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2001 DIGILAW 83 (CAL)

Prasanta Kr. Roy v. Adhir Kr. Ghosh

2001-02-16

HRISHIKESH BANERJI

body2001
Judgment 1.The substantial question of law involved in this Second Appeal is whether the First Appellate Court was justified in dismissing the plaintiffs/appellants' suit for declaration of title to the suit land, and for permanent and mandatory injunctions, only on the ground that in the plaint there is no prayer for recovery of possession of the suit land. 2. The late Hirendranath Roy owned and possessed 12 cents of land in C. S. Plot No. 3105 in Mouza-Anup Nagar, P. S. Samsergunj, Jangipur, in the District of Murshidabad. The said C.S. Plot was later subdivided into four R. S. Plots being R. S. Plot No. 3105 measuring .05 cents, R.S. Plot No. 3105/3831 measuring 3 cents, R.S. Plot No. 3105/3832 measuring 2 cents. The subject-matter of the present suit is 5 cents of land in R. S. Plot No. 3105. 3. The defendants' predecessor-in-interest Basanta Ghosh and some others who had been washermen and servants of the Zaminder of Kanchatala, the predecessor-in-interest of the appellants, were allowed to reside temporarily in the said C.S. Plot No. 3105 which was later subdivided as stated above. During the Revisional Survey Operations, the said Basanta Ghosh, one Judhisthir Rajak and others taking advantage of the absence of the Zaminders who were then residing in Calcutta, got the C. S. Plot No. 3105 comprising the aforesaid four sub-plots recorded in their names under Soudamini Roy, the paternal grandmother of the plaintiff Nos. 1 to 3 in the present suit. Knowing about the said erroneous entries in R.S. record-of-Rights, the plaintiffs revoked the permissive possession of those persons and brought a civil suit being T.S. No. 38 of 1965 for recovery of possession against the present defendants and others. 4. The said suit was decreed and when on 25.11.1966, the process server of the Court had gone to deliver the possession in execution of the said decree, the defendants in the said suit took fifteen days' time to deliver possession but, ultimately, did not deliver the pessession. 5. The plaintiffs then brought another suit being T. S. No. 135 of 1970 and obtaining a contested decree put the same in execution. Nazir of the Court with the help of the police delivered "khas possession" on 17.5.1972 of Plot Nos. 3105/3832 and 3105/3833 but following the sunset on that day, possession of Plot No. 3105 could not be delivered. The plaintiffs then brought another suit being T. S. No. 135 of 1970 and obtaining a contested decree put the same in execution. Nazir of the Court with the help of the police delivered "khas possession" on 17.5.1972 of Plot Nos. 3105/3832 and 3105/3833 but following the sunset on that day, possession of Plot No. 3105 could not be delivered. On the following day, the defendants judgment-debtors themselves removed their movables from the construction of Plot No. 3105 and gave up possession. 6. The defendants were, however, allowed by the plaintiff No.4 to reside. in another plot on condition that they would vacate the same within 3 to 4 years. As they did not keep their word and the plaintiffs were about to bring a suit against them the defendants illegally entered the suit land with the help of some 'political elements' and tried to evict the plaintiffs from the same. An employee of the plaintiffs lodged two diaries with the police and a case was started against them by the police. Getting furious, it is alleged, the defendants tried to cut down the big Nim tree on the suit plot and on 3.7.1979 illegally constructed a temporary structure in a portion of the suit plot as shown in the sketch map in the schedule to the plaint and hence the present suit. 7. It is stated by the defendants that T. S. No. 38 of 1965, i.e., the first suit was a collusive ex perte decree and an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said decree was pending when the trial Court passed the judgment in the present suit. 8. It is the defendants' case that in the second suit two of the defendants were served with notices while two others did not receive the same and that the plaintiffs do not have possession of the suit land as would be evident from the process-server's report in the execution proceeding following the second decree. From the said report, it appears that possession in respect of 5 cents of land in Plot No. 3105 from Adhir & others could not be taken. The defendants stated that they acquired title to the suit property by adverse possession for a period of more than 30/40 years. 9. From the said report, it appears that possession in respect of 5 cents of land in Plot No. 3105 from Adhir & others could not be taken. The defendants stated that they acquired title to the suit property by adverse possession for a period of more than 30/40 years. 9. The learned Munsiff dismissed the suit holding that the defendants had been residing on the suit plot for 30/35 years last; that they had obtained right thereto by adverse possession and, therefore, the suit was barred by limitation. 10. The First Appellate Court confirmed the finding of the trial Court that the plaintiffs did not get possession of the suit plot but set aside its finding that the defendants acquired title to the suit property by adverse possession. 11. The First Appellate Court has found that the defendants have not acquired any title by adverse possession; that the plaintiff's title to the suit property had not been extinguished and that the defendants' occupation of the suit property has not been lawful. 12. It is an established principle of law that once a suit for possession is instituted against a defendant in adverse possession, the adverse possession of the latter ceases to continue: 13. Beginning from 1965 and ending with 1979, the year in which the present suit was instituted, three successive suits two of which having been for declaration of title and recovery of possession and the third for declaration of title, permanent injunction and mandatory injunction directing the defendants to demolish unauthorised structures were filed by the plaintiff against the defendants and/or their predecessor in-interest. 14. The defendants, in such circumstances cannot be said to have acquired title by adverse, possession and the finding of the First Appellate Court that the defendants have not acquired title by adverse possession is justified and does not call for any interference. 15. However, the suit was dismissed by the First Appellate Court only on the ground that there was no prayer for recovery of possession. The Court below, in such circumstances, should have given the plaintiffs an opportunity of amending the plaint to seek the appropriate relief of recovery of possession, as it was found that the defendants were in possession of the suit property. 16. The Court below, in such circumstances, should have given the plaintiffs an opportunity of amending the plaint to seek the appropriate relief of recovery of possession, as it was found that the defendants were in possession of the suit property. 16. Learned Counsel for the appellant refers to the following decisions in support of his contention that the plaintiffs in this case are not required to sue for recovery of possession :- (1) AIR 1928 Pat 124, Emperor v. Bandhu Singh & Ors. ; (2) AIR 1974 SC 105, M. C. Chokalingam & Ors. v. V. Manickavasagam & Ors. ; (3) AIR 1961 SC 808 , C. Md. Yunus v. Syedunnissa ; (4) AIR 1976 Cal 238 , Jyotirmoyee Devi v. Durgadas Banerjee; (5) AIR 1950 SC 335, Mst. Rukhma Bai v. Lala Laxmi Narayan; (6) AIR 1998 Gujarat 17, Naval Ram Laxmi Das Dev Murari v. Vijayaben Jayant Bhai, Chavda. 17. None of the above decisions is applicable to the facts of the present case, inasmuch as the defendants' actual physical possession to the suit property has been found by both the Courts below and this Court also confirms the said finding. In none of the cases cited above the defendants were found to have been in actual settled possession for a considerable period as it is in the instant case. 18. The decision in (7) Nirmala Bala Ghosh & Ors. v. Balai Chand Ghosh & Ors. reported in AIR 1975 Cal 405, cited by the learned Counsel for the appellant, however, is found to be applicable to the facts of the present case. In the said decision, a Division Bench of this Court held that the plaintiff should be given an opportunity of amending the plaint where the Court is satisfied regarding the claim of the plaintiff but is not in a position to pass a decree on the technical bar of the proviso to Section 42 of the Specific Relief Act, 1877 (which corresponds to Section 34 of the Specific Relief Act, 1963). 19. The plaintiffs/appellants, in such circumstances, are granted leave to amend suitably the plaint, within a month from date to add the prayer for recovery of possession of the suit property being the consequential relief which the plaintiffs have omitted to pray for in the suit. 20. 19. The plaintiffs/appellants, in such circumstances, are granted leave to amend suitably the plaint, within a month from date to add the prayer for recovery of possession of the suit property being the consequential relief which the plaintiffs have omitted to pray for in the suit. 20. In case of compliance of the above direction, the records will be sent to the trial Court and the trial Court shall amend the plaint accordingly. The defendants shall, thereafter, be given a chance to file Additional Written Statement. The trial Court will then frame an additional issue regarding the plaintiffs' right to get recovery of possession of the suit property. The parties will, thereafter, be heard on the basis of evidence already on record and after determination of the said issue, the trial Court shall return the evidence together with its findings on that issue to this Court. The trial Court, viz., the Second Court of Munsiff, Jangipur in the District of Murshidabad is directed to dispose of the matter within a period of three months from the date of the receipt of the records in the Court below and to return the evidence to this Court along with its findings on that issue.