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2004 DIGILAW 119 (CAL)

JATINDRA NATH MONDAL v. HARIMOTI DASSI

2004-02-18

AMITAVA LALA

body2004
AMITAVA LALA, J. ( 1 ) THIS is a dispute between brother and sister. The brother originally instituted a suit as against the sister in 1967 allegedly terminating the licence of the sister in occupying the portion of the premises of their beloved father. Father, gostha Bihari Mondal, since deceased in 1941 or 1942 allowed her daughter, respondent herein to remain in the possession of the property with her husband Bepin chandra Das since accused. Father expired in between 1951 to 1952 survived by widow and the son and daughter as aforesaid. After 1956 (the crucial period for right of inheritance of the property of the famale heir) bepin, the husband of the sister/daughter of the predeceased, expired. The period of expiry of Bepin is about 1960. ( 2 ) THE suit which has been instituted by the brother for termination of the so- called licence of the sister was dismissed on contest by the Court of first instance from which an appeal was preferred. A remand order was passed by the Court of first appeal at the relevant point of time. From where a Second Appeal was preferred. By an order dated 2-7-1976 in the appeal from appellate decree No. 473 of 1972 the High court was pleased to observe that the positive case of the sister is that they had raised the disputed structure and was in possession thereof and they acquired title therein by adverse possession. No doubt the lower appellate Court disbelieved such story of the defence. "but I think that the judgment of the lower appellate Court is not a proper judgment inasmuch as it has not taken into consideration the material evidence on record and the pleadings of both the parties. On the other hand, it has proceeded on the footing that during the life time of goshta Behari Mondal, Bepin Chandra Das came into possession of the disputed room as a licensee and after the death of Goshta behari Mondal the defendant claimed to have continued their possession in the disputed room adversely. " ( 3 ) IN any event, appeal was allowed upon setting aside the order and matter was remitted back to such Court for fresh disposal in accordance with the provision of the law. The first appellate Court framed certain points for the purpose of due consideration. " ( 3 ) IN any event, appeal was allowed upon setting aside the order and matter was remitted back to such Court for fresh disposal in accordance with the provision of the law. The first appellate Court framed certain points for the purpose of due consideration. One of such points is "have the defendants acquired title to the suit property by adverse possession ?" Thereafter it was considered in the following manner. "it is not in dispute that the suit land in premises No. 115, Kali Charan Ghosh Road, originally belonged to plaintiffs father gostha Behari Mondal. The rent receipts for the year 1346, 47 and 48 B. S. (Exts. 2 to 2b) prove that Gostha was the tenant in respect of the land in premises No. 115. Kali charan Ghosh Road, D. W. 1 Harimoti, the defendant No. 1 also admitted her father's original title to the property by saying that he gave them the land in suit. The plaintiffs father Gostha died 18/18 years before the deposed on 28-7-1970. That takes us to 1951-52. In the four conerns of the plaint, it was not stated when the licence was granted to Bipin. Only in his deposition the plaintiff for the first time stated that he granted licence to the defendant No. I's husband 27/28 years ago. That takes us back to the year 1942-43. Therefore, in the absence of any reliable documentary evidence to prove the plaintiffs ownership of the suit property at the relevant time, his deposition that he was the owner of the suit property during his father's life time and was so competent to grant licence to Bipin cannot be accepted. There was no case also that the plaintiffs father granted licence to Bipin during his life time and after his death the plaintiff granted a fresh licence to him. The story of alleged grant of licence to Bipin thus fails to the ground. Admittedly, the defendants are in possession of the suit property for 27/28 years since the time of their predecessor in interest. We do not know how they came into occupation of the suit property, D. W. 1 harimoti stated in her cross-examination that her father gave them the land in suit and her husband raised the suit room. The plaintiff has not produced anything to show that he or his father constructed the suit structures. The plan (Ext. We do not know how they came into occupation of the suit property, D. W. 1 harimoti stated in her cross-examination that her father gave them the land in suit and her husband raised the suit room. The plaintiff has not produced anything to show that he or his father constructed the suit structures. The plan (Ext. 1) which was admitted in evidence on formal proof being dispensed with prepared in the year 1950, does not by itself prove that the suit structure was raised by the plaintiff of his father. The plaintiff living in the. same premises had full knowledge of possession of the suit property by the defendants and such possession was admittedly without interruption, continuous and open. It is true that a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owner for a period of 12 years or more (vide AIR 1971 SC 996 ). But in this case the story of permissive possession has no legs to stand upon and the defendant's possession must be held adverse by necessary implication. I must, accordingly, conclude that the plaintiffs admitted title to the property has been extinguished by adverse possession of the defendants. These points are thus answered against the plaintiff/appellant". ( 4 ) BY preferring the appeal from such order the appellants contended that the substantial question of law is available about such finding of facts. It is necessary to record hereunder that although the appeal was dismissed concurrently with the Court of first instance, but Court of first instance dismissed the appeal on account of licence. But in respect of adverse possessory right of the sister, the Court was silent. But the appellate court even upon dismissing such appeal held that the sister has adverse possessory right by necessary implication. However, I do not find that any point was formulated at the time of admission of the appeal in 1979. The appeal is pending from such period. Therefore, an expeditious disposal was needed at the time of hearing. Court was pleased to call upon the appellants to formulate certain points from the memorandum of Appeal so that the second appellate Court can proceed on that score. The appeal is pending from such period. Therefore, an expeditious disposal was needed at the time of hearing. Court was pleased to call upon the appellants to formulate certain points from the memorandum of Appeal so that the second appellate Court can proceed on that score. ( 5 ) IN turn, the learned Counsel appearing on behalf of the appellant/brother stated that ground Nos. IV, V, IX, XIX, XXIV and XXIV are the appropriate grounds creating a substantial question of law. I have gone through the same but it has not impressed me at all. However, as the Court out of his own can decide the substantial question of law by formulating a point. The necessary point whether the first appellate court was right in holding that adverse possessory right has been created in favour of the sister by necessary implication or nor. ( 6 ) MR. Ashok Banerjee, learned Senior counsel appearing on behalf of the appellant to contended before this Court that such adverse possessory right cannot be available in respect of the sister of view of the facts as indicated by the first appellate Court as aforesaid. He has cited a decision reported in (2001) 3 SCC 179 : ( AIR 2001 SC 965 ) (Santosh Hazari v. Purushottam Tiwari) to establish his case that adverse possessory right, whether sufficiently proved or not, is necessary a question of law and as such it has to be decided by the second appellate court. According to me, there should be hardly any other opinion on that score specifically when it appears to this Court that after the order of remand being passed by the second appellate Court, the first appellate Court came to a conclusion with regard to adverse possessory right of the sister. ( 7 ) IN this context, Mr. Haradhan banerjee, learned Senior Counsel appearing on behalf of the respondent contended that whether inference of possession is sufficient or not is the question sought to be raised by the appellants before this Court. If the evidence are available to justify inference of adverse possession, then such finding cannot be said to be perverse. Whether the respondent/defendant is a licensee or not is a question of fact. Adverse possessory right can be used as a defence, i. e. , as a shield. If the evidence are available to justify inference of adverse possession, then such finding cannot be said to be perverse. Whether the respondent/defendant is a licensee or not is a question of fact. Adverse possessory right can be used as a defence, i. e. , as a shield. He cited paragraph 16 of the judgment reported in, air 1970 SC 1778 (State of West Bengal v. Dalhousie Institute Society) and contended that possession has to be continued openly as of right and uninterruption will be the appropriate ground to establish that one acquires title by adverse possession. In (1981) 2 SCC 103 : ( AIR 1981 SC 707 ) (Kshitish Chandra Bose v. Commissioner of Ranchi) three Judges bench of the Supreme Court held that adverse possession or hostile title must be established by a consistent course of conduct and it cannot be shown by a stray or sporadic act of possession. However, all that the law requires is that the possession must be open and without any attempt of concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on, where an ouster of title is pleaded. ( 8 ) I find that there is no refusal to the fact that sister is occupying the premises for last 28 years admittedly. The original owner of the property, i. e. , the father expired 18 to 19 years back as per the evidence of the plaintiff dated 28-7-1970. Good, bad or indifferent a construction was made by the sister in respect of her occupation in the property. The evidence of residing in the premises of 28 years is corroborative of the defendant's case. Therefore, effectively, ad- equate in continuity and in publicity, such sister was in occupation in the premises for 28 years admittedly. Good, bad or indifferent a construction was made by the sister in respect of her occupation in the property. The evidence of residing in the premises of 28 years is corroborative of the defendant's case. Therefore, effectively, ad- equate in continuity and in publicity, such sister was in occupation in the premises for 28 years admittedly. Therefore, as and when the sister/defendant took the point of ad- verse possession in the written statement and as and when such possessory right is admitted from the evidence as to why the suit which has been dismissed on account of the ground taken by the plaintiff will be silent alone and as to why the decree asked for adverse possession by the defendant and passed by the first appellate Court on the basis of the formulation of the point cannot be accepted by the Court, is really unknown to me. Incidentally, a question arose in re- spect of the construction made by the sister whether the same is overt act or not. The brother said no document has been filed in respect of construction with regard to per- mission by the Municipality concerned. Whether the same has been done illegally or with the permission, accordingly to me, is a subject matter of decision by the appro- priate authority. But such fact cannot take away the genuine cause of adverse posses- sion since in the admitted case sister is oc- cupying the room and/or premises for the last 28 years. It is to be remembered that the question of adverse possession, now-a- days, can be applied by way of a sword or shield. If it is suit for adverse possession, it is definitely sword. But if it is defence, then it is either will be treated award of shield. Even in defence case onus lies with the de- fendants to prove the case of adverse pos- session either as a sword or as a shield. But whether the appropriate case will be treated as sword or shield that has to be decided by the Court. If the Court found that there is no denial as to the adverse possessory right effectively, adequately in continuity and in publicity, there is no case of refusal of such right. Since the same is an admitted posi- tion whether the decision as regards adverse possession is explicit or by necessary impli- cation, the same is immaterial. If the Court found that there is no denial as to the adverse possessory right effectively, adequately in continuity and in publicity, there is no case of refusal of such right. Since the same is an admitted posi- tion whether the decision as regards adverse possession is explicit or by necessary impli- cation, the same is immaterial. Such words can be, at best, said to be superfluous. But the very cause of adverse possession which has been established following such princi- ple, as above, cannot be ruled out in such manner as contended by the appellants herein. The Court categorically held that when there is a permissive occupation, ad- verse possessory right cannot be estab- lished. But when permissive possession is disbelieved by the Court, adverse possessory right is a necessary inference. Therefore, even the legal analysis by the first appellate court goes totally against the appellants. Moreover, if in 1970 at the time of evidence it is construed that the respondent/sister is occupying the premises for 28 years and if the suit is instituted in 1967 which allows the three years time to minimise time pe- riod from such 28 years, no suit was insti- tuted in respect of such possessory right even for the sake of limitation prior to such period. Therefore, defence case, either fac- tually and legally is established beyond do not. ( 9 ) THUS, I do not find any reason to in- terfere with the matter at all. Hence, I do not find any reason to pass an affirmative order in favour of the appellants in the Sec- ond Appeal. The Second Appeal is, thus, dismissed. Interim order, if any stands vacated. Decree will be drawn up expeditiously as early as possible. Lower Court Records be sent down by 26-3-2004. Certified copy will be granted to the parties within a period of two weeks from the date of putting the req- uisites. Appeal dismissed. .