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2008 DIGILAW 841 (CAL)

Alipore Tarun Dal v. Malati Pore

2008-08-21

Jyotirmay Bhattacharya

body2008
JUDGMENT: 1. THIS Second Appeal is directed against the judgment of reversal dated 16th december, 1994 passed by the learned Assistant District Judge, 2nd Court at alipore in Title Appeal No. 256 of 1994 reversing the judgment and decree dated 30th June, 1994 passed by the learned Munsif, 2nd Court at Alipore in Title Suit no. 471 of 1984, at the instance of the defendant/appellant herein. Let me now give a short background of this case leading to the filing of the instant appeal. The predecessor-in-interest of the plaintiffs/respondents filed a suit for eviction against the defendant/appellant herein on termination of the licence granted by the erstwhile owner of the suit property in favour of the said licensee. It was alleged in the plaint that by virtue of partition deed, Moni Bhusan Purkait and his brother Dhirendra Bhusan Purkait became the owner of the suit property. The original plaintiff namely Kunja Behari Pore who was originally a tenant in respect of the suit premises purchased the suit property from Moni bhusan Purkait and Dhirendra Bhusan Purkait by two registered deed of sale being exhibit 1 and exhibit 2. The sale deed being exhibit no. 1 was registered sometime in 1981 and the sale deed being exhibit 2 was registered sometime in 1984. It was further stated therein that the defendant was inducted as a licensee in the suit premises by the vendors of the original plaintiff sometime in 1971. After purchasing the suit property the original plaintiffs requested the defendant to vacate the suit premises repeatedly but the defendant did not adhere to the said request. Hence, the instant suit for eviction was filed after termination of licence of the defendant. 2. THE defendant/appellant contested the said suit by filing written statement denying its induction as licensee in the suit property by the vendors of the plaintiffs. The defendant, in fact, claimed title in the suit property by way of adverse possession. The defendant claimed that the defendant is in possession of the suit property since 1961. The defendant further claimed that at the time when the defendant entered into the suit room, the defendant club was known as jagrata Sangha. The said club was subsequently merged with Tarun Dal and was registered as a society under the West Bengal Societies" Registration Act. The defendant further claimed that at the time when the defendant entered into the suit room, the defendant club was known as jagrata Sangha. The said club was subsequently merged with Tarun Dal and was registered as a society under the West Bengal Societies" Registration Act. The defendant, thus, claimed that the said defendant is possessing the suit room adversely for more than 12 years without any interference and as such, the suit should be dismissed. During the pendency of the said suit original plaintiff died and his heirs were substituted in the place of the deceased plaintiff. The said substituted heirs of the deceased plaintiff are the respondents in the instant appeal. The parties have led their evidence in the suit in support of their respective claims in the suit. The learned Trial Judge after considering the pleadings of the parties as well as their evidence, came to the conclusion that the plaintiffs have failed to prove that the vendor of the original plaintiff granted the alleged licence in favour of the defendant. Though the learned Trial Judge held that the original plaintiffs succeeded in proving their title in the suit property by virtue of purchase of the suit property from the erstwhile owners thereof and have also held that the defendant has failed to prove acquisition of its title by way of adverse possession, still then, the learned Court below refused to grant a decree for eviction in favour of the plaintiffs/respondents as the grant of licence by the plaintiffs" vendor in favour of the defendant could not be proved in this suit. Thus, the said suit was dismissed on contest. 3. BEING aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiffs/respondents preferred an appeal being title Appeal No. 256 of 1994 before the learned Assistant District Judge, 2nd court at Alipore. The said appeal was ultimately allowed on contest and, thus, a decree for eviction was passed against the defendant/appellant herein. While allowing the said appeal, the learned Appeal Court also declared that the original plaintiff became the owner of the suit property by virtue of his purchase from the erstwhile owners. The said appeal was ultimately allowed on contest and, thus, a decree for eviction was passed against the defendant/appellant herein. While allowing the said appeal, the learned Appeal Court also declared that the original plaintiff became the owner of the suit property by virtue of his purchase from the erstwhile owners. Such conclusion was arrived at by the learned Appeal Court by taking note of the sale deeds which were executed by the erstwhile owners in favour of the original plaintiff being exhibit 1 and exhibit 2 coupled with the deed of partition being exhibit 10 executed amongst the cosharers of the original owners thereof. On consideration of the covenant made in the said sale deeds being exhibit 1 and exhibit 2, the learned Appeal Court held that the defendant was inducted as a licensee in the suit room by the erstwhile owner. The learned First Appellate Court also held that the defendant club failed to prove acquisition of its title in the suit room by way of adverse possession as no competent witness came forward to depose on behalf of the defendant club to prove its claim for acquisition of title in the suit property. The evidence of the D. W. 1 and D. W. 2 was not believed by the learned First Appellate court as their evidence are all based on hearsay evidence. The learned First appellate Court has drawn adverse inference against the defendant for non-examination of the competent witness of the defendant in the suit. The defendant's plea of their initial entry in the suit room by force was also ignored by the Courts below as there was no foundation of such plea in its written statement. Thus, the learned First Appellate Court ultimately held that the defendant is a licensee in the suit room and the said defendant has no right to occupy the said room after termination of its licence. Hence, a decree for eviction was passed against the said defendant by the learned First Appellate Court. 4. THE propriety of the said judgment and decree is under challenge in this second Appeal at the instance of the defendant/appellant herein. The instant appeal was admitted for hearing by the Division Bench of this Hon'ble Court. At the time of admission of the instant appeal the following three substantial questions of law were formulated:- 1. 4. THE propriety of the said judgment and decree is under challenge in this second Appeal at the instance of the defendant/appellant herein. The instant appeal was admitted for hearing by the Division Bench of this Hon'ble Court. At the time of admission of the instant appeal the following three substantial questions of law were formulated:- 1. For that even assuming but not admitting that the defendant in the suit have failed to prove their adverse possession, the Lower appellate Court was wrong in not holding that factum of acquiring title by way of adverse possession is not a consideration relevant for deciding a suit for ejectment of a licensee and that proof of creation of licence is a condition precedent for passing a decree of eviction. 2. For that the Lower Appellate Court failed to consider that in absence of evidence of material witnesses namely the vendors, the plea of creation of licence should be disbelieved. 3. For that the Lower Appellate Court should have held that the judgment and order passed by the learned Munsif is based on proper appreciation of evidence available on record as also on sound principles of law and that, therefore, no interference with the same is called for in appeal. Let me now consider the merit of the instant appeal with reference to the aforesaid substantial questions of law. Heard Mr. Bhaskar Ghosh, learned Senior Counsel, appearing for the appellant and Mr. Dasgupta, learned Senior Counsel, appearing for the respondent. Considered the materials on record including the judgments and decrees of both the Courts below. Mr. Ghosh challenged the said decree of the learned First Appellate Court by submitting that the learned First Appellate Court erred in holding that the grant of licence in favour of the defendant by the vendors of the original plaintiff has been proved even though none of the plaintiffs who deposed in the suit had any personal knowledge about the nature of such induction nor the erstwhile owner who had the knowledge about the nature of such induction has come forward to prove the plaintiffs" claim for induction of the defendant in the suit property as a licensee therein. Mr. Mr. Ghosh further submitted that the covenant contained in the sale deed, relating to the induction of the defendant as a licensee therein, cannot be used as an admission against the defendant as the defendant was not a party to the said deed. Mr. Ghosh, thus, submitted that the learned First Appellate Court erred in declaring the defendant as licensee in the suit property by relying upon such covenant in the deed of sale being exhibit 1 and exhibit 2. Mr. Ghosh further submitted that since the initial entry of the defendant in the suit premises was obtained by the defendant by exerting force, the learned Court below ought to have held that the defendant has acquired title in the suit property by way of adverse possession particularly when the defendant has proved its possession therein for more than 12 years. By referring to the certificate of registration of the defendant club as society under the Societies" Registration Act, Mr. Ghosh submitted that the defendant's title in the suit property by way of adverse possession should have been declared by the learned First Appellate Court. Mr. Ghosh, thus, prayed for setting aside of the decree of the learned First Appellate Court. 5. ON the contrary Mr. Dasgupta submitted that if the plaintiffs succeed in establishing their title in the suit property in a suit for eviction of a trespasser based on title, the Court has no other alternative but to pass a decree for eviction against the trespasser who has failed to establish acquisition of its title by way of adverse possession. Mr. Dasgupta, thus, submitted that when the defendant failed to prove acquisition of its title by way of adverse possession, the learned first Appellate Court rightly passed a decree for eviction in favour of the plaintiffs who are the lawful owner thereof. Mr. Dasgupta further submitted that since the plaintiffs have succeeded in proving their title in the suit property they are entitled to get a decree for eviction against the defendant notwithstanding the fact that they have failed to prove the grant of licence by the plaintiffs" vendors in favour of the defendant. In this regard Mr. Mr. Dasgupta further submitted that since the plaintiffs have succeeded in proving their title in the suit property they are entitled to get a decree for eviction against the defendant notwithstanding the fact that they have failed to prove the grant of licence by the plaintiffs" vendors in favour of the defendant. In this regard Mr. Dasgupta relied upon a decision of the Hon'ble Supreme court in the case of Bhagwati Prasad "vs-Chandramaul reported in AIR 1966 SC page 735 wherein it was held that in absence of proof of tenancy and of defendant's agreement, the conclusion of the High Court in First appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiffs, did not cause prejudice to the defendant and as such, the Hon'ble Supreme Court held that there was no error of law in the decree for ejectment passed by the learned First Appellate Court. 6. MR. Dasgupta further submitted that the learned First Appellate Court was justified in drawing adverse inference against the defendant as the said defendant has failed to produce any competent witness to prove their claim for acquisition of title in the suit property by way of adverse possession. Mr. Dasgupta further submitted that no Court, on the basis of mere possession of a trespasser in the suit property for any length of time without proof of hostile animus, can declare that the defendant has acquired title in the suit property by way of adverse possession. By relying upon a decision of this hon"ble Court in the case of Premendu Bhusan Mondal -Vs- Sripati Ranjan chakraborty reported in AIR 1976 Calcutta page 55 Mr. Dasgupta submitted that the defendant has failed to prove its claim for acquisition of title in the suit property by way of adverse possession. Mr. Dasgupta, thus, supported the judgment of the learned First Appellate court and submitted that no interference is necessary with the judgment and decree of the learned First Appellate Court in the facts of the instant case. On perusal of the pleadings as well as the evidence of the respective parties, this Court has no hesitation to hold that the plaintiffs have succeeded in proving their title in the suit property. The possession of the defendant in the suit property at least since 1971 is not disputed by the plaintiffs. On perusal of the pleadings as well as the evidence of the respective parties, this Court has no hesitation to hold that the plaintiffs have succeeded in proving their title in the suit property. The possession of the defendant in the suit property at least since 1971 is not disputed by the plaintiffs. The defendant has also submitted the certificate of registration to show that the defendant club was registered in 1971 under the West Bengal Society's Registration Act. Apart from the said document the defendant has not produced any other document to show that the defendant has acquired title in respect of the suit property by way of adverse possession. Certificate of registration is not a document of title. No step was taken by the defendant to prove that they exercised the right of ownership in the suit room to the knowledge of the real owner. The defendant has not taken any step for recording its name as owner of the suit room in the municipal record. Even the defendants who are the best persons to explain their status in the suit property have avoided the box. The witnesses being d. W. 1 and D. W. 2 who gave evidence on behalf of the defendant are not the competent witnesses, as they had no personal knowledge about the defendant's right in the suit room. Their evidence is hearsay evidence which is unworthy of acceptance. Thus, when the learned First Appellate Court came to the conclusion that the defendant has failed to prove its title by adverse possession, this Court does not find any justification to interfere with such findings of the learned Court below. 7. THUS, when the plaintiffs" title in the suit property has been proved and the defendant has failed to prove its title by way of adverse possession, the Court had no other alternative but to pass a decree for eviction in favour of the plaintiffs notwithstanding the fact that the plaintiffs" plea for induction of the defendant as licensee was not proved in a suit for eviction of a trespasser based on title. Accordingly, this Court does not find involvement of any substantial question of law to be decided in the instant appeal. This appeal deserves no merit for consideration. The instant appeal, thus, stands dismissed on contest with costs assessed at Rs. Accordingly, this Court does not find involvement of any substantial question of law to be decided in the instant appeal. This appeal deserves no merit for consideration. The instant appeal, thus, stands dismissed on contest with costs assessed at Rs. 20,000/- to be paid by the defendant/appellant to the plaintiffs/respondents within one month from date. The defendant is directed to vacate the suit room and to deliver khas possession thereof to the plaintiff within one month from date. In default of compliance of this decree the plaintiffs will be at liberty to execute this decree for recovery of the possession of the suit room as well as for realisation of cost amount as aforesaid. 8. THE judgment and decree of the learned First Appellate Court, thus, stands affirmed. Let the Lower Court records be sent down to the Court below immediately. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.