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2004 DIGILAW 483 (GAU)

Tarini Acharyya v. Abhijit Bharali

2004-08-24

B.BISWAS

body2004
JUDGMENT D. Biswas, J. 1. This appeal is directed against the judgment and Decree dated 29.1.2000 and 9.2.2000 respectively passed by the learned Additional District Judge, Jorhat in Title Appeal No. 1 of 1999 affirming the judgment and J Decree dated 18.4.1991 passed by the learned Assistant District Judge, Jorhat in Title Suit No. 53 of 1986. 2. I have heard Mr. M.R. Pathak, learned Counsel for the Appellants and Mr. B.K. Goswami, learned senior Counsel for the Respondents. 3. This Regular Second Appeal was admitted for hearing on 19.6.2000 on the following substantial questions of law: 1. Whether the Defendant can be debarred from taking the plea of adverse possession without first admitting the title of the plaintiff? 2. Whether the right, title and interest of the Plaintiff can be decreed and title can be passed on the Plaintiff without proving the title of his vendor by proving the sale deed, when execution of such sale deed in favour of the vendor of the Plaintiff has been denied? 4. The learned Assistant District Judge decreed the Title Suit No. 53 of 1986 filed by the Respondents for declaration of title over the suit land described in Schedule-A to the plaint and for khas possession. The learned First Appellate Court dismissed the appeal preferred against the said judgment. Being aggrieved thereby, the Defendants have preferred this appeal. 5. The Plaintiff-Respondents case is that the suit land appertaining to the Old Dag No. 286 (new 543) and Old Patta No. 316 (New 291) originally belonged to Radha Nath Phukan of Jorhat Town. Radha Nath Phukan, during his life time, sold the entire land of the above patta to late Chandradhar Sarma on 3.3.1936 for a sum of Rs. 1300/- with delivery of possession. However, the land in question was not mutated in the name of Chandradhar Sarma. The mutation was in the name of one Shri Rajib Acharyya and his mother Smt. Tarini Acharyya, son and wife of late Bipin Chandra Acharyya. Bipin Chandra Acharyya sold the disputed land by sale deed dated 29.12.1965 to Defendants No. 5 and 6, minor sons of one Prafulla Chandra Bezbarua. Shri Shankar Bezbarua, Defendant No. 5 after attaining majority sold the entire land for self and on behalf of Defendant No. 6 to the Plaintiffs by the sale deed dated 6.11.1985. Bipin Chandra Acharyya sold the disputed land by sale deed dated 29.12.1965 to Defendants No. 5 and 6, minor sons of one Prafulla Chandra Bezbarua. Shri Shankar Bezbarua, Defendant No. 5 after attaining majority sold the entire land for self and on behalf of Defendant No. 6 to the Plaintiffs by the sale deed dated 6.11.1985. But the wife (Defendant No. 1) and son (Defendant No. 2) of late Bipin Chandra Acharyya have been un-lawfully occupying the land, despite demands to vacate. 6. The Defendants No. l and 2 (son and wife of late Bipin Chandra Acharyya) in their written statement submitted that the land in question was recorded in their name and they are not aware of any sale made by the late Bipin Chandra Acharyya on 29.12.1965. According to them, there was no delivery of possession to the purchasers, namely - Defendants No. 5 and 6 and that they have been in uninterrupted possession paying revenue since 1936. It is further averred that the long uninterrupted possession of the land with their own structures thereon has ripened into title. 7. The sketch below exhibits the devolution of the land from 1936: Radha Nath Phukan Sold on 3.3.1936 To Chandra Dhar Sharma Inherited by Bipin Chandra Acharyya (son) Sold on 29.12.1965 To Dr. Gautam Bezbarua [Def No.6] Shankar Bezbarua [Def No.6] Sold on 6.11.1985 To Plaintiffs 8. From the averments made in the plaint and the written statement and the sketch above, it would appear that late Bipin Chandra Acharyya, son of late Chandradhar Sarma was the lawful owner of the suit land. He sold the suit land to Defendants No. 5 and 6 (vendors of the Plaintiffs) by sale deed dated 29.12.1965. Defendants No. 5 and 6 did not exert their right over the suit land and after 20 years sold the land to the Plaintiffs by the sale deed dated 6.11.1985. They also did not contest the suit. The question, therefore, arises as to whether Dr. Gautam Bezbarua and Shri Shankar Bezbaruah, Defendants No. 5 and 6, had any saleable interest over the suit land on the date of execution of the sale deed on 6.11.1985 in favour of the Plaintiffs. 9. The Defendants No. 1 and 2 in para-6 of their written impliedly admitted the sale of the land to the Plaintiffs by their predecessor-in-interest but asserted acquisition of title because of long and uninterrupted possession. 9. The Defendants No. 1 and 2 in para-6 of their written impliedly admitted the sale of the land to the Plaintiffs by their predecessor-in-interest but asserted acquisition of title because of long and uninterrupted possession. Therefore, the first question formulated at the time of admission of the appeal becomes redundant so far the appeal at hand is question. 10. With regard to the second question, it has to be examined whether the Plaintiffs succeeded in establishing the title of their vendors i.e. Defendants No. 5 and 6. Late Bipin Chandra Acharyya inherited the land from his father late Chandradhar Sarma and there is no dispute to his title. Late Bipin Chandra Acharyya sold the land to the Defendants No. 5 and 6 by registered sale deed on 29.12.1965 (Ext. 3). The Defendants No. 5 and 6 purchased the suit land. There is nothing on record to show that they occupied the land and were in possession thereof after purchase. They in turn sold the land to the Plaintiffs by registered sale deed dated 6"' November, 1985 (Ext. 1). The sale deed was executed after 19 years from the date of purchase. The question is, whether the vendors of the Plaintiffs, namely Defendants No. 5 and 6 could alienate any subsisting right, title and interest over the suit land. They (Defendant No. 5 and 6) did not make any attempt to recover possession of the suit land after purchase. No legal action was initiated against the Defendants (Defendants No. 1 and 2) for their eviction. Long 20 years thus closed and during this period and till date the Defendants No. l and 2 have been in possession of the suit land. The Defendants No. 5 and 6 were minors at the time of purchase in 1965 and, therefore, could not have possessed the land of their own. There is no pleading on record to the effect that possession was delivered to the next friend of the minors or any other person on their behalf after sale in 1965. The right, title and interest of the vendors (Defendants No. 5 and 6) stood extinguished for their failure to exert their right before appropriate forum within 12 years from the date of purchase. 11. The right, title and interest of the vendors (Defendants No. 5 and 6) stood extinguished for their failure to exert their right before appropriate forum within 12 years from the date of purchase. 11. In para 12 of the plaint, the Plaintiffs submitted that the jurisdiction for the suit arise on and from 6.11.1985 when the land was purchased by them and from the date of encroachment of the suit land by the Defendants No. 1 to 4. But no specific date has been given by the Plaintiffs as to when they were disposed by the Defendants. The sale deed (Ext. 3) executed by Bipin Chandra Acharyya contain a recital about delivery of khas possession to the purchasers (Defendants No. 5 and 6). But the facts remains that after death of Chandradhar Sarma, Bipin Chandra Acharyya and his wife and son continued with the possession. After sale by Bipin Chandra Acharyya, his wife and son, Defendants No. 1 and 2, also continued with the possession. Therefore, at no point of time the Defendants No. 5 and 6 could have taken over the possession of the suit land. That apart, the Plaintiffs in para 4 of the plaint admitted that the land stood mutated in the name of the Defendants since beginning which leads to the presumption that the Defendants No. 1 and 2 have been in possession of the suit land all along. No attempt was made to get the revenue record (Jamabandi) corrected during this long span of tirne. There is also no recital in the plaint that Bipin Chandra Acharyya delivered vacant possession of the suit land to Defendants No. 5 and 6 after execution of the sale deed on 29.12.1965. 12. A suit based on title for possession is governed by the principles of Article 65 of the Limitation Act. The limitation prescribed therein is 12 years from the date of cause of action. The vendors of the Plaintiffs i.e. Defendants No. 5 and 6 purchased the land on 29.12.1965. They did not come forward to assert their right to possess the land on the basis of title. In para-8 of the plaint, it is simply stated that the Defendants are in occupation of the land wrongfully without any title. There is no specific averments in the plaint as to the manner in which the Defendants No. 1 and 2 disposed them and the dates thereof. In para-8 of the plaint, it is simply stated that the Defendants are in occupation of the land wrongfully without any title. There is no specific averments in the plaint as to the manner in which the Defendants No. 1 and 2 disposed them and the dates thereof. The Courts below wrongly came to the conclusion that the vendors of the Plaintiffs were in possession and they have been disposed by the Defendants No. 1 and 2. The evidence on record (only of P.W.-1) are also not adequate enough to come to the conclusion that the vendors of the Plaintiffs were in possession and that they had handed over vacant possession of the land to the Plaintiffs. The evidence of alleged dispossession of the Plaintiffs by the Defendants without any specific plea in the plaint is of no consequence since Defendants No. 5 and 6 did not assert their right in any manner to recover possession within 12 years from the date of purchase of the land from Bipin Chandra Acharyya It was, therefore, incumbent on their part to assert their right to recover possession within 12 years. Their right, title and interest, if any, stood extinguished by operation of the law of limitation. Obviously they had no saleable interest over the suit land on 6.11.1985, when the sale deed (Ext. 1) was executed in favour of the Plaintiffs. The Courts below did not apply their mind in proper perspective with reference to the provisions of Article 65 of the Limitation Act. The Defendants are in possession of the suit land from the time of their predecessor-in-interest when Radha Nath Phukan sold the land to Chandradhar Sarma in the year 1936. The mutation of the names of Defendants No. 1 and 2 in the revenue records is suggestive of their continued possession. Situated thus, in the absence of any pleading in the plaint about delivery of possession to the Defendants No. 5 and 6, it was obviously wrong on the part of the Courts below to rely upon the evidence of P.W. 1 in order to hold that the Defendants No. 5 and 6 were in possession of the land till their alleged dispossession therefrom. 13. 13. From above, it is clear that the Defendants No. 5 and 6 had no right, title and interest over the suit land on the date of execution of the sale deed dated 6.11.1985 (Ext.1) in favour of the Plaintiffs. Therefore, question of declaration of Plaintiffs' title over the suit land with consequential relief for recovery of possession does not arise. The judgments of the Courts below appear to be perverse for non-application of mind with regard to the provisions of Article 65 of the Limitation Act. The second question, accordingly, stands answered in favour of the Appellants. 14. In the result, the appeal is allowed and the judgments and Decrees passed by the learned Courts below are hereby set aside. Consequently, the Title Suit No. 53 of 1986 is dismissed. 15. The parties are directed to bear their respective costs. Appeal allowed