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2011 DIGILAW 755 (CAL)

Trinath Chandra Das v. Debaprasad Bhattacharya

2011-06-08

S.K.MUKHERJEE, TARUN KUMAR GUPTA

body2011
Judgment Mukherjee, J. 1. ALTHOUGH, the matter is appearing under the heading 'for orders', by consent learned Advocates appearing for the parties, we take up the appeal itself for final disposal upon dispensation of all formalities. 2. THIS is an appeal against judgment and decree dated May 21, 2001 passed by the learned Judge, Tenth Bench, City Civil Court at Calcutta in Title Suit No. 519 of 1989. The learned Judge, by the judgment and decree impugned in this appeal, decreed the suit for eviction and recovery of khas possession. The defendant Nos. 1, 3 and 4 in Title Suit No. 519 of 1989 are the appellants before us. The litigation has a chequered history. 3. THE suit property situates at 12, Chunapukur Lane, Police Station-Muchipara, Calcutta-700012. Originally, it belonged to Sri Sri Damodar Jew Thakur. 4. THERE was a suit amongst the she baits of the deity in the Ordinary Original Civil Jurisdiction of this Court. The suit was registered as Suit No. 2107 of 1950. Mr. D. C. Gupta, learned Advocate, was appointed as the receiver. With the leave of the Court and under the direction of the Court, the learned Receiver conveyed the suit property to this plaintiff by executing a registered deed of sale on October 8,1965. The learned Receiver delivered possession of the suit property in favour of this plaintiff. After obtaining possession of the property in suit, the plaintiff appointed one Sushil Mukherjee as the security guard. Within fifteen days from the date of purchase by the plaintiff, the defendant Nos. 1 and 2 and one Sankar Das, the father of the defendant Nos. 3 and 4, trespassed into the suit property by driving out the security guard. 5. THE said trespassers filed Title Suit No. 1643 of 1977 in the City Civil Court at Calcutta for declaration of title against this plaintiff. THE thakur was made proforma defendant in the said suit. THE learned trial Judge, by his judgment and decree dated February 27, 1982, dismissed the said suit on contest with costs. 6. THE plaintiffs in the said suit preferred an appeal before this Court. THE appeal was tendered as F.A.T. No. 2026 of 1982. Eventually, the appeal was registered as F.A. No. 357 of 1982. On September 26, 1988 the appeal stood dismissed. Therefore, the decision in Title Suit No. 1643 of 1977 became final. 6. THE plaintiffs in the said suit preferred an appeal before this Court. THE appeal was tendered as F.A.T. No. 2026 of 1982. Eventually, the appeal was registered as F.A. No. 357 of 1982. On September 26, 1988 the appeal stood dismissed. Therefore, the decision in Title Suit No. 1643 of 1977 became final. The defendant in the earlier suit as the plaintiff instituted the present suit for eviction and recovery of khas possession on March 29, 1989. By the judgment and decree impugned in this appeal, the learned trial Judge decreed such suit for eviction. 7. BEING aggrieved, the defendant Nos. 1, 3 and 4 have come up with this appeal. 8. MR. Abhijit Ray, learned Advocate appearing in support of this appeal, submits that the learned Judge erred in law and in facts in decreeing the suit as the suit was barred by limitation. He submits that the suit was not filed within twelve years from the date of dispossession. Mr. Ray submits that the defendants in this suit trespassed into the suit property in the year 1965, whereas the present suit has been filed on March 29, 1989, that is, long after twelve years of their trespass into the suit property. Therefore, the suit was barred by limitation on the face of it. 9. MR. Ray, further, submits that his clients as the appellants established that they have acquired title by adverse possession in relation to the property in suit. MR. Ray cites a decision in the case of Rajendar Singh and Ors. v. Santa Singh and Ors., reported in AIR 1973 SC 2537 in support of his contention that pendency of the earlier suit would not arrest the running of the period of limitation of the present suit during the pendency of the earlier suit. 10. MR. Ray proceeds on the basis that the suit is governed by Article 64 of the Limitation Act, 1963. He submits that the period of limitation under Article 64 is 12 years and the starting point is the date of dispossession. He asserts that this is not a suit based on title. Therefore/as the suit has been instituted, admittedly, not within 12 years from the date of dispossession, the suit was barred by limitation. We are of the considered opinion that the suit was based on title. He asserts that this is not a suit based on title. Therefore/as the suit has been instituted, admittedly, not within 12 years from the date of dispossession, the suit was barred by limitation. We are of the considered opinion that the suit was based on title. The plaintiff has acquired title to the property in suit through a registered deed of sale executed by the receiver appointed in a suit being No. 2107 of 1950, which was pending amongst the she baits of the deity in the Ordinary Original Civil Jurisdiction of this Court. 11. THE plaintiff alleged that the security guard was driven out and, thereafter, the defendants and/or their predecessor-in-interest trespassed into the suit property. Subsequently, the trespassers filed Title Suit No. 1643 of 1977 asserting the ownership. THE learned Judge decreed the said suit rejecting the contention of the trespassers that they had ownership in the property in suit. THE decree passed by the trial Court has since been affirmed upto this Court and, as such, the decree had become final. 12. UNDER Article 65 of the Limitation Act, 1963, the period of limitation is twelve years; the time begins to run as and when the possession of the defendant becomes adverse to the plaintiff. Mere possession of a trespasser does not constitute adverse possession unless accompanied by open assertion of hostile title. In the written statement, the defendants asserted that they were lawful she baits of the thakur and were actually performing all the duties of the she baits. They further asserted that they were holding possessing and occupying the suit premises and were worshipping the deity. Therefore, they would not be evicted. 13. BOTH under the former Article 144 of the Act of 1908 and the present Article 65 of the Limitation Act, 1963, time begins to run from the date when the possession of the defendant became adverse to the plaintiff. In every case, the person pleading adverse possession must specifically plead the date from which the possession-actual of constructive-became hostile. A person claiming lawful title cannot claim, at the same time, adverse possession. 14. WE are at one with the learned trial Judge that there was a bald assertion that the defendants in the suit acquired title by adverse possession, but there was no supporting evidence in relation to such plea. A person claiming lawful title cannot claim, at the same time, adverse possession. 14. WE are at one with the learned trial Judge that there was a bald assertion that the defendants in the suit acquired title by adverse possession, but there was no supporting evidence in relation to such plea. The defendants dented the title of this plaintiff by asserting that the purchase made by the plaintiff was invalid and not binding on the defendants, who were the she baits of the thakur. Although the defendants had taken the plea of acquisition of title by adverse possession, but no evidence on that score had at all been led. The learned trial Judge rightly noticed that although the defendants claimed title by adverse possession against the plaintiff, but, surprisingly, the defendants' witness No. 1 denied the title of the plaintiff in the suit premises. 15. WE do not, therefore, find any reason to interfere with the impugned judgment and decree passed by the learned trial Judge giving a decree for possession in favour of the rightful owner against the trespassers. The title of the plaintiff has been established. The defendants have no manner of right, title and interest in the property in suit, for which reason they were evicted from the suit property. 16. THE appeal is, therefore, dismissed. Consequently, the connected application for appropriate order becomes infructuous and the same is, also, dismissed. There will be no order as to costs.