after the discrepancies highlighted in the Survey Report
(Exhibit-I) had come on record.
25. Learned counsel appearing for the appellant-plaintiff had submitted
that the Deed of Patta (Exhibit-A) is a fabricated document. In
Civil Appeal No. 878 of 2009 Page 18 of 27
support, he referred to the contents of this document and, in
particular, our attention was drawn to the fact that the lease given
to M/s. Hotel Khosh Mahal Limited was for a period of twenty years
from 1349 T.E. to 1369 T.E. or 1939 A.D. to 1959 A.D. It was
highlighted that the Deed of Patta (Exhibit A) refers to dates 1351
T.E. or 1941 A.D. as the year when M/s. Hotel Khosh Mahal Limited
5
was established . We feel that the appellant-plaintiff should not be
permitted and allowed to raise this plea, as this contention was not
raised before the trial court or the High Court. The Deed of Patta
(Exhibit-A) is a registered document/instrument. The document
enjoys the presumption, being more than thirty years old, in terms
6 7
of Section 90 of the Indian Evidence Act, 1872 . Moreover, the
plaintiff had not impleaded M/s. Hotel Khosh Mahal Limited as a
party to the civil suit.
5
We have taken these dates from the translated copy of the Deed of Patta (Exhibit-A), assuming them
to be correct.
6
Section 90: Presumption as to documents thirty years old.- Where any document, purporting or
proved to be thirty years old, is produced from any custody which the Court in the particular case
considers proper, the Court may presume that the signature and every other part of such document,
which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in
the case of a document executed or attested, that it was duly executed and attested by the persons by
whom it purports to be executed and attested.
Explanation .- Documents are said to be in proper custody if they are in the place in which, and under
the care of the person with whom, they would naturally be; but no custody is improper if it is proved to
have had a legitimate origin, or if the circumstances of the particular case are such as to render such
an origin probable.
This explanation applies also to section 81.
7
For short, “Evidence Act”.
Civil Appeal No. 878 of 2009 Page 19 of 27
26. Counsel for the appellant-plaintiff has also drawn our attention to
the letter marked as Exhibit-C dated 11.04.1968 purportedly sent
by Maharaja Durjoy Kishore Debbarma as an attorney of Maharani
Chandratara Devi. It is highlighted that Maharaja Durjoy Kishore
Debbarma had expired in 1962, which has been accepted by
Maharani Chandratara Devi, who had deposed as PW-1 in her
cross-examination in the Civil Suit T.S. No. 95/72, marked as
Exhibit-13. The plaintiff could be correct that this letter is forged,
and we would not rely upon the same. However, it is also a matter
of record that M/s. Hotel Khosh Mahal Limited has been recorded
as the owner and possessor of the Schedule ‘A’ property in the
revenue records vide entry of 1974, marked as Exhibit-15. The
revenue entries were challenged by the plaintiff only in the year
1994 in Revenue Case No. 4 of 1994. As noted above, Maharani
Chandratara Devi had filed a Civil Suit T.S. No. 95/72 in 1972 after
having cancelled the power of attorney in favour of Bidurkarta for
cancellation of gift deeds executed by Bidurkarta. Given the fact
that she doubted the intent and acts of Bidurkarta, she would have
known and should have pressed her claim in respect of the
Schedule ‘A’ property, more so when she was admittedly not being
Civil Appeal No. 878 of 2009 Page 20 of 27
paid any rent since 1968. The gap of 18 years in the filing of the
8
present civil suit has not been explained by the appellant-plaintiff .
27. The plaintiff has relied upon the deposition of Kishalaya Kishore
Debbarma, son of Bidurkarta, who had deposed as DW-1, and
accepted that rent received from M/s. Indian Airlines Corporation
Limited till 1968 was paid to Maharani Chandratara Devi. This is
correct and accepted by defendant nos. 1 to 7. These defendants
have stated that in 1953 the Schedule ‘A’ property was given on
lease by M/s. Hotel Khosh Mahal Limited to Maharani Chandratara
Devi, which lease was extended till 1968. The defendants have not
proved this fact by any documents or lease deed to the said effect.
The defendants have also not placed on record the resolutions, if
any, passed by the Board of Directors of M/s. Hotel Khosh Mahal
Limited. The present status of the company is rather ambiguous
and unknown. This would reveal chinks in the defence of the
defendants, albeit , as elucidated below, the plaintiff cannot succeed
in the present suit on the basis of the weakness of the defendants’
case. We would first refer to the plaint, then the evidence on record,
which has been partly noticed above, and the legal position on
burden of proof.
8
Earlier, but post stoppage of payment of rent in 1968, Maharani Chandratara Devi had on 29.10.1969
executed a power of attorney in favour of Bidurkarta.
Civil Appeal No. 878 of 2009 Page 21 of 27
28. The plaintiff had taken a contradictory stand. In the plaint it is
pleaded that the M/s. Hotel Khosh Mahal Limited was established
by the management after taking the land and building of Schedule
‘A’ property on lease from Maharani Chandratara Devi, virtually
accepting that M/s. Hotel Khosh Mahal Limited were in possession.
At the same time, the plaintiff had pleaded that M/s. Hotel Khosh
Mahal Limited was established in 1941, and in 1951 Chandratara
Devi had acquired lease hold right in the Schedule ‘A’ property from
Maharaja Durjoy Kishore Debbarma vide Deed of Patta (Exhibit-
12). The pleading by the plaintiff is acceptance of the fact that when
M/s. Hotel Khosh Mahal Limited was established in 1941, and
subsequently Schedule ‘A’ property got vested with it. In 1941, the
plaintiff was clearly not the owner or in possession of the Schedule
‘A’ property/Khosh Mahal. Construction of the hotel building on the
land, it is apparent, was undertaken and done by M/s. Hotel Khosh
Mahal Limited. The plaintiff has made no such claim.
29. As per the plaint, the Schedule ‘A’ property was given on lease by
Maharani Chandratara Devi to M/s. Hotel Khosh Mahal Limited.
The plaintiff, however, has not placed any document on record in
support of this claim that Maharani Chandratara Devi had given
Schedule ‘A’ property on lease to M/s. Hotel Khosh Mahal Limited.
Civil Appeal No. 878 of 2009 Page 22 of 27
Equally, defendant nos. 1 to 7 have not been able to establish and
show that M/s. Hotel Khosh Mahal Limited had given the property
on lease to Maharani Chandratara Devi. Be that as it may, we would
accept as pleaded by the plaintiff that M/s. Hotel Khosh Mahal
Limited was in possession of Schedule ‘A’ property, though the
nature and right to possession is disputed. Further, the plaint
accepts that after 1968 M/s. Indian Airlines Corporation Limited had
paid the rent to defendant no. 2 – Prabha Ranjan Debbarma till M/s.
Indian Airlines Corporation Limited had vacated the property on
30.06.1986. The plaintiff’s claim that thereupon she had taken
possession of Schedule ‘A’ property through her workmen and
agents and started a guest house in the name and style of ‘M/s.
Star Guest House’ is unsubstantiated, or rather implausible. Not
only there is no document or evidence to support the assertion, the
possession would normally be given to the landlord to whom rent is
being paid. Findings recorded supra support the case of the
defendants. Further, it is clear that defendant no. 8 vide the
registered sale deed (Exhibit-E) dated 17.07.1985, had come in
actual physical possession of a portion of the Schedule ‘A’ property.
The sale deed was executed on behalf of M/s. Hotel Khosh Mahal
Limited. Similarly, defendant nos. 9 to 11 have stated that they have
purchased portions of the Schedule ‘A’ land on the basis of
Civil Appeal No. 878 of 2009 Page 23 of 27
purchase/sale deeds executed in their favour by M/s. Hotel Khosh
Mahal Limited. In this factual background, we would accept the
claim of the defendants that on the date of filing of the suit the
plaintiff was not in constructive or actual physical possession of the
Schedule ‘A’ property.
30. In the above factual background, for the plaintiff to succeed, she
has to establish that she has a legal title to the Schedule ‘A’
property, and consequently, is entitled to a decree of possession.
The defendants cannot be dispossessed unless the plaintiff has
established a better title and rights over the Schedule ‘A’ property.
A person in possession of land in the assumed character as the
owner, and exercising peaceably the ordinary rights of ownership,
9
has a legal right against the entire world except the rightful owner.
A decree of possession cannot be passed in favour of the plaintiff
on the ground that defendant nos. 1 to 12 have not been able to
fully establish their right, title and interest in the Schedule ‘A’
property. The defendants, being in possession, would be entitled to
protect and save their possession, unless the person who seeks to
9
See Poona Ram v. Moti Ram (Dead) through Legal Representatives and Others (2019) 11 SCC 309
and Nair Service Society Limited v. Rev. Father K.C. Alexander and Others, AIR 1968, SC 1165.
Civil Appeal No. 878 of 2009 Page 24 of 27
dispossess them has a better legal right in the form of ownership or
entitlement to possession.
10
31. The burden of proof to establish a title in the present case lies
upon the plaintiff as this burden lies on the party who asserts the
existence of a particular state of things on the basis of which she
11 12
claims relief . This is mandated in terms of Section 101 of the
Evidence Act, which states that burden on proving the fact rests
with party who substantially asserts in the affirmative and not on the
party which is denying it. This rule may not be universal and has
13
exceptions , but in the factual background of the present case, the
14
general principle is applicable. In terms of Section 102 of the
Evidence Act, if both parties fail to adduce evidence, the suit must
15
fail. Onus of proof, no doubt shifts and the shifting is a continuous
process in the evaluation of evidence, but this happens when in a
suit for title and possession, the plaintiff has been able to create a
10
See Paragraph 19 in Anil Rishi v. Gurbaksh Singh , (2006) 5 SCC 558 where the expression– ‘burden
of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support
of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all
counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others .
11
See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC
136.
12
Section 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right
or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on
that person.
13
See Sections 103, 104 and 105 of the Evidence Act.
14
Section 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies
on that person who would fail if no evidence at all were given on either side.
15
See Anil Rishi v. Gurbaksh Singh , (2006) 5 SCC 558.
Civil Appeal No. 878 of 2009 Page 25 of 27
high degree of probability to shift the onus on the defendant. In the
absence of such evidence, the burden of proof lies on the plaintiff
16
and can be discharged only when he is able to prove title. The
weakness of the defence cannot be a justification to decree the
17
suit. The plaintiff could have succeeded in respect of the Schedule
‘A’ property if she had discharged the burden to prove the title to
the Schedule ‘A’ property which squarely falls on her. This would
18
be the true effect of Sections 101 and 102 of the Evidence Act.
Therefore, it follows that the plaintiff should have satisfied and
discharged the burden under the provisions of the Evidence Act,
failing which the suit would be liable to be dismissed. Thus, the
impugned judgment by the High Court had rightly allowed the
appeal and set aside the judgment and decree of the trial court. We,
therefore, uphold the findings of the High Court that the suit should
be dismissed. We clarify that we have not interfered or set aside
any observations of the High Court in re the Tripura Land Revenue
and Land Reforms Act, or defendants’ claim etc. Notably, M/s. Hotel
Khosh Mahal Limited is not a party to the present proceedings.
16
See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003)
8 SCC 752.
17
See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014)
2 SCC 269 .
18
See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through
LRs. And Others , (2013) 15 SCC 161.
Civil Appeal No. 878 of 2009 Page 26 of 27
32. In view of the aforesaid discussion and legal position, the present
appeal must be dismissed. We order accordingly. In the facts of the
case, there will be no order as to costs.
......................................J.
(SANJIV KHANNA)
…...................................J.
(J.K. MAHESHWARI)
NEW DELHI;
JANAURY 04, 2023.
Civil Appeal No. 878 of 2009 Page 27 of 27