Allowed

Lekha Roy Choudhury and Anr. v. Sukhapada Jamatia and Ors.

Tripura HC9 Nov 2017LA.App./30/2014

Case brief

AI extract

What is this about?

This appeal concerns apportionment of land acquisition compensation. The High Court set aside the lower court's 50-50 award, holding that evidence proved an oral transfer in 1958 followed by valid registered deeds. Consequently, the appellants were declared owners and entitled to 100% of the compensation.

What did the court decide?

The impugned judgment awarding 50% compensation to respondents is set aside; appellants declared owners entitled to 100% compensation.

Lekha Roy Choudhury and Anr. Vs Sukhapada Jamatia and Ors. — Land Acquisition | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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LA APP 30 of 2014

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1. Smt. Lekha Roy Chowdhury , wife of Sri Goutam Roy Chowdhury, resident of Chhanban, Mahatma Gandhi Road, Udaipur, P.O. & P.S. R.K. Pur, District- Gomati, Tripura

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2. Sri Ranajoy Roy Chowdhury , son of Sri Goutam Roy Chowdhury, resident of Chhanban, Mahatma Gandhi Road, Udaipur, P.O. & P.S. R.K. Pur, District- Gomati, Tripura

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… Appellants

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Versus –

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1. Sri Sukhapada Jamatia , son of late Kunjapada Jamatia, resident of Tainani, P.O. Tainani, P.S. R.K. Pur, Udaipur,

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District- Gomati, Tripura

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2. Smt. Sara Devi Jamatia ,

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daughter of late Kunjapada Jamatia, resident of Tainani,P.O. Tainani, P.S. R.K. Pur, Udaipur, District- Gomati, Tripura

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3. Smt. Jagneswari Jamatia , daughter of late Kunjapada Jamatia, resident of Tainani, P.O. Tainani, P.S. R.K. Pur, Udaipur, District- Gomati, Tripura

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4. Smt. Jerhoda Jamatia daughter of late Kunjapada Jamatia, resident of Tainani, P.O. Tainani,

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P.S. R.K. Pur, Udaipur, District- Gomati, Tripura

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… Respondent s

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the appellants : Mr. Somik Deb, Advocate For the respondents : Mr. GS. Bhattacharji, Advocate Date of hearing & delivery of Judgment and Order : 09.11.2017 Whether fit for reporting : NO

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JUDGEMENT AND ORDER (ORAL)

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This is an appeal under Section 54 of the Land Acquisition Act (LA Act, for short) from the judgment and award dated 18.02.2014 delivered in Civil Misc (LA) 21 of

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LA APP 30 of 2014

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Page 1 of 12

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2012 by the Land Acquisition Judge, South Tripura, Udaipur

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(LA Judge, in short). The reference was made under Section 30 of the LA Act on locating a dispute over the title of the acquired land between the appellants and the respondents by the Land Acquisition Collector. The declaration was made under Section 6 of the LA Act [see the notification under no. F.9(12)/Rev/Seq/IX/08 dated 12.11.2008] for acquiring a total land of 0.47 acres for construction of Gomati Right Bank Canal at Mouja-Rajnagar under Udaipur Sub Division. The acquired land is as follows:

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Mouja: Rajnagar, Tehsil Kachari- Pitra, Sub Division- Udaipur

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Khatian No.	Plot No.	Area	Classification of land
118	3717	0.14 acres	Bagan
118	3716	0.31 acres	Bagan
118	3713	0.02 acres	Bagan
Total		0.47 acres

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2. In the said reference being Misc. (LA) 21 of 2011,

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the appellants filed their statement by stating that the predecessor of the respondents namely Kunjapada Jamatia, since deceased, was the original owner and possessor of the acquired land along with other lands measuring 1.75 acres, as described in schedule ‘A’ of the statement. Kunjapada Jamatia transferred the entire land to one Binode Behari Sengupta and delivered the possession. The said transfer was made orally but after receiving the entire consideration money. Thereafter, Benode Behari Sengupta on 13.09.1962 transferred the said land to one Hriday Ranjan Barman by registered sale deed no. 4490 dated 13.09.1962. It is to be

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LA APP 30 of 2014 Page 2 of 12

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noted that Kunjapada Jamatia transferred the land to Binode Behari Sengupta on 05.03.1958. Kunjapada Jamatia, according to the appellants, transferred the entire scheduled land measuring 1.75 acres recorded in Khatian no. 554 (corresponding to the revision khatian no. 118) in plots no. 3716 (corresponding to old plot no. 1511), 3717 (corresponding old plot no. 1512) and 3713 (corresponding to old plot no. 1.04/1.27). Out of that land, the area of land measuring 0.47 acre was acquired, description of which has been given above. Even Hriday Ranjan Barman sold the entire land measuring 1.75 acres to one Smt. Bichitra Bala Saha and Smt. Ashu Bala Saha by two separate registered sale deed bearing no. 1-5724 dated 27.08.1971 and 1-5725 dated 27.08.1971 respectively. Subsequently Smt. Ashu Bala Saha and Smt. Bichitra Bala Saha by two separate registered sale deed bearing no. 1-5025 dated 27.11.1978 and 1-3777 dated 07.06.1979 sold the entire land measuring 1.75 acres to one Smt. Bina Bhattacharjee with valuable consideration and delivered the possession. Smt. Bina Bhattacharjee raised rubber plantation over that land and she has also collected latex from the mature rubber trees with the knowledge of the respondents, legal heirs of Kunjapada Jamati, but during the revisional survey in the record of right, Kunjapada Jamatia was shown as the owner while showing Smt. Bina Bhattacharjee as the possessor. Having noticed that entry and being aggrieved thereof Smt. Bina Bhattacharjee filed an

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LA APP 30 of 2014 Page 3 of 12

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application under Section 95 of the TLR and LR Act for necessary correction in the record of right.

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3. The petitioner purchased the entire ‘A’ schedule land from Smt. Bina Bhattacharjee by a registered sale deed being no. 1-338 dated 10.02.2006 on payment of valuable consideration, with delivery of possession. Thereafter, on 07.04.2009 the appellants filed a fresh application under Section 95 of the TLR and LR Act for correction of record of right by inserting their name in place of Kunjapada Jamatia and that proceeding was pending when the land was acquired. Thus, there arose a dispute regarding the title of the land particularly, in respect of apportionment of compensation.

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4. The appellants along with their claim statement relied the documents which are as follows:

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(i) The original registered sale deed no. 4490 dated 19.09.1962 by Binode Behari Sengupta in favour of Hriday Ranjan Barman.

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(ii) The certified copy of the registered sale deed no. 4490 dated 13.09.1962 by Binode Behari Sengupta in favour of Hriday Ranjan Barman.

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(iii) Attested sabek parcha no. 554 of Mouja-Radhakishorepur R.F. stands in the name of Kunjapada Jamatia and below his name the name of Hriday Ranjan Barman is recorded in column no. 13 in respect of jote no. 243, area- 4 kanis.

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(iv) The certified copy of sabek khatian no. 554 of MoujaRadhakishorepur R.F. stands in the name of Kunjapada Jamatia and below his name, the name of Hriday Ranjan Barman was recorded ‘as unregistered deed, area-1.75 acres’.

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(v) The original registered sale deed no. 1-5724 dated 27.08.1971 executed by Hriday Ranjan Barman in favour of Smt. Bichitra Bala Saha.

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(vi) The original registered sale deed no. 1-5725 dated 27.08.1971 executed by Hriday Ranjan Barman in favour of Smt. Ashu Bala Saha.

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(vii) The original registered sale deed no. 1-5025 dated 24.11.1978 executed by Smt. Ashu Bala Saha in favour of Smt. Bina Bhattacharjee.

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LA APP 30 of 2014

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Page 4 of 12

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(viii) The original registered sale deed no. 1-3777 dated 04.06.1979 executed by Smt. Bichitra Bala Saha in favour of Smt. Bina Bhattacharjee.

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(ix) The certified copy of R.S. khatian no. 118 of MoujaRadhakishorepur R.F. stands in the name of Kunjapada Jamatia.

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(x) The original registered sale deed no. 1-338 dated 10.02.2006 executed by Smt. Bina Bhattacharjee in favour of Smt. Lekha Roy Chowdhury and Sri Ranajoy Roy Chowdhury.

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(xi) Authenticated copies of petition u/s 95 of T.L.R. and L.R. Act dated 07.04.2009. Letter of O/C Revenue O/O D.M. & Collector, South Tripura, Udaipur addressed to S.D.M. Udaipur, South Tripura dated 27.04.2009 and the Enquiry Report of Tehsildar dated 10.05.2011 and the letter of the State Public information Officer (A.D.M. & Collector, South Tripura) to the State Public Information Officer (S.D.M., Udaipur, South Tripura) dated 02.07.2011 and the letter of the State Public Information Officer (A.D.M. & Collector, South Tripura) to Sri Ranajoy Roy Chowdhury.

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The appellants urged in the reference for declaring their title for purpose of getting the entire compensation money against the said acquired land.

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5. It appears from the records that the respondents herein did not file any statement before the reference court, but one Lakyapada Jamatia, son of late Ratipada Jamatia, a close relative of Kunjapada Jamatia was examined by the appellant, as PW-2. Lakyapada Jamatia has categorically stated in his examination-in-chief as under:

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“The said Kunjapada Jamatia in his lifetime in urgent need of money, about 55 years back sold the aforesaid 4 kanis of land to said Binod Bihari Sengupta at a consideration of Rs.80/- and on receipt of entire consideration money in cash, he delivered possession of the said sold out land to said Binod Bihari Sengupta on the even date in presence of myself, Hridoy Ranjan Barman (now deceased) and some other local people of that locality. The said transfer was made orally without any written document. Since then said Binod Bihari Sengupta had started to possess the said land as sole owner and enjoyed the fruits from those standing fruit producing trees”.

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PW-2 has further stated that Binod Behari Sengupta in his lifetime about 4 years after he purchased the said land, sold the entire land to Hriday Ranjan Barman by the registered sale

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LA APP 30 of 2014 Page 5 of 12

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deed and thereafter the said land was transferred to different hands and lastly the land was transferred to Smt. Lekha Roy Chowdhury and her son.

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One Siraj Ahmed Khadim (PW-3) identified the deed

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as the deed writer without any objection.

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6. Even though no written statement was filed or evidence was led by the respondents, but the written argument was placed in the reference court through their counsel on 07.02.2014. In the said written argument it has been asserted that Kunjapada Jamatia used to possess the aforesaid land by growing mesta (jute) till his death and he died on 09.06.1980 leaving behind the respondents as his legal heirs. Kunjapada Jamatia did never transferred the land in question or any part of it. After death of Kunjapada Jamatia, the respondents inherited the entire land as his legal heirs. In the written argument, it has been stated that unless the transfer in respect of the total land is caused by the registered instrument, the said cannot be treated as the valid transfer. As such the oral transfer dated 05.03.1958 or

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the registered deed dated 30.09.1962 are unsustainable in law.

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7. Having appreciated the rival claims, by the impugned judgment dated 18.02.2014, the reference court framed two issues for determining the reference. Those issues are:

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LA APP 30 of 2014

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Page 6 of 12

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(i) What should be the apportionment of compensation, settled by the L.A. Collector?

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(ii) Any other relief/reliefs the parties are entitled thereto?

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While deciding the issue no. (i) the reference court observed that the proceeding under Section 95 of the TLR and LR Act cannot be interfered. There is no dispute that the land was originally belonged to Kunjapada Jamatia. Record of Right (ROR) was also created and finally published in his name. The transfer of land, as claimed to have been made by him by an unregistered deed was ignored by the settlement authority. Subsequently, the land was transferred to others by registered sale deeds, but original title remained with Kunjapada Jamatia. Kunjapada Jamatia was the owner in possession of the acquired land. He was a tribal and a land of tribal without valid permission from the competent authority cannot be transferred and such transfer is invalid, but the possession was transferred in several times. The possession of the land by Smt. Bina Bhattacharjee is established from the evidence on record as her name had been recorded as the possessor in the khatian (Exhibit-8). It has been further observed by the reference court that the possession of Smt. Bina Bhattacharjee was against the provisions of Section 187 of the TLR and LR Act and Smt. Bina Bhattacharjee, was according to the said record of right, came into possession from 1973 by dint of a registered sale deed (Exhibit 9). Smt. Bina Bhattacharjee transferred the

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LA APP 30 of 2014

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Page 7 of 12

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land to the appellants. The persons having interest over the land are entitled to get compensation . The respondents though have no possession but inherited the land and have interest over the acquired land. Surprisingly, thereafter it has been declared that the appellants who acquired the interest over the land are entitled to get 50% of the compensation, but since the respondents have the title over the land they would also get the 50% of the award. The said judgment has been challenged in this appeal.

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8. I have heard Mr. Somik Deb, learned counsel appearing for the appellants as well as Mr. GS Bhattacharji, learned counsel appearing for the respondents.

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9. Mr. Deb, learned counsel has categorically stated that the evidence is overwhelming to hold the title of the appellants on the entire land measuring 1.75 acres, out of which 0.47 acres was acquired and as such the appellants are entitled to get the entire compensation and there is no question of apportionment of the award.

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10. On the other side, Mr. Bhattacharji, learned counsel has submitted that the record of right has clearly established that the title was with Kunjapada Jamatia and it has devolved to the respondents by way of inheritance and hence there is no infirmity in the impugned judgment and no interference is called for from this court.

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LA APP 30 of 2014

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Page 8 of 12

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11. Having appreciated the submissions, made by the learned counsel appearing for the parties and scrutinized the records, this court would record some initial observations viz.:

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(i) the land was transferred on 05.03.1958 by Kunjapada Jamatia to one Binod Bihari Sengupta and on 13.09.1962 said Binod Behari Sengupta by a registered sale deed no. 1-4490 dated 13.09.1962 transferred the said land to one Hriday Ranjan Barman. Thereafter the transfer took place with delivery of possession by registered sale deed;

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(ii) the respondents did not lay any evidence to rebut the assertion that there was any oral transfer of the said land on consideration of Rs.80/- on 05.03.1958. The oral argument placed, by no strech of interpretation can be treated as evidence.

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12. There cannot be any amount of doubt that when the land was transferred on 05.03.1958 as evidence from the testimony of PW-2, TLR and LR Act, 1960 did not come into effect and as such the permission for transfer of a non-tribal is irrelevant. That apart, for sale of immovable property below Rs. 100/- it does not require to be transferred by a registered instrument. Thus, on the face, the oral transfer which have taken place on 05.03.1958 cannot be doubted particularly on that ground. True it is that during the revisional survey settlement, the record of right was opened in the name of Kunjapada Jamatia, but in the said record of right the name of Smt. Bina Bhattacharjee has been shown as the possessor of the land. It is an indicator to authenticity of the appellant’s claim

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LA APP 30 of 2014

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Page 9 of 12

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13. It is really surprising that the reference court ignored the absence of any evidence from the respondents. On the basis of the entry made in the record of right, which is under challenge in a proceeding filed by the appellants under Section 95 of the TLR and LR Act for causing correction. The finding as challenged has been returned. This court is taken aback when the reference court has observed that when a proceeding under Section 95 of the TLR and LR Act is pending, the reference court cannot determine the issue of title. Adjudication of a dispute relating to the title falls within the jurisdiction of the reference court or to the civil court of the competent jurisdiction. The revenue court does not have that jurisdiction to decide the title. Notwithstanding the wellsettled position of law, the proceeding under Section 95 of the TLR & LR Act was set on motion to decide whether the entry is required to be corrected or not, on the basis of the instrument of title. Therefore, there was no impediment in deciding the title.

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14. From the evidence as led by the appellants, both oral and documentary, this court finds that the transfer of land since 13.09.1962 to 10.02.2006 was caused by the registered sale deeds. By the sale deed no. 1-338 dated 10.02.2006, Smt. Bina Bhattacharjee transferred the entire land measuring 1.75 acres to the appellants. Therefore, the only point which falls for decision is whether there was any LA APP 30 of 2014 Page 10 of 12

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transfer by Kunjapada Jamatia on 05.03.1958. From the evidence, it transpires that there was an oral transfer on having the valuable consideration in favour of one Binode Behari Sengupta on that day in presence of witnesses.

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15. From the evidence of PW-2 (Lakyapada Jamatia) it has clearly transpired that he was present while the said oral transfer was made followed by the delivery of possession to Binod Bihari Sengupta. Even though the respondents carried out the cross-examination, they have not challenged the statement of Lakyapada Jamatia (PW-2) where and when he has stated that as a close relative he was present at the time of the oral transfer and delivery of possession. No specific cross examination has been carried out in that matter. Moreover, the sequence of transfers makes us believe that there existed an oral transfer and based on that long way back, the sale deed dated 13.09.1962 was executed and registered. There is no dispute that all these deeds and the proceeding papers relating to the proceeding under Section 95 of the TLR and LR Act are on record. It has become irresistible to infer that the transaction which had taken place on 05.03.1958 has been proved squarely by the appellants and as such, it is declared that on 05.03.1958 Kunjapada Jamatia transferred the entire land measuring 1.75 acres, as described in the schedule ‘A’ of the claim statement to Binod Behari Sengupta and the transfer of the

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said land to Binod Bihari Sengupta was not prohibited by any extant law.

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16. Tripura Land Revenue and Land Reforms Act, 1960 came to being later on enacting the provisions of Section 187 of the TLR and LR Act. That provision is regulatory in nature and any sale subject to permission from the District Collector that transfer of land from tribal to non-tribal persons. This provision cannot have any effect on 25.03.1985. As such, the subsequent transfer with the delivery of possession is valid. Hence, this court does not have any hesitation to hold that the appellants namely Lekha Roy Chowdhury and Ranajoy Roy Chowdhury are the owners of the acquired land, as described above.

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17. As consequence of such finding, the appellants are entitled to get the entire compensation. Hence, the impugned judgment dated 18.02.2014 is liable to be interfered with and set aside. It is accordingly ordered. To obviate any confusion, it is clearly declared that the appellants are entitled to get the entire compensation for acquisition of the land, as described in schedule ‘B’ of the claim statement of the appellants before the reference court.

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18. In the result, the appeal stands allowed. Draw the decree accordingly and thereafter transmit the records.

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JUDGE

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Saikat

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LA APP 30 of 2014

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Lekha Roy Choudhury and Anr. v. Sukhapada Jamatia and Ors.

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Lekha Roy Choudhury and Anr. v. Sukhapada Jamatia and Ors.

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