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2003 DIGILAW 664 (CAL)

SHEFALI PODDAR v. MONOTOSH PANJA

2003-12-24

AMITAVA LALA

body2003
AMITAVA LALA, J. ( 1 ) ONE Mahamaya was the original 16 annas owner of the property in question. She mortgaged such property to one Kalipada. Kalipada was holding such property as a benamdar of one Priyabala. Mahamaya was not in a position to pay the amount as per mortgage deed. As a result whereof, kalipada claimed to be the owner of the land and instituted an ejectment suit against Mahamaya. However, even after obtaining ejectment decree, kalipada did not execute the same, but, allowed her to continue in possession. After death of Kalipada, Priyabala transferred 16 annas share in the property to Mahamaya on 08. 12. 1962 and on the same day, by a deed of gift, she retransferred the property to one Anil. Anil instituted a suit for declaration and injunction in the year 1966, being Title Suit No. 674 of 1966. Such suit was dismissed for default on 16. 02. 1970. Anil transferred 16 annas share of the property to one Shefali by a deed of gift, who is the defendant/appellant herein. One Tarasundari, daughter of first wife of kalipada transferred her alleged 1/3rd share in respect of the self-same property to the plaintiffs/respondents herein. Thereby, the suit arose. The suit is in the nature of partition. The learned Judge of Court of first instance dismissed the suit by taking a view that possession by assertions of open and hostile title and of ouster to the knowledge of the other owners. The case of the plaintiffs/respondents is that there are three share-holders of kalipada's property having 1/3rd share each. Tarasundari, daughter of the first wife is holding 1/3rd share. Priyabala, second wife, is holding 1/3rd share and Malina, daughter of first wife is holding 1/3rd share. Thus, priyabala cannot transfer 16 annas share in the property of Kalipada to mahamaya consequently to Anil and further consequently to Shefali. In other words, Shefali cannot seize and possess 16 annas share in the property. However, the Court of first instance categorically held as follows:"but despite the passage of the Benami Transaction (Prohibition) Act, 1988 prohibiting any judicial enquiry of such transfer even of pre-act transactions after the coming into force of that Act, the evidence on record are clearly indicative that subsequent acts of the parties created such of the situations. However, the Court of first instance categorically held as follows:"but despite the passage of the Benami Transaction (Prohibition) Act, 1988 prohibiting any judicial enquiry of such transfer even of pre-act transactions after the coming into force of that Act, the evidence on record are clearly indicative that subsequent acts of the parties created such of the situations. I would have considered twice on accepting such contention of benami transaction had there not been alternative defence of acquisition of an indegrent title by adverse possession and by way of ouster by Anil Kumar Mukherjee to Tarasundari or heirs of Malinabala. The numerous propositions of law enunciated in several decisions as referred to by the defendant no. 1 can only be channalised in one stream that of possessing adversely and hostilely in open and not secret assertion to title coupled with putting out of possession of a rightful owner, by a (page 28 begins) a stranger, co-owner or even an alinee from a co-owner and that assertion is to the very knowledge of such rightful owner and such assertion being a points inconsistent with any such joint possession. We have already discussed the evidence, both oral and documentary on that score and at no point of discussion we could come accross that there was any scope of doubt that possession of anil Kumar Mukherjee was not open and hostile and in assertion of absolute title and possession by way of ousting Tarasundari or Malina's heirs since after purchase on 18. 12. 62 and by way of ouster since the end of 1965. At best, the acts of the aliness as evident from the oral and documentary evidence on record turned to be not only open and hostils and by way of ouster but also inconsistent with the maintenance of the doctrine of joint possession. I have also discussed that mere institution of a suit for declaration of absolute title was not par se inconsistent with uninterrupted possession absent of other materials. I have also discussed that in the circumstances of the case, plaintiffs could have attempted at a fair reading of law's requirement if they would have examined Tarasundari or other heirs of Malinabala. It is not to be missed that defendant No. 2 group did not come to contest the suit either. (page 29 begins) To reiterate, plaintiffs is the case for partition based on title of their vendor tarasundari. It is not to be missed that defendant No. 2 group did not come to contest the suit either. (page 29 begins) To reiterate, plaintiffs is the case for partition based on title of their vendor tarasundari. I have already stated earlier that the plaintiffs missed the opportunity to examine her also for a fairer vehiment if any. I have also discussed. That even in the plaint and in evidence, there is assertion that Tarasundari for the first time demanded rent from the tenants in November, 1980 but of no effect. That all showed that defendant No. 1 or prior to her, Anil Kumar Mukherjee exclusively enjoyed the rent usufructs from the tenants which are all inconsistent in the maintenance of the theory of joint property. That is turn is clearly indicative that such deprivation was very well within the knowledge of Tarasundari or other heirs of Malinabala. I have further stated that plaintiffs failed to prove that Anil Kumar Mukherjee realised rent also on behalf of Tarasundari or heirs of Malinabala. These coupled with other acts of possession like mutation of names in the corporation assessment register, paying of taxes attornment to tenants or consequent realisation of rent or even construction further after obtaining sanctioned plan and are clearly indicative of possession by assertions of open and hostile title and of ouster to the knowledge of other rightful owner, namely Tarasundari or heirs of Malinabala. (Page 30 begins ). If that be the case, there is or can be no other binding that such adverse possession started after the acquisition of title and possession by Anil Kumar Mukherjee even since the deed of gift dated 8. 12. 62. 1 have also discussed that mere institution of earlier suit and that too in the year 1966 or its dismissal for default par se does not indicate that Anil Kumar Mukherjee was not in possession thereof particularly when that was a suit only for declaration of absolute title in the suit property and not for recovery of possession either. That being so, there is no escape but to hold that the defendant no. 1 through her vendor Anil Kumar Mukherjee perfected title by acquiring an independent title by adverse possession and by way of ouster to Tarasundari or heirs of Malinabala over the statutory period of twelve years. That being so, there is no escape but to hold that the defendant no. 1 through her vendor Anil Kumar Mukherjee perfected title by acquiring an independent title by adverse possession and by way of ouster to Tarasundari or heirs of Malinabala over the statutory period of twelve years. If that be the case plaintiffs have also not come to file the suit within the period as prescribed under Section 65 of the limitation Act, 1963. The issues are thus answered accordingly in favour of the contesting defendant No. 1 and against the plaintiffs. " ( 2 ) THE question of benami transaction is not before me. The only point struck mind of the learned Judge of the first appellate Court to that the adverse possession was arrested between the period of filing of the suit for declaration of injunction by Anil in the year 1966 till its dismissal for default on 16th February, 1970. Therefore, there is no proof of adverse possession for consecutive 12 years. The relevant portion of the judgment is as follows :"in the next I refer to the question of adverse possession. The case of the defendant is that apart from the title acquired by Anil from the deed of gift executed by Mahamaya, Anil perfected his title over the suit land by adverse possession. The general principle is that adverse possession must be continuous. I assume for the sake of argument without conceding that adverse possession commenced from the deed of gift, i. e. 8. 12. 62. From pleadings as well as from evidence of Anil it appears that in context of disturbance by Tarasundari and heirs of Malina be instituted a suit being T. S. No. 674 of 1966 for a declaration of his title and other reliefs. From evidence of Anil, it appears that in the same suit he obtained an ad-interim injunction order against tarasundari and heirs of Malina were kept out of possession by the process of law or they had no right of entry in consequence of the order of the Court. In that event, plea of adverse possession cannot be taken against them (AIR 1980 Calcutta 57 ). Adverse possession held previous (page 8) to the break was completely wipped off. The period of adverse possession in to start afresh, i. e. on and from 16. 2. 70. In that event, plea of adverse possession cannot be taken against them (AIR 1980 Calcutta 57 ). Adverse possession held previous (page 8) to the break was completely wipped off. The period of adverse possession in to start afresh, i. e. on and from 16. 2. 70. From record, it appears that Tarasundari sold her 1/3rd share in favour of the plaintiff by deed dated 19. 2. 81. It simplies that before the period of limitation Tarasundari sold her 1/3rd share in favour of the plaintiffs. The defendant No. 1 set up a title in law (by deed of gift) and title by adverse possession of her vendor. If the defendant No. 1 who is in possession according to a purported title and she defends that title although she might have defended simply on her vendors 12 years possession in such a case if the purported title is declared had she cannot rely upon her vendors possession as adverse. Admittedly, the defendant No. 1 has 1/3rd share in the suit property. She must specifically locate the balance 2/3rd share in the suit property in which she claims adverse possession. Possession originating from title cannot be intermingled with adverse possession. . The fact of mutation of the name of Anil with the C. M. C. in respect of the suit property or collection of rents from the tenants from the suit property cannot constitute adverse possession when there is short of limitation. In view of the above, I am not in agreement with the findings of the learned Asstt. District Judge. I hold that the plaintiffs by deed dated 19. 12. 81 purchased 1/3rd share of Tarasundari in the suit property. In the result, appeal succeeds. Hence, ordered that, the appeal be allowed on contest with cost. The judgment and decree of the learned Asstt. District Judge are set aside. The suit be decreed on context in preliminary form against the defendant no. 1 a ex-parte against rest. The plaintiffs 1/3rd share in the suit property is hereby declared. The suit be sent back on remand to the Court below for further steps by the parties. " ( 3 ) THEREFORE, this appeal arises in the form of First Miscellaneous appeal. 1 a ex-parte against rest. The plaintiffs 1/3rd share in the suit property is hereby declared. The suit be sent back on remand to the Court below for further steps by the parties. " ( 3 ) THEREFORE, this appeal arises in the form of First Miscellaneous appeal. Technically speaking in the order of remand, an appeal is to be called as First Miscellaneous Appeal at the second appellate stage whereas the decree reversed finally by the first appellate Court, it will called as second Appeal. Little analysis is required in this respect. Order 41 Rule 23 of the Code of Civil Procedure is governing the filed in respect of remand of the case by the appellate Court in respect of preliminary point wherein rule 23a, of the Code of Civil Procedure is governing the field other than preliminary point. Even in such case, the appellate Court shall have the same power as it has under Rule 23 of the Code of Civil Procedure. In the instant case, decree passed in the preliminary form in a partition suit. The suit was sent back on remand for further steps. Therefore, in effect, it is a reversal decree. Yet at the time of admission of the appeal by a Division bench of this Hon'bie Court in presence of the respondents, it was recorded that the order of remand was passed by the appellate Court. When it is recorded as an order of remand by a Division Bench, the same is to be heard as First Miscellaneous Appeal'alone. Therefore, no question of technicality is left open for me to consider leaving aside scope of adjudication. The point is that whether the adverse possession of Anil (Sri anil Mukherjee) is arrested by the suit instituted by him which was dismissed for default or not. ( 4 ) MR. Ghosh, learned Counsel appearing for the appellant relied upon a judgment reported in AIR 1958 Cal. 437 (Achhiman Bibi v. Abdut rahim Naskar and Ors.) from where I find that a Division Bench of this Court held that there is considerable difference between a suit for mere declaration and a suit for declaration coupled with a prayer for possession. It is true that by a decree for declaration, the position of a person in wrongful occupation will not be disturbed, even if the decree be passed in his presence. It is true that by a decree for declaration, the position of a person in wrongful occupation will not be disturbed, even if the decree be passed in his presence. If such person continues in possession even after the declaratory decree, he may, nevertheless, acquire prescriptive title. But if the suit for declaration is coupled with a claim for possession, and such suit is decreed in the presence of the person in wrongful occupation, the decree arrests the running of time against the true owner. If the person in wrongful possession continues in possession even after the decree, the wrongful possession does not ripen to the prescriptive title by efflux of time. Again he cited another judgment reported in AIR 1987 Madhya Pradesh 102 (Nagu and Ors. v. Bhanwarsingh and Ors.) from where I find the Court held that interruption in respect of the possession should be actual, causing a break in the possession. Only an attempt to dispossess or a litigation in the Court cannot be held to be an interruption in the possesion. Similarly, a litigation in the court cannot also be treated as an interruption, unless during the course of the litigation, the person in adverse possession acknowledges the title of the true owner. Such an acknowledgement will certainly affect the adverseness of possession because the element of hostality against the true owner about the title in respect of the land in possession shall be lacking, causing a break in the continuity of adverse possession. He also cited another judgment reported in AIR 1969 Kerala 222 (Velliyottummer sooppi and Ors. v. Nadukandy Moossa and Ors. ). It was held there in that the ouster is certainly a positive matter. The hostile animus necessary to constitute ouster must also be a positive matter. It is a matter involving action. It cannot be mere inaction. If the co-owner in possession did not give a share of the income to the co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his shares, the co-owner in possession would not have given him a share then, the animus is positive, in the sense that it is indicative of an animus to exclude. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his shares, the co-owner in possession would not have given him a share then, the animus is positive, in the sense that it is indicative of an animus to exclude. For entertaining a hostile animus to oust the real owner, the person in possession need not know who the real owner is. If he has the animus to hold the property as his against the whole world including the real owner, whoever he be, known or unknown, the animus is sufficiently hostile to exclude the real owner also. In the judgment reported in AIR 1989 Karnataka 83 (Thimaiah v. Madegwda) it was held that a person in adverse possession acquires title by prescription despite a decree against him both in regard to title and possession. If physical possession was with the judgment-debtor, who with hostile animus having continuous possession throughout the period of prescription sustains such possession without being interrupted either by removal or otherwise, then notwithstanding a galore of decrees against that person, at the end of the 12th year, the plaintiff's title is extinguished by virtue of adverse possession by a hostile possessor. He also cited a Division Bench judgment reported in AIR 1980 Cal. 57 (Friends' Bureau v. The Corporation ot calcutta) wherein it was held by a Division Bench of our High Court that the plea of adverse possession cannot be taken against a party which was kept out of possession by the process of law or had no right of entry in consequence of the order of the Court. Therefore, in effect, the learned counsel appearing for the appellant contended before this Court that by virtue of filing a suit in 1966 and dismissal of the same in the year 1970, the adverse possessory right accrued by the appellant and/or his precedessor-in-interest cannot be excluded between such periods. It is also to be remembered in this context that such suit was instituted for declaration and injunction and not for declaration, injunction and possession clubbed with any possessory interest to which no answer has been given by the respondents. The respondents have proceeded with two different points. ( 5 ) ACCORDING to Mr. It is also to be remembered in this context that such suit was instituted for declaration and injunction and not for declaration, injunction and possession clubbed with any possessory interest to which no answer has been given by the respondents. The respondents have proceeded with two different points. ( 5 ) ACCORDING to Mr. D. P. Mukherjee, learned Counsel appearing for the respondents, the present suit is hit by the principle of constructive res judicata, when the predecessor-in-interest instituted a suit and the same has been dismissed for default. He also submits that the adverse possession is to be proved by the defendants. There is no occassion for the Court to come to a conclusion only on the failure on the part of the appellant by way of necessary inference. Onus of such proof of adverse possession lies with the defendants irrespective of the proof of the case in respect of the title by the plaintiffs. ( 6 ) SO far as the first point i. e. the constructive res judicata is concerned, the appellant cited a judgment reported in AIR 1976 SC 1569 (Syed Mohd. Salie Labbai (Dead) by L. Rs. and Ors. v. Mohd. Hanifa (Dead) by L. Rs. Ors.) giving ingredients of principle of res judicata which are as follows : (1) That the litigating parties must be the same ; (2) That the subject-matter of the suit also must be identical; (3) That the matter must be finally decided between the parties; and (4) That the suit must be decided by a Court of competent jurisdiction. ( 7 ) HOWEVER, such submission was opposed by the respondents- plaintiffs by saying that there is a difference in between res judicata and constructive res judicata. To that, my answer is that admittedly, the earlier suit was not made for any possessory right but exclusively for declaration and injunction. Therefore, the question of adverse possession was not available before that Court. Hence, there is no question that the present suit is hit by the principle of res judicata far to say about constructive res judicata. The difference of res judicata and constructive res judicata is that first one will be governed by the principle of law when the second one is to be construed by the interpretation of law. Hence, there is no question that the present suit is hit by the principle of res judicata far to say about constructive res judicata. The difference of res judicata and constructive res judicata is that first one will be governed by the principle of law when the second one is to be construed by the interpretation of law. Therefore, the second one is to be ascertained from the nature of the suit and a plea of such constructive res judicata is to be taken at the time of framing the issues. I am sorry to say that no such issue was framed. Therefore, at this stage of First miscellaneous Appeal, which is as good as second appellate stage, cannot be allowed to be taken. Morever, such point of constructive res judicata cannot be equated with res judicata, which can be infered, even at this stage, from the record. The word 'constructive' gramatically means capable of, tending towards of concerned in etc. Any right which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. However, when the earlier suit was dismissed for default but not on merit and when the question of possession was not present in the earlier suit being suit for declaration and injunction simplicitor, no question of res judicata or constructive res judicata applies nor at this stage of appeal, it can be allowed to be taken. ( 8 ) UPON going through the written statement, I have seen that not only the appellant-defendant defended the suit but in Paragraph 32 and its sub-paragraphs thereunder categorically made out a case of complete ouster of Tarasundari and the heirs of Malina Bala acquired into absolute ownership after the expiry or 12 years from 1966. In such paragraph and its sub-paragraphs, categorically a positive case for assertion has been made out by the appellant-defendant. Under such circumstances, factually it cannot be disbelieved that no case of complete ouster has been made. The Court of first instance was deeply concerned about the point that burden of proof lies with the person who alleges acquisition of title by adverse possession and carefully analysised the evidence. Under such circumstances, factually it cannot be disbelieved that no case of complete ouster has been made. The Court of first instance was deeply concerned about the point that burden of proof lies with the person who alleges acquisition of title by adverse possession and carefully analysised the evidence. Therefore, it is very difficult to construe that no case of adverse possession pleaded and proved in complete ouster to the right of the plaintiffs-respondents. The weapon of adverse possession can be either used as shield or sword. The previous understanding was that the adverse possession is only to be defended and thereby will be used as shield. But, by various judicial interpretations, now it has been held that it can be used both as shield and sword. Now, the question is when it will be used as shield and when it will be used as sword. If the suit is instituted for declaration of any right of adverse possession by a litigant then obviously such action on the part of such litigant will be treated as sword. But, when it will be defended then it will either be used as shield or as sword or both. The only question in this regard is animus is sufficiently hostile to exclude the whole world including the real owner. ( 9 ) MR. D. P. Mukherjee, learned Counsel for the plaintiff-respondents, cited judgments reported in 2001 (10) SCC 434 (Janakipandyani v. Ganeshwar Panda (Dead) By L. Rs. and Anr.) and in 2002 (2) SCC 62 (Darshan singh and Ors. v. Gujjar Singh (Dead) by Lrs. and Anr. ). It was held therein that the co-sharers, if possessed certain right, cannot be said to be clear ouster of their right in the disputed suit land. Therefore, adverse possession cannot be established. According to me, each and every case has to be understood factually to apply test of law. A laid down principle mainly known for general application but whether such test is applicable herein or not is the subject-matter of consideration. Till now, I have seen that the Court of 1st instance exhaustively dealt with the factual background correctly. The first appellate court only shows its apprehention about arrest of the period thereby passed order or discontinuance of possession. Till now, I have seen that the Court of 1st instance exhaustively dealt with the factual background correctly. The first appellate court only shows its apprehention about arrest of the period thereby passed order or discontinuance of possession. I have already held that suit of declaration and injunction as dismissed for default cannot be held as arresting of actual physical adverse possessory right of the appellant. It is true to say that in order to get adverse possession of the suit land, it must be shown by the defendant that the possession was open hostile and exclusive. Equally, it is a question of finding of the fact of the particular case. Therefore, a brief submission in respect of the judgment reported in air 1975 Gauhati 1 (Thokchom Ibopishak Singh v. Salam Chandra Singh) as well as AIR 1977 Gauhati 1 (Sanglakpam Ningol Adhikarimayum Ongbl ibemcha Devi and Anr. v. Ningomban Mani Singh and Ors.) cannot have any persuasive value on that acore in coming to the conclusion on the basis of the factual aspect available before this Court. From AIR 1957 SC 314 (P. Lakshmi Reddy v. L. Lakshmi), I find that the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. The possession required must be adquate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. 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 adversed, should be made out. Possibly, Mr. Mukherjee wanted to submit that since there are the purchasers of one co-share having 1/3rd share in the property, their right symbolically. . . . . . . exists by such purchase of the share in actual physical possession. I like the spirit of such submission of mr. Mukherjee, but, not in action because no case has been established as yet that even the co-sharer was in actually physically possession of the property. . . . . . . exists by such purchase of the share in actual physical possession. I like the spirit of such submission of mr. Mukherjee, but, not in action because no case has been established as yet that even the co-sharer was in actually physically possession of the property. The only case before the first appellate Court is whether right to remain in actual possession of the defendant/appellant was arrested by instituting the earlier suit and dismissal for default or not. Such point, under no stretch of imagination, can be said to be point for factual consideration with regard to animus sufficiently hostile to exclude the whole world including the real owner. On the other hand, such point is a point for interpretation of law. It can doubtlessly be said that such institution and dismissal of suit for default can be said to be interference with the adverse possession. Adverse possession is a finding of fact and there is no evidence available that the defendant/appellant was not in actual physical possession of the properly between the period of institution of the suit in 1968 and dismissal for default in 1970. Moreover, such suit was for declaration and injunction. No possessory right was claimed. Therefore, such claim in the suit cannot be hit by principle of constructive res judicata. ( 10 ) HENCE, taking into account of all aspects of the matter, I am of the considered opinion that the order of the first appellate Court should be set aside and hereby stands set aside. Interim order, if any, stands confirmed. The decree passed by the Court of first instance is also confirmed. The appeal is , thus, allowed. There will be no order as to costs. ( 11 ) ALL steps are to be taken by the parties consequent to the decree passed by the Court of first instance as early as possible. Let Lower Court Records be sent down to the Court below by 12th january, 2004. If any proceeding is needed to be done in the Court below, the same may be completed within a period of 3 months from the date of communication of this order or from the date of receiving the Lower Court records, whichever is later.