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2004 DIGILAW 134 (GAU)

Nitya Harimazumder v. State of Tripura

2004-02-23

TINLIANTHANG VAIPHEI

body2004
JUDGMENT T. Vaiphei, J. 1. The second appeal is directed against the judgment and decree dated 14.12.2000 passed by the learned District Judge, West Tripura, Agartala in Title Appeal No. 48 of 1996 affirming the judgment and decree dated 20.5.1996 passed by the learned Civil Judge (senior division), Court No. 1, West Tripura in Title Suit No. 142 of 1993 dismissing the suit with cost. 2. The facts and circumstances leading to the filing of this appeal may be briefly stated. The Appellants herein instituted Title Suit No. 142 of 1993 against the Respondents before the learned Civil Judge (senior division). Court No. 1, West Tripura for decrees for declaration, confirmation of possession and perpetual injunction in respect of the suit land given in the schedule to the plaint The case of the Appellants is that in the year 1950, while they were minors, they came to India from the erstwhile East Pakistan with their mother as refugees and settled down on the suit land by constructing huts thereon. In the year 1970, they shifted their abode half a kilometer away from the suit land but by carrying on their business on the suit land. It is asserted by the Appellants that their possession of the suit land was never disturbed by anyone till 1986 when they for the first time received a notice from the state-Respondents under Section 4 of the Tripura Public Premises (Eviction of Unauthorized Occupation) Act, 1983 (hereinafter called 'the Act') on the ground that the suit land was a Khas land, which they contested and was eventually dropped. It is the case of the Appellants that they were served with the said notice when they had started construction on the suit land and that the construction could not be completed. Ultimately, the state-Respondents on 6.11.1993 demolished the structure and removed the construction materials to police station. It is also the case of the Appellants that the Appellants were recorded as encroacher of the suit land measuring 0.50 decimals in the khatian. The Appellants also alleged that the private Respondents were influential people in the locality and that they had been trying to dispossess the Appellants of the suit land so that they could grab the suit land for their personal purpose. The Appellants maintained that they had acquired title to the suit land by adverse possession. The Appellants also alleged that the private Respondents were influential people in the locality and that they had been trying to dispossess the Appellants of the suit land so that they could grab the suit land for their personal purpose. The Appellants maintained that they had acquired title to the suit land by adverse possession. Accordingly, they were instituting the suit for declaration of their title to the suit land, etc. 3. The Respondent No. 1 to 3 are state-Respondents while the Respondent No. 4 and 5 are private persons, who were originally impleaded as the Defendants No. 4 and 5 in the suit. The state-Respondents contested the suit and filed their written statement of defence. The position taken by the state-Respondents is one of total denial of the allegations of the Appellants. The main contention of the state-Respondents as emerged from their written statement is that the suit land is a government has land and that the Appellants are merely recorded encroachers and, as such, they could never acquired title to the same by adverse possession. The private Respondents also separately filed their written statement, in which, inter alia, they claimed that the appellants did not even have possession of the suit land and that the khatian recording the Appellants as encroachers was not a genuine document, but was made with manipulating by over-writing in some portion of the records. They also disputed the claim of the Appellants that they migrated to India along with their mother in the year 1950. The private Respondents, therefore, prayed that the suit be dismissed with cost. 4. As stated earlier, the suit was dismissed by the learned Civil Judge. The first appeal was also similarly dismissed by the learned District Judge by the concurrent findings to the effect that the Appellant could not prove that the Appellants had been possessing the suit land since 1950 or for 30 years as required by law for acquiring title by adverse possession. It may be noted that this Court while admitting this appeal has formulated the following substantial question of law: Whether the entries in the record of rightly marked as Ext. A showing illegal possession of the Plaintiff-Appellant Gouranga Majumder in respect of the suit land could be doubted and discarded by the courts below? 5. It may be noted that this Court while admitting this appeal has formulated the following substantial question of law: Whether the entries in the record of rightly marked as Ext. A showing illegal possession of the Plaintiff-Appellant Gouranga Majumder in respect of the suit land could be doubted and discarded by the courts below? 5. In the course of hearing of the appeal, Sri A.K. Bhowmik, learned senior Counsel for the Appellants submits that the Courts below have misdirected themselves in coming to the conclusion that Ext. A., which is a copy of the Khatain recording the name of the Appellant No. 2, as the encroacher of the suit land, is doubtful. It is vehemently submitted by the learned Counsel that this document was produced by the State Respondents themselves and, as such, the veracity of such document cannot be ignored or questioned or doubted by the courts below. On the other hand, Mr. U.B. Saha learned Govt. Advocate appearing for the state Respondents with equal force contends, that this document merely recorded the said Appellant as encroacher only from 1964 and considering the fact that a suit was instituted by the Appellant only in 1993, the possession of the Appellant of the suit land could be only for 29 years, which is less than 30 years prescribed by the statute for acquiring title by adverse possession. It is also submitted by him that it is for the Appellant to prove with positive evidence that they have been in uninterrupted and peaceful possession of the suit land for 30 years and having miserably failed to do so in the instant case, the appeal has no merit. He also submits that there is no substantial question of law involved in this appeal. Since there are concurrent finding of facts by both the courts below, which findings do not suffer from perversity, this appeal is not maintainable. Mr. Saha, the learned Govt. Advocate draws my attention to State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 , and Konda Lakshmana Bapuji v. Govt. of A.P. and Ors. (2002) 3 SCC 258 . Mr. P.K. Pal, the learned Counsel appearing for the private-Respondents adopted the same lines of submission made by the counsel for the state Respondents. 6. Saha, the learned Govt. Advocate draws my attention to State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 , and Konda Lakshmana Bapuji v. Govt. of A.P. and Ors. (2002) 3 SCC 258 . Mr. P.K. Pal, the learned Counsel appearing for the private-Respondents adopted the same lines of submission made by the counsel for the state Respondents. 6. At the outset, it is to be reiterated that under Section 100 of the Code of Civil Procedure, the jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involves substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 unless such findings are found to be perverse or illegal. However, where the findings of the courts below has no basis in any legal evidence on record, or is based on a non-reading or mis-reading of evidence, or suffers from any legal infirmity which materially prejudices the case of one of the parties or is perverse, such findings maybe set aside in a second appeal (see Neelakantan v. Millika Begum (2002) 2 SCC 440 ). 7. It is the case of the Appellants that they have been possessing the suit land since 1950 when as minors, they along with their mother came to India from the erstwhile East Pakistan as refugees. The name of the Appellant No. 2 has been recorded as encroacher in the khatian of 1964. In the year 1970, they shifted their residence a about half a kilometre away from the suit land but without abandoning the suit land, which they used as vitis of shop for carrying on business there. According to the Appellants, having been in uninterrupted possession of the suit land since 1950, they have acquired tide by adverse possession by the time they were threatened with eviction by the said notice dated 26.9.1993. The first question for determination is whether the Appellant have proved that they have been in the suit land peacefully, openly and continuously since 1950 or for 30 years prior to the receipt of the said notice. 8. Both courts below have held that no documentary evidence was produced by the Appellants to prove that they have been in possession of the suit land since 1950 or at least since 8.12.1960. 8. Both courts below have held that no documentary evidence was produced by the Appellants to prove that they have been in possession of the suit land since 1950 or at least since 8.12.1960. The appellate Court further observed that no ration card, or citizenship certificate or permanent residence certificate or school certificate or any migration paper or any other paper in respect of their entry into India during 1950 has been produced by the Appellants; nor did they produce any other document to show that they started possessing the suit land since 1950. In so far as Ext. A is concerned, the appellate court after examining the contents there of was of the view that the khatian raised doubt about its genuineness since the hand writing of a particular portion differed from the handwriting appearing in the other portions and also that column No. 21 and 22 indicated that "earlier some other things were written and thereafter deletion was made and then something else was written by different handwriting". It was under circumstances that the appellate Court declined to accept this evidence. Thus, both the Courts below reached the conclusion that it was not safe or proper to rely upon the mere oral evidence of the Appellants to hold that they have been in possession of the suit land since 1950 or for 30 years prior to 1990. 9. I have carefully perused the deposition of the witnesses examined on behalf of the Appellants. It is thus obvious that the aforesaid findings of the Courts below cannot be said to suffer from perversity or illegality. No case of non-reading of or misreading of the evidence on record is discernible from such findings. Both the courts below have rightly held that the oral assertions of their possession over the suit land is not enough to prove acquisition of the title by adverse possession. In the instant case, the suit land is undisputably a government khas land and, as such, the burden of proof that the Appellants have acquired title thereto by adverse possession is indeed heavy. The legal position in respect of proof of perfection of title by adverse possession vis-a-vis public property has been considered and unambiguously laid down by the Apex Court in State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 , which is asunder: 12. The legal position in respect of proof of perfection of title by adverse possession vis-a-vis public property has been considered and unambiguously laid down by the Apex Court in State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 , which is asunder: 12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement that it would be nec vi, nec claim, nec precario - that is the possession required must be adequate in continuity, in publicity and in extent show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secy, of State for India in Council v. Debendra Lal Khan strongly relied on for the Respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil v. Balwant it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the courts must have regard to the animus of the person doing those acts. The Apex Court further observes at para 13 thus: 13. The Apex Court further observes at para 13 thus: 13. The High Court without even a cursory scrutiny of the legality and propriety of the findings in order to ascertain at least as to whether they are based upon any legally acceptable evidence and the necessary legal ingredients of adverse possession' stood substantiated, mechanically seems to have accorded its approval to the claim of title made by the Plaintiff merely on die basis that both the Courts below have found the Plaintiff to be the owner of the property. Indisputably the State was the owner and the question is as to whether its title has been extinguished and the Plaintiff had acquired and perfected title to the same by adverse possession. In order to substantiate such a claim of adverse possession the ingredients of open, hostile and continuous possession with the required animus, as laid down by the courts should be proved for a continuous period of 30 years. Admittedly, the Plaintiff claims to have put up the construction in 1955 and there is absolutely no concrete and independent material to prove the same, except an oral assertion. 10. The nature of the present case is also somewhat similar to the facts of the above referred case. Again in Konda Lakshmana Bapuji v. Govt. of A.P. (2002) 3 SCC 258 , the Apex Court held as follows: 53. The question of a person perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is well-settled proposition that mere possession of the land, however, long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years. 11. Mr. U.B. Saha, the learned senior Counsel for the State-Respondents has cited many other decisions of the Apex Court in support of his submission but the above two decisions are sufficient for adjudication of the instant case. It is crystal clear from the aforesaid decisions that long possession alone is not enough to acquire title by adverse possession and that oral evidence alone is not sufficient to extinguish the title of the state to the suitland. That apart, for reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Even if the Appellant has long possession, such possession without animus possidendi cannot result in ripening title by adverse possession. After all, it must be shown by the person claiming title by prescription that his possession of the suit land is adequate in continuity, in publicity and in extent with the animus of holding the land adverse to the true owner. In the absence of proof as to time and manner in which possession got converted to open, hostile and adverse possession, the claim to adverse possession cannot be upheld (See Marwari Kumar V. Bhagwanpuri Guru Ganeshpuri (2000) 6 SCC 735 . 12. In the instant case, apart from the oral assertion made by the Appellants that they started possessing the suit land in 1950, no concrete details of the nature of their occupation with proper proof thereof can be found. 12. In the instant case, apart from the oral assertion made by the Appellants that they started possessing the suit land in 1950, no concrete details of the nature of their occupation with proper proof thereof can be found. It is true that no proper evidence was led by the state-Respondents to rebut the claim of long possession of the suit land by the Appellants but then it is for the Appellants to establish their case by proper evidence and they cannot take advantage of the weakness of the case of the state Respondents. As held by the Apex Court in Harphool Singh's case (supra), since the suit land is a government has land, the question requires to be considered more seriously. From the evidence available on record, it is crystal clear that no documentary evidence could be produced by the Appellant to relate in any manner the starting point of their occupation of the suit land at least from 1950 to 1964. Considering the nature of evidence adduced by the Appellants, the findings recorded by both the court, below that the Appellants have to prove that they have been possessing the suit land for 30 years adversely against the state Respondents cannot be said to be based on no evidence. Even if it can be assumed that the Appellants were in possession of the suit land from 1950, there is no concrete evidence to show as to when such possession got converted into open, hostile and adverse possession. In other words, where is the animus possidendi of holding the suit land adverse to the Government? 13. It is, however, contended by Mr. A.K. Bhowmik, the learned senior Counsel for the Appellants that both the courts below have ignored Ext. A which resulted in non-suiting the Appellants. As noted earlier, there is no impropriety on the part of both the courts below in not taking into account this evidence as they have serious doubt on the genuineness of the same. On careful examination of the findings of the appellate Court on this aspect, the said findings cannot be one which can be described as irrational so as to warrant the interference of this Court in a second appeal. The fact that there can be two possible views is not a valid ground for setting aside such findings. That apart Ext. On careful examination of the findings of the appellate Court on this aspect, the said findings cannot be one which can be described as irrational so as to warrant the interference of this Court in a second appeal. The fact that there can be two possible views is not a valid ground for setting aside such findings. That apart Ext. A is a khatian prepared by the Revenue Officer in which the name of the Appellant No. 2 is recorded as encroacher of the suit land in 1964. This merely shows that the Appellants were in possession of the suit land since 1964 the Khatian was prepared. Since the cause of action arose on 26.9.1990, as per the plaint, the possession of the suit land by the Appellants from 1964 cannot complete the requisite 30 years for ripening title by adverse possession in 1990. In other words, the period of so-called adverse possession would fall short by six years., There cannot be presumption of continuity of possession backward for so many years. Therefore, on the above peculiar facts. Ext. A. cannot be said to be a document which is of such a character as to create, modify or extinguish the rights and obligations of the parties or otherwise affect their status. Accordingly, it cannot be said that the findings of fact by the court below are arrived at by discarding important relevant evidence. Therefore, the doubt raised by or discarding Ext. A do not raise any question of law, much less, substantial question of law. 14. It is also contended by Mr. A.K. Bhowmik, the learned senior counsel for the Appellants that on the proved facts of this case, it can be said that the Appellants have established their title to the suit land by adverse possession. Strong reliance is placed by the learned Counsel for the Appellants on the following decisions, namely. Hem Chand v. Pearey Lal AIR 1942 PC 64; Munnalal v. Kashibai AIR 1947 PC 15; Hafiz Mohd. v. Swarup Chand Hukum Chand AIR 1948 PC 76; State of W.B. v. Dalhousie Institute Socy AIR 1970 SC 1778 ; Haraballav v. Mohodar AIR 1975 Gau 76 ; Kshitish Chandra Bosh v. Commr. of Ranchi AIR 1981 SC 707 and Bondar Singh v. Nihal Singh (2003) 4 SCC 161 , in support of his contention. v. Swarup Chand Hukum Chand AIR 1948 PC 76; State of W.B. v. Dalhousie Institute Socy AIR 1970 SC 1778 ; Haraballav v. Mohodar AIR 1975 Gau 76 ; Kshitish Chandra Bosh v. Commr. of Ranchi AIR 1981 SC 707 and Bondar Singh v. Nihal Singh (2003) 4 SCC 161 , in support of his contention. I have gone through those decision cited by the learned Counsel for the Appellants. Except for B. Kshitish Chandra's case and Dalhousie Institute Society's case (supra), the said decisions are in respect of the dispute between private parties and, as such, it cannot be said that those decisions can have a bearing on this case. 15. In so far as Dalhousie Institute Society's case (supra) is concerned, it appears that the suit land was granted by the State in favour of the Institute nor in a manner required by law. However, evidence was shown by the Respondents that it was in open, continuous and uninterrupted possession enjoyed by the Institute for over 60 years and that the Institute was treated as owner not only by Municipal Corporation, but also by the Government. It may further be noticed in this case that there was a documentary evidence showing the grant of land by the Appellants. It was on the basis of those evidence that the Apex Court has held that the person in such possession acquired title by adverse possession and was entitled to compensation money for acquisition of such land. This case can be distinguished from the facts of the present case inasmuch as in the instant case, there no scrap of paper or documentary evidence to prove that the Appellants have been in possession of the suit land since 1950. 16. In Kshitish Chandra Bose's case (supra) also, it may be noticed that the starting point of possession of the suit land by the Appellant was on the basis of Hukumnama granted to him by the landlord as far back as 17th April, 1912 and it was on the basis of this evidence that the Appellant was held to be in possession of the suit land from 1912 to 1957 i.e. more than 30 years. On a careful reading of the aforesaid decision of the Apex Court, I am of the view that this case is also distinguishable on facts inasmuch as the instant case is not one in which the appellants can affirmatively prove that they have been in possession of the suit land since 1950. As observed by the Apex Court in Harphool Singh's case (supra), it may be reiterated that since the suit land in this case is a Govt. Khas land, the question requires to be considered more seriously. 17. In the view that I have taken, I do not agree with the submission of the learned Counsel for the Appellants that the Appellants have proved that they have been possessing the suit land for 30 years or that they have acquired their title thereto by prescription. As observed earlier, it is not enough that the Appellants are in possession of the suit land, even for which no concrete evidence is forthcoming but they must also show that there exists the animus possidendi in respect of suit land. 18. The off shoot of the above discussion is that there is no merit in this appeal. Consequently, the appeal stands dismissed. However, considering the facts and circumstances of the case, the parties are directed to bear the cost throughout. Appeal dismissed.