Civil Appeal No. 878 of 2009 Page 1 of 27

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

transfer/conveyance for and on behalf of the plaintiff made by late

Digitally signed by

SWETA BALODI

Date: 2023.01.05

17:25:36 IST

Reason:

Signature Not Verified 2023 INSC 8

Civil Appeal No. 878 of 2009 Page 2 of 27

Bikramendra Kishore Debbarma

1

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 3 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

defendants before the trial court

2

. 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 4 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 5 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 6 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

limited company, on 24.01.1351 Tripura Era

3

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 7 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

Bidurkarta transferring her 1/3

rd

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.

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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

House’. However, as the suit was dismissed in default

4

, 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 9 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 10 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 11 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 12 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.

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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

Within this boundary lies 246

1

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

10 dhur of land measuring 206

1

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 14 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 15 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 16 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 17 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 18 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

Agartala Dag No. 3412- Area- 206

1

X 90

1

– 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 19 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

was established

5. 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

of Section 90

6

of the Indian Evidence Act, 1872

7

. 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 20 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 21 of 27

paid any rent since 1968. The gap of 18 years in the filing of the

present civil suit has not been explained by the appellant-plaintiff

8.

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 22 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 23 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 24 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,

has a legal right against the entire world except the rightful owner.

9

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 25 of 27

dispossess them has a better legal right in the form of ownership or

entitlement to possession.

31. The burden of proof

10

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

claims relief

11

. This is mandated in terms of Section 101

12

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

exceptions

13, but in the factual background of the present case, the

general principle is applicable. In terms of Section 102

14

of the

Evidence Act, if both parties fail to adduce evidence, the suit must

fail.

15

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 Anoth er, 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 26 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

and can be discharged only when he is able to prove title.

16

The

weakness of the defence cannot be a justification to decree the

suit.

17

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

be the true effect of Sections 101 and 102 of the Evidence Act.

18

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 27 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.