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2004 DIGILAW 728 (CAL)

DHIRENDRA CHANDRA KAR v. SK. PANCHU, JAMAL

2004-11-19

S.K.GUPTA

body2004
S. K. GUPTA, J. ( 1 ) THESE appeals have been preferred against the judgment passed by the Additional District Judge, Alipore in Title Appeal Nos. 92 and 93 of 1999 reversing the judgment passed by the Civil Judge, Senior Division in Title suit No. 5 of 1993 and Title Suit No. 2 of 1995. ( 2 ) BOTH the suits and the appeals were heard analogously. Dhirendra chandra Kar being the plaintiff filed Title Suit No. 5 of 1993 against the defendant Sk, Panchu and Others and Sk. Panchu filed Title Suit No. 2 of 1995 against the defendants. In the Title Suit No. 5 of 1993 Dhirendra Chandra kar prayed for partition of his share in the suit property. On the contrary Sk. Panchu filed the Title Suit No. 2 of 1995 praying for declaration and permanent injunction in respect of the entire suit property. It is the case of the parties that Dag No. 297 of Khatian No. 75 of Mouza Arakpur measuring about. 03 decimals of land which was formerly Dag No. 176 and now 176/1 Prince anwar Sha Road originally belonged to one Jiad AM Mondal. Sk. Panchu obtained. 01 decimals of land of the suit property from Jiad Ali Mondal at an annual rent of Rs. 7i- only and Sk. Panchu in his turn also executed a kabuliyat in favour of Jiad Ali Mondal on 05. 12. 1945- Said patta was executed by Jiad Ali Mondal on 07. 12. 1945. After the settlement, Sk. Panchu started possessing the said. 01 decimal of land of the suit property by way of making structures. Jiad Ali died leaving his son Manu Mondal who was at that time a minor and one daughter named kurni Bibi. The defendant. Sk. Panchu being the maternal uncle of Manu Mondal and Kurni Bibi, used to look after their affairs. After attaining majority, Manu Mondal got vacant possession of the four shop rooms and started business there. ( 3 ) IT is the specific case of Sk. Panchu that after obtaining patta in respect of. 01 decimal of land from Jiad Ali, he was in possession of the said land and subsequently he became the owner of that land by operation of law. It is the specific case of Sk. Panchu that when there was the great communal riot in Calcutta in the year 1950, Jiad Ali left or abandoned his. 01 decimal of land from Jiad Ali, he was in possession of the said land and subsequently he became the owner of that land by operation of law. It is the specific case of Sk. Panchu that when there was the great communal riot in Calcutta in the year 1950, Jiad Ali left or abandoned his. 02 decimals of land in respect of the suit property and settled at Garia. Immediately thereafter in the month of February, 1950 Sk. Panchu took possession of the said. 02 decimals of land and raised construction thereupon. It is his specific case that since then he was in continuous, uninterrupted peaceful possession and enjoyment of the entire. 03 decimals of land. He has further claimed that his only daughter was married with defendant No. 2 Manu Mondal whom he kept in his house to look after his cycle repairing shop situated in the suit premises. According to Sk. Panchu. defendant No. 2 filed an Ejectment Suit against the defendant No. 1 D. C. kar. But ultimately said suit was withdrawn. He has alleged that both the defendants, in collusion and in conspiracy with each other have created sham, fictitious, false, illegal and collusive sale deed dated 22. 06. 1987 allegedly executed by the defendant Nos. 2 and 3 in favour of the defendant No. 1 in respect of the suit property. Sk. Panchu, by filing the suit, has claimed that he is the owner of the entire 03 decimals of land and as such he has prayed for declaration of his title and for permanent injunction. ( 4 ) SO, admittedly it appears that in both the suits same suit property is involved. While Dhirendra Chandra Kar has claimed that he purchased the suit property from the defendant Nos. 2 and 3, that is, Manu Mondal and Kurni bibi, and as such, he became the owner of the entire suit property, on the contrary it is the specific case of Sk. Panchu that he has acquired title by virtue of the patta obtained by him from Jiad Ali in respect of. 01 decimal of the suit property, it is his further case that he obtained title in respect of. 02 decimals of the suit property by way of adverse possession. So, it appears, that both the parties are claiming title in respect of the entire suit property. 01 decimal of the suit property, it is his further case that he obtained title in respect of. 02 decimals of the suit property by way of adverse possession. So, it appears, that both the parties are claiming title in respect of the entire suit property. That question is required to be resolved in these two appeals. The learned trial Court, after recording of the evidence and after considering all the materials- on-record was pleased to hold that Sk. Panchu had title in respect of. 01 decimal of land while Dhirendra Chandra Kar has right, title and interest in respect of. 02 decimals of land of the suit property. Being aggrieved, Sk. Panchu preferred an appeal and the learned First Appellate Court, by his judgment was pleased to allowthe appeals in part. He was pleased to confirm the decision of the learned trial Court in respect of the declaration of Sk. Panchu's title for the. 01 decimal of land of the suit property. But at the same time he was pleased to set aside the finding of the learned trial Court that Dhirendra Chandra Kar has right, title and interest in respect of. 02 decimals of the suit property and consequently he was not entitled to get a preliminary decree for partition as passed by the Court below. He was also pleased to declare right, title and interest of Sk. Panchu in respect of the rest. 02 decimals of the suit land. In other words the learned First Appellate court was pleased to hold that Sk. Panchu had acquired good title in respect of ,01 decimal of land by virtue of his obtaining patta from Sk. Jiad AH and he also became the owner of the remaining. 02 decimals of the suit property by way of adverse possession. ( 5 ) BEING aggrieved and dissatisfied with the said finding of the learned first Appellate Court, these two Second Appeals have been preferred and both the appeals have been heard analogously, At the time of the hearing of the appeal, following substantial questions of law were framed :-1. Whether the Appeal Court below is totally wrong in reversing the judgment of the Trial Court by granting a decree on the ground that acquisition of title of. Whether the Appeal Court below is totally wrong in reversing the judgment of the Trial Court by granting a decree on the ground that acquisition of title of. 02 decimals of land by adverse possession when no specific issue was framed regarding acquisition of title by adverse possession on the basis of ouster ?2. Whetherthe permissive possession can be converted into an adverse possession ?3. Whether the judgment of the Appeal Court below is perverse, surmises and conjecture and not based on legal evidence ? ( 6 ) AT the very out set, it may be pointed out that the learned trial Court held that Sk. Panchu acquired good title in respect of. 01 decimal of land of the suit property by virtue of his obtaining patta from Jiad Ali and also by operation of law. This finding, has been affirmed by the learned First Appellate court. So, concurrent finding in respect of the title of Sk. Panchu for this. 01 decimal of land is in favour of Sk. Panchu. This concurrept findings, in my opinion, cannot be interfered in this Second Appeal. Moreover, it appears that this finding of the First Appellate Court regarding. 01 decimal of land in favour of Sk. Panchu has not been seriously challenged in these two Second appeals. Learned Advocate for the appellant also conceded that he is not disputing this finding of the learned First Appellate Court in respect of the. 01 decimal of the suit property. So, this finding, of both the Courts below, in my opinion, should be confirmed. ( 7 ) NOW, the question that is to be considered, is, in respect of the remaining. 02 decimals of the suit property. We are to come to a definite decision as to who should be declared as owner in respect of the said. 02 decimals of the suit property. ( 8 ) ADMITTEDLY, the entire suit properties belonged to one Jiad Ali Mondal. There is no dispute that his properly was inherited by his son Manu Mondal and daughter Kurni Bibi. They are the defendant Nos. 2 and 3 of the present suit. It is also the admitted position that this defendant Nos. 2 and 3 executed a sale deed in respect of the entire suit property in favour of the defendant no. 1. They are the defendant Nos. 2 and 3 of the present suit. It is also the admitted position that this defendant Nos. 2 and 3 executed a sale deed in respect of the entire suit property in favour of the defendant no. 1. By virtue of the said sale deed, the defendant No. 1 is claiming title over the suit property. I have already pointed out that it has been established that Sk. Panchu obtained title in respect of. 01 decimal of land by virtue of his patta obtained from Jiad Ali Mondal and this fact has practically been conceded by the learned Advocate for the appellant at the time of hearing. So we are to consider now, whether defendant No. 1 obtained title in respect of remaining. 02 decimals of the suit property. Apparently, it appears that the defendant No. 1 acquired valid title by way of purchase from the heirs of the original owner Jiad Ali Mondal. But the respondent Panchu claims that before the execution of the said sale deed by the defendant Nos. 2 and 3 in favour of the defendant No. 1, he acquired right, title and interest over the said. 02 decimals of suit property by way of adverse possession. So, onus lies upon the respondent Sk. Panchu to prove that actually he acquired right, title and interest over the suit property by way of adverse possession. Let us now see how far he has been able to discharge the said onus. The respondent has claimed that at the time of communal not at Calcutta in the year 1950, Jiad Ali left the suit property and settled elsewhere and since then Sk. Panchu, the respondent started possessing the suit property by making construction thereupon. But it appears that this Sk. Panchu is the maternal uncle of the defendant Nos. 2 and 3 and he used to look after their affairs including their property on their behalf. Admittedly, in the year 1950 the defendant Nos. 2 and 3 were minors and they were under the care of respondent Sk. Panchu. There is also no dispute that the daughter of Sk. Panchu was married with the defendant No. 2. 1 have also pointed out that sk. Panchu being the maternal uncle of the defendant Nos. 2 and 3 used to look after all their affairs. As such, it cannot be said that Sk. Panchu. There is also no dispute that the daughter of Sk. Panchu was married with the defendant No. 2. 1 have also pointed out that sk. Panchu being the maternal uncle of the defendant Nos. 2 and 3 used to look after all their affairs. As such, it cannot be said that Sk. Panchu, by looking after the properties of the defendant Nos. 2 and 3 on their behalf, acquired title in respect of the suit property by way of adverse possession. It is the settled principle that a person who asserts adverse possession is bound to bring the same to the notice of the actual owner to prefer his claim of title by way of adverse possession. He must prove that the possession of the suit property by him was adequate in continuity, publicity and in assertion of his own right against the real owner. It must be open and not in concealment. In view of the fact that the defendant Nos. 2 and 3, since they were minors, were looked after by Sk. Panchu not only in respect of their personal affairs but also in respect of their properties, which they inherited from their father, it cannot be said that by looking afterthe properties of the defendant Nos. 2 and 3, Sk. Panchu acquired title in respect of the suit property by way of adverse possession. Long possession of a property does not necessarily mean adverse possession by a person who is looking after the said property on behalf of the actual owners. Much has been argued on the Exhibit 'a' which is a document authorising Sk. Panchu to collect rent on behalf of defendant No. 2 Manu Mondal. By the said document it has been alleged that Manu Mondal had given a go by to his right, title and interest in respect of the suit property in favour of Sk. Panchu stating therein that he had no objection to collect rent by Sk. Panchu from the tenant of the premises. But this letter of authority, allegedly issued by defendant No. 2, in favour of Sk. Panchu, cannot be considered to be a renunciation of title in favour of Sk. Panchu. By collecting rent one cannot become an owner of a property. Moreover, I have already pointed out that afterthe death of Jiadali, Manu Mondal and Kurni Bibi became the owners of the suit property. Panchu, cannot be considered to be a renunciation of title in favour of Sk. Panchu. By collecting rent one cannot become an owner of a property. Moreover, I have already pointed out that afterthe death of Jiadali, Manu Mondal and Kurni Bibi became the owners of the suit property. In the Exhibit 'a' there is no signature of kurni Bibi. So, question of acquiring title by this document by Sk. Panchu does not arise at all. ( 9 ) IN the decision reported in 1996 SC at page 869, Dr. Mahesh Chand sharma v. Smt. Raj Kumari Sharma and Others, it has been observed to the effect at para 36 "that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. " ( 10 ) THAT apart, in the decision reported in AIR 1971 Supreme Court at page 996, The State Bank of Travancore v. Arvindan Kunju Panickerand Others, it has further been observed, "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 owners for a period of 12 years or more. " ( 11 ) IN this respect the decision reported in AIR 1987 Kerala 42, Rosily mathew and Others v. Joseph is also relevant wherein it has been laid down "a person who claims title to the property by adverse possession, must definitely allege and prove how and when adverse possession commenced. What was the nature of his possession and whether the fact of his adverse possession was known to the real owner. A mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title is not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. " ( 12 ) IN this respect the decisions reported in AIR 1964 Supreme Court page 1254, S. M. Kahm v. Mst. Bibi Sakina and 2003 (7) Supreme Court Cases page 481, Deva (dead) through LRs. v. Sajjan Kumar (dead) by LRs. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. " ( 12 ) IN this respect the decisions reported in AIR 1964 Supreme Court page 1254, S. M. Kahm v. Mst. Bibi Sakina and 2003 (7) Supreme Court Cases page 481, Deva (dead) through LRs. v. Sajjan Kumar (dead) by LRs. , AIR 2002 SC page 606, Darshan Singh and Others v. Gujjar Singh (dead) by lrs. and Ors. , AIR 1976 Ca! page 55, Premendu Bhusan Mondal v. Sripati ranjan Chakravarty, are also relevant. Same principle has been decided in those decisions. In the decision reported in 84 CWN page 697, Dhananjay patra and Ors. v. Amiya Kumar Basu Chaudhuri and Others it has also been clearly laid down that adverse possession cannot be claimed against a co- sharer unless there is 'ouster'. It is the case of Sk. Panchu that by obtaining the patta from Jiad Ali he became the owner of. 01 decimal of the suit properly. So, it necessarily mean that by virtue of said patta he became a co-sharer with jiad Ali in respect of the suit property. Subsequently, it is his case, that he acquired valid title in respect of the other portion of the property by way of ouster. But the evidence as adduced by Sk. Panchu does not prove his claim of ouster of the original owner or his heirs from the suit property. There is no corroborative evidence of Sk. Panchu in this respect and as such I am constrained to hold that sk. Panchu has failed to prove that he acquired right, title and interest in respect of the rest. 02 decimals of the suit property by way of adverse possession by ousting the real owners. In this respect I fully agree with the finding of the learned trial Court. The learned First Appellate Court wrongly based his decision relying on the Exhibit 'a'. In his judgment, the learned First Appellate Court observed to the effect "exhibit 'a' is such a document which conclusively gives us an impression that he never exercised his right to the suit property or ever possessed the same. The learned First Appellate Court wrongly based his decision relying on the Exhibit 'a'. In his judgment, the learned First Appellate Court observed to the effect "exhibit 'a' is such a document which conclusively gives us an impression that he never exercised his right to the suit property or ever possessed the same. " ( 13 ) ON the basis of the said letter, it appears that the learned First Appellate court practically came to the conclusion that Manu Mondal and Kurmi Bibi have no possession over the suit property for more than 12 years and whatever right they had, said right was surrendered in favour of Sk. Panchu. But I have already pointed out that Manu Mondal was not the sole owner of the suit property. Kurni bibi was also an owner in respect of suit property. The letter in question which has been marked as Exhibit 'a', did not disclose that this Kurni Bibi also joined hands with Manu Mondal in surrendering her right, title and interest in respect of the suit property in favour of Sk. Panchu. Moreover, from the Exihit 'a' it does not appear that Manu Monda! allegedly surrendered his right, title and interest in respect of the suit property in favour of Sk. Panchu. Simply it has been stated therein that he had no objection to collect rent from the tenant by Sk. Panchu as a sole landlord. It has further been stated in the said letter that he had no objection if the tenants made direct payment of rent to Sk. Panchu. This shows that the letter actually gave authority in favour of Sk. Panchu to collect rent of the suit premises on behalf of Manu Mondal. Under such circumstances, I fully agree with the finding of the learned trial Court that by his letter it can at best be said that Manu Mondal authorised Sk. Panchu to take rent of the suit premises as landlord. As perthe Tenancy Law, in order to be a landlord it does not necessarily mean that the said person should also be the owner of the premises in question. Simply because a person is a landlord of the suit premises, he cannot be automatically treated as owner of the suit premises. Whatever right Sk. Panchu acquired in respect of the suit property by virtue of Exhibit 'a', was his right to collect rent. Simply because a person is a landlord of the suit premises, he cannot be automatically treated as owner of the suit premises. Whatever right Sk. Panchu acquired in respect of the suit property by virtue of Exhibit 'a', was his right to collect rent. As because he collected rent for a long time, that does not necessarily mean that he has become an owner by way of adverse possession. Moreover, i have already pointed out that the letter in question was not written by Kurni Bibi. So her right cannot be extinguished by this alleged letter. Learned First Appellate court also based his decision on the fact that Sk. Panchu paid rent of the suit property before the Municipal Authority. But payment of Municipal Tax does not mean that Sk. Panchu acquired title in respect of the suit property. It has been established by way of evidence that this Manu Mondal and Kurni Bibi are direct relations of Sk. Panchu. In fact, it is the admitted position that when they were minors, they were brought up by Sk. Panchu. Moreover, it is undisputed that the daughter of Sk. Panchu has been married with Manu Monda ). So it is clear that whatever steps Sk. Panchu took in respect of the suit property were all taken on behalf of his relatives viz. Manu Mondal and Kurni Bibi. In other wards, it can be said that Sk. Panchu looked after the suit property so far as the. 02 dicimals is concerned, on behalf of Manu Mondal and Kurni Bibi, He, in this respect, acted as representative of those two persons so far as the suit property is concerned. The interest of Sk. Panchu cannot be said to be hostile against the interest of manu Mondal and Kurni Bibi. He also did not possess the suit property openly and by way of assertion of hostile title against Manu Mondal and Kurni Bibi. So it cannot be said that Sk. Panchu acquired right, title and interest in respect of the. 02 decimals of the suit property by way of adverse possession. The decision of the learned First Appellate Court, in this respect appears to me to be incorrect and to my mind the learned Trial Court was perfectly justified in holding that Sk. So it cannot be said that Sk. Panchu acquired right, title and interest in respect of the. 02 decimals of the suit property by way of adverse possession. The decision of the learned First Appellate Court, in this respect appears to me to be incorrect and to my mind the learned Trial Court was perfectly justified in holding that Sk. Panchu failed to prove that he acquired valid title by way of adverse possession so far as the suit property is concerned. First Appellate Court, failed to appreciate that Sk. Panchu possessed the suit property by way of implied permission of the actual owners. This implied permission cannot give rise to a claim of adverse possession in favour of Sk. Panchu. The decision of the First Appellate Court, in this respect, appears to me to be not proper and it is the result of non-appreciating the evidence on record properly. ( 14 ) THEREFORE, from my above discussion, I am of opinion, that Sk. Panchu, the respondent, has been able to prove that he has acquired valid title in respect of. 01 decimal of the suit property. But his claim of title in respect of the rest. 02 decimals of the suit property cannot be allowed as he failed to prove that he acquired valid title in respect of that property by way of adverse possession. It is the admitted position that Manu Mondal and Kurni bibi were the owners in respect of that. 02 decimals of the suit property which has been purchased by the appellant Dhirendra Chandra Kar. In fact, this appellant has purchased the entire suit property. But as I have already pointed out that Sk. Panchu acquired title in respect of. 01 decimal of land, as decided by both the Courts below so, Dhirendra Chandra Kar cannot get any declaration in respect of that property. But so far as the balance. 02 decimals of land of the suit property is concerned, I hold that this appellant dhirendra Chandra Kar has been able to prove that he has purchased the same from the actual owners and as such he has acquired good title in respect of the said property. As the appellant Dhirendra Chandra Kar also has been able to prove that Sk. As the appellant Dhirendra Chandra Kar also has been able to prove that Sk. Panchu refused to partition the suit property amicably, so the appellant is also entitled to get a decree for partition, as awarded by the learned trial Court. In this respect I fully agree with the finding of the learned trial Court and to my mind, it was not proper on the part of the learned First Appellate Court to reverse the decision of the trial Court. Consequently, the order, as passed by the learned First Appellate Court, is liable to be set aside and that of the trial Court should be confirmed. ( 15 ) IN the result, both the appeals are allowed in part on contest. The judgment and decree passed by the learned Additional District Judge, Alipore in 92 and 93 of 1999 is set aside. The finding of the learned First Appellate Court that Sk. Panchu has right, title and interest in respect of. 01 decimal of the suit property, is confirmed. But his finding that Sk. Panchu is the owner of. 02 decimals of the suit property, is set aside. The judgment and decree passed by the Civil judge, Senior Division, 9th Court, Alipore passed in Title Suit No. 5 of 1993 and title Suit No. 2 of 1995 is confirmed. Send back the Lower Court Record to the Court below at once.