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2003 DIGILAW 1176 (JHR)

Chandi Charan Kolay v. Swarn Singh

2003-09-19

P.K.BALASUBRAMANYAN, R.K.MERATHIA

body2003
ORDER 1. The defendant in a suit for declaration of title and recovery of possession is the appellant in this Second Appeal filed under Section 100 of the Code of Civil Procedure. The plaintiffs came to Court claiming recovery of possession of the building in question including a shop room on the plea that the said building including the shop room was held by one Ashutosh Ganguli as allotted by TISCO. Ashutosh Ganguli had gifted that property to Swapan Kumar Chakraborty and Dilip Chandra Chakraborty and they had in turn assigned the property to the plaintiffs on 25.9.1993 and thus the plaintiffs had acquired title to the property. The defendant was let into the building as a tenant by Ashutosh Ganguli and he continued to be a tenant. Though intimation was given to him about the assignment of the suit property to the plaintiffs and rent from the date of assignment was demanded, the defendant defaulted in payment of rent. The plaintiffs were, therefore, entitled to recover possession of the building. The suit was valued based on the market value of the property in the possession of the defendant. There was also a claim for recovery of arrears of rent. The defendant contested the suit. He contended that the building belonged to him and the plaintiffs had no title to the same. Alternatively, he pleaded that he had been in possession of the building from the year 1944 adversely to Ashutosh Ganguli and consequently he had acquired a title to the suit premises by adverse possession and the plaintiffs were not entitled to any relief. He denied the existence of the relationship of landlord and tenant between the plaintiffs and himself. 2. Alternatively, he pleaded that he had been in possession of the building from the year 1944 adversely to Ashutosh Ganguli and consequently he had acquired a title to the suit premises by adverse possession and the plaintiffs were not entitled to any relief. He denied the existence of the relationship of landlord and tenant between the plaintiffs and himself. 2. Before the trial Court, in addition to producing the assignment in their favour and other documents showing the attorn-ment by Ashutosh Ganguli to TISCO and the deed of gift, executed by him, the plaintiffs also marked the plaint in Title Suit No. 87/83 filed by the present defendant against Swapan Kumar Chakraborty, Dilip Chandra Chakraborty and the sons of Ashutosh Ganguli seeking a declaration of his tenancy right under Ashutosh Ganguli and another plaint in Title Suit No. 32/87 filed by defendant against the two Chak-rabortys, for a declaration of his title and for a permanent injunction restraining them from interfering with his possession of the building on the plea that Swapan Kumar Chakraborty and Dilip Chandra Chakraborty never came into possession of the property since though the suit land was allotted in the name of Ashutosh Ganguli by TISCO, in fact the said Ashutosh Ganguli was only a benamidar for himself and that he was the real owner of the property. 3. The defendant attempted to explain the admissions contained in the plaint in T.S. 87/83 by pleading that he was mislead by his son who filed that suit and he had signed in the plaint without understanding the contents thereof. He also pointed out that he had sought to withdraw that suit by making an application under Order 23, Rule 1 of the Code of Civil Procedure, but the Court had refused to grant him permission and the suit had been dismissed as withdrawn. Regarding the plaint in Title Suit No. 32/87, the defendant only pointed out that the said suit was dismissed. 4. The plaintiffs also examined five witnesses in support of their case. The defendant, in his turn, examined seven witnesses. Regarding the plaint in Title Suit No. 32/87, the defendant only pointed out that the said suit was dismissed. 4. The plaintiffs also examined five witnesses in support of their case. The defendant, in his turn, examined seven witnesses. The trial Court, on an appreciation of the evidence in the case including the admissions in the two plaints filed by the defendant, came to the conclusion that Ashutosh Ganguli had acquired title to the property from TISCO, and had gifted it to the two Chakrabortys, who had assigned the property to the plaintiffs and thus the title to the property including the room in question, vested in the plaintiffs. The trial Court taking note of the admissions of the defendant in Title Suit No. 87/83 and on an appreciation of the evidence of the plaintiffs and the defendant, and the witnesses examined, came to the conclusion that the plaintiffs had proved that the defendant was holding the building as a tenant under Ashutosh Ganguli and that the relationship of landlord and tenant continued and the plaintiffs were therefore entitled to recover possession of the building from the defendant. Thus a decree for eviction was passed. 5. An appeal was filed by the defendant challenging that decree. The lower appellate Court formulated two questions, whether the plaintiffs have title to the suit premises and whether there existed the relationship of landlord and tenant between the parties. The appellant Court, on a reappraisal of the relevant materials including the stand adopted by the defendant in Title Suit No. 32/87 and his attempted explanation of the admission contained therein, came to the conclusion that the trial Court was justified in holding that title to the building had come to vest in the plaintiffs by virtue of the assignment Ext.1 in their favour. Proceeding from there, the lower appellate Court also held that on the evidence, the finding of the trial Court that there was in existence a relationship of landlord and tenant between Ashutosh Ganguli and the defendant and that relationship continued, was justified. Thus agreeing with the trial Court, the appellate Court dismissed the appeal. This is challenged in this second appeal by the defendant. 6. One of the substantial questions of law sought to be raised is whether the Courts below were justified in treating the suit as a title suit when it is numbered as an eviction suit. Thus agreeing with the trial Court, the appellate Court dismissed the appeal. This is challenged in this second appeal by the defendant. 6. One of the substantial questions of law sought to be raised is whether the Courts below were justified in treating the suit as a title suit when it is numbered as an eviction suit. Though it was numbered as an eviction suit, it is clear from the plaint and the written statement filed, that the question that arose for decision was whether the plaintiffs were entitled to recover possession of the property. The suit had also been valued as one for declaration of title and recovery of possession on title. The eviction was not. sought merely on the ground of arrears of rent in terms of Section 11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. Merely because the suit was numbered as eviction suit, that cannot decide the nature of the suit. The suit, in my view, has rightly been tried as a title suit by the trial Court and dealt with as one on title by the lower appellate Court. Therefore, I find no substance in the first substantial question of law sought to be raised in the memorandum of second appeal. 7. The other substantial question of law sought to be raised essentially related to the evidentiary value of the two plaints filed by the defendant and the correctness of the finding arrived at by the Courts below on the existence of the relationship of landlord and tenant between the parties. Strictly speaking, that finding is a finding of fact based on an appreciation of evidence and can be interfered with only if adequate circumstances are made out. 8. As regard the evidentiary value of the two plaints filed earlier by the present defendant, obviously they are prior pleadings containing admissions of the defendant and consequently they constitute substantive evidence. No doubt, it was open to the defendant to explain those admissions or show them to be wrong. The Courts below found that the defendant has not succeeded in showing that what he had admitted in the first suit T.S. No, 87/83 was wrong. His attempt to show that the said plaint was filed by his son and he was not aware of what was stated in the plaint, was not accepted by the trial Court and by. The Courts below found that the defendant has not succeeded in showing that what he had admitted in the first suit T.S. No, 87/83 was wrong. His attempt to show that the said plaint was filed by his son and he was not aware of what was stated in the plaint, was not accepted by the trial Court and by. the lower appellate Court. I cannot say, sitting in Second Appeal, that the trial Court and the first appellate Court were not justified in discarding the evidence of D.W. 2, the defendant, on that aspect. Therefore, the two plaints filed by the defendant earlier, do constitute valid pieces of evidences in the case, and one of them contains a clear admission that the defendant was a tenant of Ashutosh Ganguli, the original lessee from TISCO. Even the second plaint contains an admission that Ashutosh Ganguli was the ostensible owner and there- after it seeks to set out a case that Ashutosh Ganguli was only a benamidar and the real owner was the defendant himself. That plea could not also be established by the defendant. In this situation, the findings arrived at by the Courts below, which are based on an appreciation of evidence of the witnesses, including that of the defendant, that the title to the suit premises vested in Ashutosh Ganguli and the said title subsequently devolved in the plaintiffs, do not suffer from any substantial error of law justifying interference by this Court. What remains is, only the question of adverse possession set up by the defendant. Though he pleaded that possession become adverse from the Year 1944, he did not adduce any evidence to substantiate that plea. The plaint in T.S. No. 7/83 on the other hand contained a plea which clearly militated against any case of possession being adverse as on that day. On the other hand, it contained a clear admission that the possession of the defendant was permissive. Prima facie, the defendant has not only to show that he has been in continuous possession, but has also to show that he possessed the property adversely to the knowledge of the owner of the property. There is admittedly no evidence on. this aspect from the side of the defendant. Prima facie, the defendant has not only to show that he has been in continuous possession, but has also to show that he possessed the property adversely to the knowledge of the owner of the property. There is admittedly no evidence on. this aspect from the side of the defendant. If one were to go by the assertion contained in the plaint in T.S. No. 32/87 that Ashutosh Ganguli was a benamidar of the defendant and the defendant was the real owner, the defendant had to show that he had the animus to hold the property adversely to the ostensible owner and had thereafter held the property adversely for the requisite period. The Courts below have found that the defendant has failed to establish such a case. On the materials, the trial Court and the appellate Court in my view were justified in negativing the case of adverse possession set out by the defendant. No substantial error of law vitiates that finding. 9. The judgments and decrees of the Courts below, in my view, do not suffer from any substantial error of law. I, there fore, confirm the judgment and decree of the lower appellate Court and dismiss this second appeal.