HIGH COURT OF TRIPURA

AGARTALA

RSA No.34 of 2023

1. (a) Sri Nandadulal Chakraborty ,

son of Late Shibesh Chakraborty,

Jail Road, Banamalipur, P.S. East Agartala,

District-West Tripura

(b) Smt. Gayatri Chakraborty,

daughter of Late Shibesh Chakraborty,

Jail Road, Banamalipur, P.S. East Agartala,

District-West Tripura

(legal heirs of deceased defendant Lt. Shibesh Chakraborty

to be substituted).

2. Smt. Pranati Ganguly,

daughter of Late Brajesh Chakraborty

wife of Sri Salil Ganguly,

resident of Pratapaditya Road, Noapara, Barasat,

P.S. Barasat, District-North 24 parganas, Kolkata-700125

---- Appellant(s)

Versus

1. (a) Smti. Sakti Chakraborty,

wife of Late Gouri Sankar Chakraborty

(b) Sri Suman Chakraborty,

son of Late Gouri Sankar Chakraborty,

both are resident of BK-121, Sector-II,

Bidhannagar, District-North 24 Parganas,

West Bengal-700091

(both are the legal heirs of Gourishankar Chakraborty)

2. (a) Sri Tapan Kr. Chakraborty,

son of late Harigopal Chakraborty

(b) Sri Tarun Chakraborty,

son of Late Harigopal Chakraborty

(c) Sri Tridib Chakraborty,

son of Late Harigopal Chakraborty

(d) Smt. Dipali Banerjee,

wife of Sri Naru Gopal Banerjee

(e) Smt. Anjali Laskar,

wife of Sri Mrityunjoy Chatterjee

all are resident of 49/E, Ramkrishna Sarani, Kolkata-700060

***As per Hon‟ble Court order dated 08.12.2023 passed in I.A.02/2023

name of Respondent No.2(f) has been incorporated in the following

way-

Page 2 of 18

***2(f) Smt. Minati Chatterjee,

wife of Sri Mrityunjoy Chatterjee,

resident of 49/E, Ramkrishna Sarani,

Kolkata-700060

(g) Sri Shobhan Chakraborty,

son of Late Narayan Chakraborty

& Late Rekha Chakraborty

of Flat No.32/41, Vijaya Heritage,

6

th

phase, Malaigiri, P.S. Kadma, Jamshedpur-831005

(h) Smt. Ruma Chakraborty,

wife of Sri Atanu Chakraborty,

daughter of Late Narayan Chakraborty

& Late Rekha Chakraborty of Flat No.944,

Pareshnath Apartment, Vijaya Heritage,

3

rd

Phase, Uliya, P.S. Kadma,

Jamshedpur-831005

(Respondents No.2(a) to 2(h) all are legal heirs of Snehalata

Chakraborty).

3. (a) Smt. Gita Rani Chakraborty,

wife of Late Ramgopal Chakraborty,

daughter of Late Surendra Mohan Chakraborty,

resident of P-54, Baisnab Ghata, Patuli, Kolkata-700094

(b) Sri Saktimoy Chakraborty,

son of Late Surendra Mohan Chakraborty,

resident of 48, Milanpark, Garia, Kolkata-700084

(c) Sri Rashamoy Chakraborty,

son of Late Surendra Mohan Chakraborty,

resident of Block-1/110, Baishnabghata,

Kolkata-700094

(d) Smt. Tamali Chakraborty,

wife of Late Chinmoy Chakraborty

(e) Smt. Gargee Chakravarti,

wife of Sri Sukanta Ghosh Dostidar,

daughter of Late Chinmoy Chakraborty

(f) Smt. Shruti Chakraborty,

daughter of Late Chinmoy Chakraborty,

resident of Respondents No.2(d) to 2(f),

G/1, 39 Baghajatin, Kolkata-700086

(Respondents No.3(a) to 3(f) all are legal heirs of

Asha Rani Chakraborty).

4. (a) Sri Panna Lal Chakraborty,

son of Late Hara Lal Chakraborty,

Page 3 of 18

resident of 2/101, Pashchim Putiary,

Kolkata-700041

(b) Sri Jaharlal Chakraborty,

son of Late Hara Lal Chakraborty,

resident of B-59/1, Burdge Town,

Medinipur, Kolkata-721101

(c) Smt. Chhanda Chakraborty,

wife of Sri Samarjit Chakraborty,

daughter of Late Hara Lal Chakraborty,

resident of “Sangam Garden”, Tantigeria,

Paschim Medinipur-721102

5. (I) Smt. Swapna Chakraborty,

wife of deceased Late Pranabesh Chakraborty,

care of Smt. Tultul Chakraborty, Arkaneer,

Sekerkote, P.S. Amtali, Pin-799130,

District-Tripura West.

(II) Smt. Bulbul Chakraborty,(elder daughter),

care of Sri Dulal Chakraborty, Krishnayan Apartment,

Krishnanagar, Agartala, P.S. West Agartala,

District- Tripura West, Pin-799001

(III) Smt. Tultul Chakraborty,(younger daughter),

Arkaneer, Sekerkote, Bikramnagar, P.S. Amtali,

Pin-799130, District-Tripura West

all are legal heirs of Late Pranabesh Chakraborty to be

substituted.

----Respondent(s)

***As per the order dated 27.08.2024 passed in I.A. 03/2023,

necessary amendment has been made as follows :

***6(a) Shri Sanjoy Banerjee,

care of Late Haralal Chakraborty

of Debch ya Colony, Sepoy Bazar,

P.O. & District-Paschim Medinipur,

Pin-721101

(b) Sri Amarnath Banerjee,

son of Late Beni Lal Banerjee &

Late Minati Banerjee,

resident of Saktinagar, Anjanpur,

District-Nadia, State-West Bengal

(c) Smt. Shila Chatterjee,

Page 4 of 18

wife of Sri Dhiren Chatterjee,

daughter of Late Hara Lal Chakraborty

of 1038/N Mahatma Gandhi Road,

P.O. Haridevpur, Kolkata-700082

(legal heirs of Laxmi priya Chakraborty)

(d) Sri Taraknath Banerjee,

son of Late Beni Lal Banerjee

& Late Minati Banerjee

(e) Sri Loknath Banerjee,

son of Late Beni Lal Banerjee

& Late Minati Banerjee

all are residents of Saktinagar,

Anjanpur, District-Nadia, West Bengal

(No.6(a) to 6(e) all are the legal heirs

of Laxmi Priya Chakraborty)

----Proforma-Respondent(s)

For Appellant(s) : Mr. D. Bhattacharya, Sr. Adv.

Mr. S. Datta, Adv.

For Respondent(s) : Mr. A. Sengupta, Adv.

Date of Hearing : 30.11.2024

Date of Judgment

& Order : 09.12.2024

Whether fit for reporting : YES

HON‟BLE MR. JUSTICE BISWAJIT PALIT

Judgment & Order

This appeal under Section 100 of CPC is preferred challenging

the judgment and decree dated 27.07.2023 delivered by Learned District

Judge, West Tripura, Agartala, Court No.1 in connection with Case

No.T.A.62 of 2019. By the said judgment dated 27.07.2023 Learned First

Appellate Court has affirmed the judgment dated 30.09.2019 and decree

dated 11.10.2019 delivered by Learned Civil Judge, Senior Division, Court

No.1, Agartala, West Tripura in connection with Case No.T.S.(Partition) 03

of 2017.

[2] Heard Learned Senior counsel, Mr. D. Bhattacharya assisted by

Learned Counsel, Mr. S. Datta for the appellant-defendants and also heard

Learned counsel, Mr. A. Sengupta for the contesting respondent-plaintiffs.

Page 5 of 18

[3] Before proceeding with the merit of the appeal, let us discuss

about the subject matter of the dispute amongst the rival parties. The

respondent-plaintiffs filed one suit for partition of their ancestral homestead

land in the Court of Learned Civil Judge, Senior Division, Court No.1, West

Tripura, Agartala seeking partition which was registered as T.S.(P)03 of

2017. In the said suit, the respondent-plaintiffs took the plea that the suit

land was originally belonged to one Debendra Kumar Chakraborty, the

predecessor-in-interest of the parties in dispute of the suit. On 03.07.1989,

the original owner Debendra Kumar Chakraborty died intestate leaving

behind his five sons and three daughters. Out of five sons, Brajesh

Chakraborty, one of the son of the original owner also died leaving behind

the appellant, Smt. Pranati Ganguly as his only legal heir. Another son

namely Samaresh Chakraborty died on 21.12.2004 leaving behind plaintiff,

Smt. Ashima Chakraborty as his successor. Gouri Shankar Chakraborty,

another son of Late Debendra Kumar Chakraborty died on 19.01.2003

leaving behind plaintiff Nos.2(a) and 2(b) as his successor. One of the

daughters of original owner Snehalata Chakraborty had expired on

31.07.2012 and she was succeeded by the plaintiff Nos. 3(a) to 3(h) in the

original suit. Another daughter of the original owner namely Asha Rani

Chakraborty was expired on 30.07.2011 and she was succeeded by the

plaintiff Nos. 4(a) to 4(f) in the original suit. Laxmi Priya Chakraborty, the

daughter of Debendra Kumar Chakraborty also expired leaving behind the

plaintiff Nos.5(a) to 5(e) as her legal heirs. The plaintiff No.6 namely

Pranabesh Chakraborty and the defendant No.1, Shibesh Chakraborty are

the remaining two living sons of the original owner Late Debendra Kumar

Chakraborty and accordingly, the plaintiff prayed for a decree of partition of

the suit land entitling the leaving sons and the legal survivors of the

deceased sons and daughters of Debendra Kumar Chakraborty fo r 1/8

th

Page 6 of 18

share each on the suit property. However, the defendants in the original

suit in their counter claim pleaded that during the life time of the original

owner of the suit property Debendra Kumar Chakraborty, the claim of the

plaintiff No.6 and husband of the plaintiff Nos. 1 and 2 including other

married daughters of Late Debendra Kumar Chakraborty were all denied the

suit property by the original owner himself and after the death of Debendra

Kumar Chakraborty in the month of December, 1990 the plaintiff No.6 and

husband of plaintiff Nos.1 and 2 came to the defendant-appellant No.1 and

to the father of the defendant-appellant No.2 with claim over the suit

property and demanded money against their respective share since they

were not physical possession over the suit property before 1990 and after

03.07.1989. However, the demand of the parities for money against their

respective shares of the suit property was rightly turned down by the

defendant No.1 and the father of the defendant No.2 on the ground that

during the old age of their parents they never looked after their father

Debendra Kumar Chakraborty and his wife for which the orig inal owner of

the suit property did never allow the defendant and other so called co -

sharers to stay in the joint possession in the suit property and as such, they

became „ousters‟ from the suit property since the death of Debendra Kumar

Chakraborty. Thereafter, no demand for money or partition of the suit

property was made by the plaintiff. It was also submitted that in the

counter claim in such a situation none of the legal heirs of Late Debendra

Kumar Chakraborty except the defendant could be considered to be joint

owners in possession over the suit property and accordingly, their right to

suit property by way of inheritance was extinguished on and from

03.07.1989 and at the same time, the defendants have acquired their

absolute right, title and interest as well as possessory right over the suit

property by way of adverse possession against the plaintiff.

Page 7 of 18

[4] On the basis of the pleadings of the parties, Learned Trial Court

below framed the following issues:

“i) Whether the suit of the plaintiffs is maintainable in its

present form and nature ?

(ii) Whether the plaintiffs have caus e of action for filing the

suit?

(iii) Whether the suit property is the HUF property of the

parties, if so, what will be the quantum of share of the

parties?

(iv) Whether the plaintiffs are entitled to get the decree as

prayed for?

(v) What other relief/reliefs the parties are entitled to?”

[5] To substantiate the issues, both the parties have adduced both

oral/documentary evidence on record before the Learned Trial Court the

details of the list of witnesses of the original plaintiff and their exhibits are

mentioned below along with the defendants in the original suit :

“APPENDIX

(A) Plaintiff‟s Witnesses :-

P.W.-1 Pannalal Chakraborty

(B) Plaintiffs Exhibits :-

i. The original Power of Attorney No.73 dated 07.08.2017

constituting plaintiff No.5 (a) Pannalal Chakraborty as their

attorney marked Exbt.1.

ii. The certified copy of Khatian No.319 marked as Exbt.2.

(C) Defendants‟ Witnesses :-

D.W.-1 Pranati Ganguly

D.W.-2 Biswanath Chakraborty

D.W.-3 Narayan Ch. Paul

D.W.-4 Sri Sanjoy Banerjee”

(D)Defendants‟ Exhibits :-

Nil.

[6] After conclusion of trial, Learned Trial Court below vide

judgment dated 30.09.2019 and decree dated 11.10.2019 as aforesaid

decreed the suit. For the sake of convenience, I would like to refer herein

below the operative portion of the judgment dated 30.09.2019 delivered by

Learned Civil Judge, Senior Division, West Tripura, Agartala which runs as

follows :

“In the result, the suit of the plaintiffs is decreed opining that

the suit land being capable of being partitioned amongst the

parties to the extent that plaintiff no.1,6 and defendant Nos.1

and 2 each will get 1/8th share each; plaintiff numbers 2(a)

and 2(b) will jointly get 1/8th share; plaintiff numbers 3(a)

and 3(h) will jointly get 1/8th share; plaintiff numbers 4(a)

and 4(f) will jointly get 1/8 share; and plaintiff numbers 5(a)

and 5(e) and defendant nos.3(a) to 3(c) will jointly get 1/8th

share.

Page 8 of 18

The parties are at liberty to cause partition of suit land by

metes and bounds amicably and in failure to do so they may

approach the Court for drawing up of final decree.

The suit is disposed of on contest with cost.”

[7] Challenging that judgment, the defendants of the original suit

preferred first appeal before the Court of District Judge, West Tripura,

Agartala which was numbered as T.A.62 of 2019 and the Learned District

Judge after hearing both the contesting parties vide judgment and decree

dated 27.07.2023 was pleased to affirm the judgment and decree delivered

by the Learned Trial Court. For the sake of convenience, I would like to

refer herein below the operative portion of the judgment dated 27.07.2023

delivered by Learned First Appellate Court which runs as follows:

“In view of the aforesaid discussion and findings, the appeal

preferred by the defendant -appellants U/S 96 of the Code of

Civil Procedure challenging the judgment and decree passed

by the Ld. Civil Judge (Sr. Division), Court No.1, West Tripura,

Agartala on 30.09.2019 in T.S.(P) 03 of 2017 is hereby

dismissed being devoid of any merit.

Accordingly, the judgment date d 30.09.2019 and the

decree dated 11.10.2019 passed by Ld. Civil Judge, Senior

Division, Court No.1, West Tripura, Agartala in T.S.(P)03 of

2017 are hereby up held.

This appeal is accordingly disposed of on contest but

without any cost.”

[8] At the time of admission of the appeal, the following substantial

question of law was formulated by this High Court by order dated

08.12.2023 which is as follows:

“Whether the judgment of First Appellate Court is perverse at

law for ignoring the fact of non -compliance of provision of

Order 8, Rule 6 -A CPC and whether that has caused

miscarriage of justice.”

[9] At the time of hearing of argument, Mr. D. Bhattacharya,

Learned senior counsel assisted by Learned Counsel, Mr. S. Datta appearing

on behalf of the defendant-appellants first of all drawn the attention of this

Court that the judgment and decree of the Learned Trial Court suffers from

infirmities because the Learned Trial Court below failed to appreciate the

plea of adverse possession raised by the present appellants before the

Learned Trial Court and ultimately decreed the suit and the judgment of the

Learned First Appellate Court is nothing but a replica of the said judgment

Page 9 of 18

of the Learned Trial Court. Learned senior counsel further submitted that

from the evidence of the contesting defendant appellants it is crystal clear

that the defendants have adduced their evidence to substantiate the plea of

their defence regarding right of „adverse possession‟ but the Learned Trial

Court failed to appreciate the evidence on record and came to a wrong

observation and ultimately decreed the suit in favour of the respondent

plaintiffs. He also in course of hearing of argument referred the evidence of

the plaintiffs both in their examination-in-chief and cross-examination and

also referred the evidence of the defendant appellants and submitted that

both the Courts below have failed to appreciate the evidence on record

properly and came to an erroneous finding for which the interference of the

Court is required and urged for setting aside both the judgment s and

decree of the Learned Trial Court and Learned First Appellate Court by

allowing this appeal.

[10] Learned counsel for the appellants further referred another IA

and drawn the attention of this Court that at the instance of the attorney

Pannalal Chakraborty, respondent No.4(a), who was representing the

appeal on behalf of the plaintiffs, the present respondents could succeed in

the appeal and prayed for allowing the application filed under Order 41 Rule

27 of CPC at the time of delivery of judgment of this appeal.

[11] Learned senior counsel during the course of his submission

referred the citation of Hon‟ble Supreme Court of India in Vidya Devi alias

Vidya Vati (Dead) by Lrs. versus Prem Prakash and Others reported

in (1995) 4 SCC 496 wherein in para No.28 the Hon‟ble Apex Court

observed as under :

"28. Ouster" does not mean actual driving out of the co -

sharer from the property. It will, however, not be complete

unless it is coupled with all other ingredients required to

constitute adverse possession. Broadly speaking, three

elements are necessary for establishing the plea of ouster in

the case of co -owner. They are ( i) declaration of hostile

animus (ii) long and uninterrupted possession of the person

Page 10 of 18

pleading ouster and (iii) exercise of right of exclusive

ownership openly and to the knowledge of other co -owner.

Thus, a co-owner, can under law, claim title by adverse

possession against another co -owner who can, of course, file

appropriate suit including suit for joint possession within time

prescribed by law.”

Referring the same, Learned senior counsel drawn the attention

of this Court to apply the aforesaid principle of law laid down by the Hon‟ble

Apex Court in deciding this appeal.

[12] On the other hand, Mr. A. Sengupta, Learned counsel

appearing on behalf of the respondent plaintiffs first of all drawn the

attention of this Court that this appeal is not maintainable because both the

Learned Trial Court and the Learned First Appellate Court rightly and

reasonably after appreciating the evidence on record delivered the

judgment and decree for which there is no scope to interfere with the

judgment delivered by Learned First Appellate Court. Further, Learned

counsel for the respondent plaintiffs submitted that plea as taken by the

appellant defendants in this appeal is not sustainable in the eye of law

because the present appellants before the Learned Trial Court have failed to

establish their plea of adverse possession over the suit property, so,

Learned Trial Court rightly after considering the oral/documentary evidence

on record decreed the suit in favour of the respondent plaintiffs and the

Learned First Appellate Court also after hearing argument of both the sides

was pleased to uphold the judgment and decree delivered by Learned Trial

Court and urged for dismissal of this present appeal.

[13] In support of his contention, Learned counsel for the

respondent plaintiffs drawn the attention of this Court referring one citation

of this High Court in Kajal Kanti Deb versus Gitesh Kumar

Bhattacharjee and Others reported in (2014) 2 TLR 40 wherein in para

Nos.6.3(ii), 6.4 & 12.1 this High Court observed as under :

“6.3…….

(ii) The High Court should be satisfied that the case involves a

substantial question of law, and not a mere question of law

having a material bearing on the decision of the case(that is, a

Page 11 of 18

question, answer to which affects the rights of parties to the

Suit) will be a substantial question of law, if it is not covered

by any specific provision of law or settled legal principle

emerging from binding precedents, but the Court below has

decided the matter, either ignoring or acting contrary to such

legal principle. In the second type of case, the substantial

question of law arises not because the law is still debatable

but because of decision rendered on a material question,

violated the settled position of law.

6.4. Having taken note of the law settled by the apex Court, it

may be concluded that a concurrent finding of fact if based on

pleadings and evidence cannot be interfered in second appeal

and cannot be substituted by a finding of the High Court

contrary to what has been arrived by the lower Court s. Any

question of law which affects the final decision in a case is a

substantial question of law as between the parties and that

has to be clearly formulated. The present suit was instituted

for declaration and consequential relief and it was not a suit

instituted under the provisions of Easements Act, so, the

substantial question No.3 is totally out of the context.

However, in the course of hearing since it is strenuously

argued on behalf of the appellant that the evidence on record

has not been looked i nto and not appreciated, the following

substantial question of law has been formulated for hearing

by order dated 16.04.2014:

“Whether the Judgment & Decree passed by the

Trial Court and affirmed by the Appellate Court

suffer from perversity?”

12.1. It is a settled law that a concurrent finding of fact based

on the pleadings and evidence on record should not be

disturbed even if it is found to be erroneous on some point or

otherwise.”

Referring the same, Learned counsel for the respondent

plaintiffs drawn the attention of this Court that here in this case, the

appellants have failed to make out any substantial question of law in their

favour and as such, this present appeal is not maintainable and the same is

liable to be dismissed with costs.

[14] Learned counsel for the respondent plaintiffs further referred

another citation of the Hon‟ble Supreme Court of India in Sakharam since

deceased through L.RS & Anr. versus Kishanrao reported in 2022 SCC

OnLine SC 2035 wherein in para Nos.8 & 9 Hon‟ble t he Apex Court

observed as under :

“8. The above Rule makes it clear that where there are more

defendants than one and any of them dies and where the right

to sue survives against the surviving defendant, the suit shall

proceed against the surviving defenda nt. Order XXII Rule 11

states that in the application of Order XXII to appeals, the

word “plaintiff” shall be held to include an appellant, the word

“defendant” a respondent, and the word “suit” an appeal.

9. Therefore, if the word “defendant” appearing i n Order XXII

Rule 2 is replaced by the word “respondent”, it will be clear

Page 12 of 18

that the second appeal did not abate and the right to sue

survives against the surviving respondent.”

[15] He further referred another citation of this High Court in Kirpa

Ram (deceased) through Legal representatives and Ors. Versus

Surendra Deo Gaur and Ors. reported in (2021) 1 TLR 136(SC)

wherein in para No.15 this High Court has observed as under :

“15. It has been argued that the First Appellate Court had

ordered that the que stion of jurisdiction of Civil Court would

be decided first, however the appeal was decided without

dealing with the said issue. It is, thus, said to have caused

serious prejudice to the rights of the appellants. Similarly, the

application under Order XLI Rule 27 of the Code was not

decided which was again prejudicial to their rights.”

Referring the aforesaid citations, Learned counsel for the

respondent plaintiffs further submitted that the application filed by the

appellants under Order 41 Rule 27 is not maintainable in the eye of law and

in view of the principles of law as aforesaid and the same is liable to be

dismissed with costs.

[16] Finally, Learned counsel for the respondent plaintiffs submitted

that since there is no substantial question of law in this appeal, so, the

same is liable to be dismissed.

[17] I have heard detailed argument of both the sides and gone

through the judgments of the Learned Courts below i.e. the Learned Trial

Court as well as the Learned First Appellate Court. In course of hearing of

argument as already stated, Learned counsel for the appellants drawn the

attention of the Court para-16 of the written statement filed by the

appellant defendants before the Learned Trial Court and submitted that the

appellant defendants took the plea of adverse possession over the suit

property but the Learned Trial Court in the connected counter claim did not

consider the same and in the judgment impugned herein decided that

matter. He also referred the evidence on record of the defendant appellants

before the Learned Trial Court and also the manner of cross-examination by

Page 13 of 18

the respondent plaintiffs to the witnesses and finally submitted that the

judgment of the First Appellate Court was nothing but the reproduction of

the judgment of the Trial Court and there is substantial question of law in

this appeal which the Learned First Appellate Court failed to decide at the

time of delivering the judgment and decree.

[18] Per contra, Learned counsel for the respondent-plaintiffs fairly

submitted that both the Courts below have gave concurrent findings on the

subject matters in issue and the Learned Trial Court after discussing the

oral/documentary evidence on record in detail delivered the judgment

covering all the issues and decided and determined that the appellant

defendant Nos.1 and 2 have failed to perfected their title over the suit

premise by way of adverse possession successfully „ousting‟ the

respondent-plaintiffs from their claim since 1990 and there was no infirmity

in the judgment of the Learned Trial Court for which the Learned First

Appellate Court was pleased to confirm the judgment and decree of the

Learned Trial Court.

[19] Here in the case at hand the suit land is admittedly the

ancestral property of the parties under dispute and as such, there was least

scope on the part of either of the parties to claim for „adverse possession‟

over the same. It is the settled position of law that no adverse possession

can be claimed among the members of one family for want of any animus

among them over the disputed property. It is also the settled position of

law that as per limitation act, the limitation period to file a „partition suit‟ is

prescribed for twelve years. Article 65 of the Limitation Act provides that

the period of twelve years starts/commences when there is a notification of

the adverse claim to the plaintiffs or the co-owners in public domain. In this

case, the appellant-defendants did not rest their claim over the suit land

against the respondent-plaintiffs by serving any notice or instituting of any

Page 14 of 18

separate suit for adverse possession before filing of the original suit bearing

No.T.S.(Partition)03 of 2017 by the respondent-plaintiffs. The defendant-

appellants stood up their case for adverse possession for the first time by

filing the written statement in Case No.T.S.(Partition) 03 of 2017 and on

the basis of their counter-claim, separate T.S.(CC) 03 of 2017 was

registered by Learned Trial Court. The present appellants contested the

partition suit on the plea of their adverse possession over the suit land and

accordingly, the appellant prayed for dismissal of the partition suit. The

Learned Trial Court in delivering the judgment of the partition suit decreed

the suit in favour of the respondent-plaintiffs and on the same day by

another judgment also dismissed the counter -claim of the present

appellant-defendants. But surprisingly, they did not challenge the judgment

passed by the Learned Trial Court in the said counter-claim, rather, they

only preferred appeal under Section 96 of CPC challenging the judgment of

the Trial Court in partition suit bearing No.T.S.(Partition)03 of 2017 and the

said fact was also admitted by Learned counsel for the appellants in course

of hearing of argument. Learned First Appellate Court in deciding the first

appeal relied upon the judgment of Hon‟ble Apex Court in Syed Gulam

Ghouse Mohiuddin and Others Vs. Sayed Shah Ahmed Mohiuddin

Kamisul Qadri reported in AIR 1971 SC 2184 . In this regard, Hon‟ble

Apex Court in Govindammal versus R. Perumal Chetti ar and Others

reported in 2006 11 SCC 600 in para Nos.10 to 14 observed as under :

“10. In the case of Mohaideen Abdul Kadir & Ors. V.

Mohammad Mahaideen Umma & Ors. reported in ILR [1970] 2

Mad. 636 their Lordships held that no hard and fast rule c an

be laid down. But the following relevant factors may be taken

into consideration : (i) exclusive possession and perception of

profits for well over the period prescribed by the law of

limitation ; (ii) dealings by the party in possession treating the

properties as exclusively belonging to him; (iii) the means of

the excluded co -sharer of knowing that his title has been

denied by the co-owner in possession. There may be cases,

where, owing to long lapse of time, it may not be possible for

the co- owner in possession to adduce evidence as to when

the ouster commenced and how it was brought home to the

knowledge of the excluded co -owner. In such a case the law

Page 15 of 18

will presume ouster as an explanation of the long peaceful

possession of the co -owner in possession . In order to

maintain the person in such possession the law presumes a

lawful origin of the possession. Therefore, no hard and fast

rule can be laid down from which it can be inferred that any

co-sharer has ousted his co -sharer. That will depend upon

facts of each case. Simply long possession is not a factor to

oust a co-sharer but something more positive is required to be

done. There must be a hostile open possession denial and

repudiation of the rights of other co -owners and this denial or

repudiation mu st brought home to the co -owners. Simply

because a co-sharer gave notice claiming partition of the suit

properties and possession and did not pursue the matter

further, that will not be sufficient to show that the co -sharer

has lost his/her right. In the present case, it is only when 'B'

schedule property was being sold by two brothers then alone

the plaintiff woke up to realise that the step sons were not

interested to give her share in the property and she rushed to

file the suit. Therefore, by no stretch of imagination it can be

inferred in the present case that the plaintiff had lost her right

to claim partition and share in the property.

11. In the case of Vidya Devi alias Vidya vati ( dead) by LRs v.

Prem Prakash & Ors. reported in (1995) 4 SCC 496 the

question was whether the plea of acquisition of title by

adverse possession was available to the co -bhumidhar or not.

In that context, their Lordships held that when no period of

limitation is fixed for filing a suit for partition by a co -

bhumidhar against his other co -bhumidhars in respect of a

joint holding, the question of the other co -bhumidhar

acquiring his title to such holding by adverse possession for

over 12 years can never arise. It was furthe r observed that if

that be so, such plea of perfection of title by adverse

possession of a holding by a co -bhumidhar against his other

co-bhumidhar as defence in the latter's suit for partition can

be of no legal consequence.

12. In the case of Mohammad Baqar & Ors. V. Naim -un-Nisa

Bibi & Ors. reported in AIR 1956 SC 548 it was observed that

under the law possession of one co -sharer is possession of all

co-sharers, it cannot be adverse to them, unless t here is a

denial of their right to their knowledge by the person in

possession and exclusion and ouster following thereon for the

statutory period. There can be no question of ouster, if there

is participation in the profits to any degree.

13. In the case of Md. Mohammad Ali (dead) by LRs v.

Jagadish Kalita & Ors. reported in (2004) 1 SCC 271 this Court

examined a series of decisions on the question of adverse

possession and after extracting the legal propositions from

various decisions, their Lordships con cluded that long and

continuous possession by itself, it is trite, would not constitute

adverse possession. Even non -participation in the rent and

profits of the land to a co-sharer does not amount to ouster so

as to give title by prescription. A co-sharer, as is well settled,

becomes a constructive trustee of other co -sharer and the

right of a person or his predecessors -in-interest is deemed to

have been protected by the trustees.

14. As against this, our attention was also invited to a decision

in the case of T.P.R. Palania Pillai & Ors. V. Amjath Ibrahim

Rowther & Anr. reported in AIR 1942 Madras 622, their

Lordships observed that in order to constitute adverse

possession, the possession must be adequa te in continuity, in

publicity and in extent to show that it is possession adverse to

the competitor. Therefore, in cases of adverse possession also

their Lordships have said that the possession should be for

longer period and it is known to the competitor that it is held

adverse to his knowledge. Their Lordships further held that in

cases of usufructuary mortgage granted by one of several co -

Page 16 of 18

sharers if a person remains in possession of the land and

cultivates it for years, the requirement of continuity, pu blicity

and extent for adverse possession are fully complied with. But

that is not the case here.”

[20] Further, Hon‟ble the Apex Court in Nagabhushanammal

(Dead) by Legal representatives versus C. Chandikeswaralingam

reported in (2016) 4 SCC 434 in para Nos.21 to 24 also observed as

under :

“21. The other main defenc e in the suit is ouster and

limitation. Ouster is a weak defenc e in a suit for partition of

family property and it is strong if the defendant is able to

establish consistent and open asserti on of denial of title, long

and uninterrupted possession and exercise of right of

exclusive ownership openly and to the knowledge of the other

co-owner.

22. This court in Syed Shah Ghulam Ghouse Mohiudd in and

others v. Syed Shah Ahmed Mohiuddin Kamisul Quadri and Ors

: (1971) 1 SCC 597 held that possession of one co -owner is

presumed to be on behalf of all co -owners unless it is

established that the possession of the co -owner is in denial of

title of co-owners and the possession is in hostility to co -

owners by exclusion of them. It was further held that there

has to be open denial of title to the parties who are entitled to

it by excluding and ousting them.

23. A three judge bench of this court in P. Lakshmi Reddy v.

R.Lakshmi Reddy : AIR 1957 SC 314 , while examining the

necessary conditions for applicability of doctrine of ouster to

the shares of co-owners, held as follows:

“4. Now, the ordinary clas sical requirement of

adverse possession is that it should be nec vi nec

clam, nec precario. (See Secy of State for India in

Council v. Debendra Lal Khan : 1933 SCC OnLine PC

65. The possession required must be adequate in

continuity, in publicity and in extent to show that it

is possession adverse to the

competitor. (See Radhamoni Debi v. Collector of

Khulna: 1900 SCC OnLine PC 4 . But it is well-settled

that in order to establish adverse possession of one

co-heir as against another it is not enough to show

that one out of them is in sole possession and

enjoyment of the profits of the properties. Ouster of

the non-possessing co -heir by the co -heir in

possession who claims his possession to be adverse,

should be made out. The possession of one co -heir

is considered, in law, as possession of all the co -

heirs. When one co-heir is found to be in possession

of the properties it is presumed to be on the basis of

joint title. The co-heir in possession cannot render

his possession adverse to the other co -heir not in

possession merely by any secret hostile animus on

his own part in derogation of the other co -heir's

title. (See Corea v. Appuhamy: (1912) AC 230 (PC) .

It is a settled rule of law that as between co -heirs

there must be evidence of open assertion of hostile

title, coupled with exclusive possession and

enjoyment by one of them to the knowledge of the

other so as to constitute ouster. This does not

necessarily mean that there must be an express

demand by one and denial by the other.”

Page 17 of 18

24. This Court in Vidya Devi v. Prem Prakash : (1995) 4 SCC

496 held that:

“28. „Ouster‟ does not mean actual driving out of the

co-sharer from the property. It will, howeve r, not be

complete unless it is coupled with all other

ingredients required to constitute adverse

possession. Broadly speaking, three elements are

necessary for establishing the plea of ouster in the

case of co-owner. They are (i) declaration of hostile

animus, (ii) long and uninterrupted possession of

the person pleading ouster, and (iii) exercise of

right of exclusive ownership openly and to the

knowledge of other co -owner. Thus, a co-owner, can

under law, claim title by adverse possession against

another co-owner who can, of course, file

appropriate suit including suit for joint possession

within time prescribed by law.”

In both the aforesaid cases, Hon‟ble the Apex Court observed

as to how the doctrine of „ouster to‟ be followed. It was also further clarified

that to substantiate the doctrine of „ouster‟ the following factors are to be

considered for determining „ouster‟ in the case of co-owner. They are (i)

declaration of hostile animus, (ii) long and uninterrupted possession of the

person pleading ouster and (iii) exercise of right of exclusive ownership

openly and to the knowledge of other co-owner.

[21] Here in the given case, although, the defendant-appellants took

the plea of doctrine of „ouster‟ in course of hearing of argument but from

the evidence on record and also from their pleadings, nowhere I find that

the appellants could able to prove the said doctrine „of ouster‟ stated by

them against the respondent-plaintiffs. More so, they also did not prefer

any appeal challenging the judgment dated 30.09.2019 and decree dated

11.10.2019 delivered by the same Trial Court in T.S.(CC) 03 of 2017.

Furthermore, the appellants also could not show any valid grounds on the

basis of which it could be inferred that the appellants have acquired right of

adverse possession against the respondent-plaintiffs.

[22] Situated thus, considering the materials on record it appears

that in absence of cogent materials on record, the present appellants have

failed to show any substantial question of law to be decided in their favour

Page 18 of 18

and as such, I do not find any infirmity or irregularity in the judgment

delivered by the Learned First Appellate Court in T.A. 62 of 2019, affirming

the judgment of the Learned Trial Court.

[23] In the result, the second appeal filed b y the appellant-

defendants stands dismissed being devoid of merit with costs. The

judgment dated 27.07.2023 and decree dated 22.08.2023 delivered by

Learned District Judge in connection with Case No.T.A.62 of 2019 affirming

the judgment dated 30.09.2019 an d decree dated 11.10.2019 delivered by

Learned Civil Judge, Senior Division, (Court No.1) West Tripura, Agartala in

connection with Case No.T.S.03(partition) of 2017 is hereby upheld and

accordingly it is affirmed.

Prepare the decree accordingly.

Send down the LCRs along with a copy of the judgment.

Pending application/s, if any, accordingly stands disposed of.

JUDGE

Sabyasachi B