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2012 DIGILAW 692 (GAU)

Jayanta Saha v. Tarun Kumar Saha

2012-06-06

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the Judgment and Decree dated 09.07.2007 as passed by the learned District Judge, South Tripura, Udaipur in Title Appeal No. 06 of 2007 affirming the Judgment and Decree dated 01.12.2006 as passed by the learned Civil Judge (Senior Division), South Tripura, Udaipur in T.S. No. 22 of 2002.. For purpose of determining the substantial question of law, the fact that may appear essential is briefly noted:- The predecessor of the plaintiff-respondent namely, Girindra Mohan Saha purchased the land described in the A Schedule of the plaint along with other pieces of land from one Indra Lal Saha, predecessor of the appellants in the year 1964 by the registered sale deed No. 4532 dated 25.09.1964 and the land that was purchased was measuring.46 acre and after purchasing, the said predecessor of the plaintiff-respondent got possession and had been in possession of the said land. The said predecessor died in the year, 1980 and after his death, the suit land along with other lands were partitioned among the co-sharer. By the registered deed of partition No. 1-1996 dated 12.09.2001, the plaintiff respondent got the suit land along with other lands, but while taking possession of his share in pursuance to the partition deed dated 12.09.2001 in the month of September, he found that the defendants have stealthily encroached.08 acre of the purchased land as described in the A Schedule. The said encroached land has been separately described in the Schedule B of the plaint which is referred herein after as the suit land. The plaintiff-respondent failed to pursue the appellants-defendants herein to vacate the said land and as consequence thereof, the instant suit was filed for recovery of the possession based on the title. The defendant Nos. 1 to 5 filed a written joint statement whereby they denied the entire allegation of encroaching the suit land or refusal of vacating the same. They categorically stated in the written statement that "There is no existence of 'B' schedule land, it is an imaginary one. No land of the plaintiff was encroached by the defendants." The defendant Nos. 1 to 5 filed a written joint statement whereby they denied the entire allegation of encroaching the suit land or refusal of vacating the same. They categorically stated in the written statement that "There is no existence of 'B' schedule land, it is an imaginary one. No land of the plaintiff was encroached by the defendants." The defendant Nos. 6 and 7 by filing a separate written statement claimed that they are now possessing the said suit land as the title of that part of the land devolved unto them after death of their father Indra Lal Saha and the plaintiff-respondent has no right on that land. They stated in Para 5 of their written statement as under:- Indra Lal Saha during his lifetime in the last part of 1990 excavated a pond and its bank on the entire land of sabek dag No. 2542 and southern portion of sabek dag No. 2541 and some portion of land of sabek dag No. 2546 measuring.29 acres and the planted a good number of betal nut plants and other plants on the bank of said pond. He also used to possess the entire land of sabek dag No. 2547 area.08 acres by growing seasonal crops therein. After the death of Indra Lal Saha, all the defendants jointly used to possess the suit land and enjoyed the usufructs therefrom like their predecessors in interest. After the aforesaid amicable partition/family settlement the answering defendants jointly have been possessing the suit of sabek dag No. 2547 by growing seasonal crops therein and enjoying the fruits from those standing fruit bearing betal nut trees and other trees and they have been possessing land by rearing fishes therein within the knowledge of other defendants, plaintiffs and local people till today. 10. That the present suit was filed by the plaintiff in connivance with the defendant No. 1 to 5 only to frustrate the family settlement which was made amongst the defendants in the last part of June, 2000 A.D in respect of properties left by late Indra Lal Saha and to grab the land of Hal plot No. 4324 and 4288 (N.P) area.29 acres by the defendant Nos. 1 to 5 and the balance allotted land of answering defendants in Hal plot No. 4329 (N.P) area.08 acres by the present plaintiff. Actually the defendants Nos. 1 to 5 and the balance allotted land of answering defendants in Hal plot No. 4329 (N.P) area.08 acres by the present plaintiff. Actually the defendants Nos. 1 to 5 have no right, title, interest or possession on the land of Sabek dag No. 2547, Hal plot No. 4329 (N.P) area.08 acres and other lands as stated above since last part of June, 2000 A.D i.e. the date of family settlement,. The plaintiff or his father Girindra Mohan Saha did never purchase or enter into the possession on the land of sabek dag No. 2547 area.08 acres corresponding Hal plot No. 4329(N.P) and as such the plaintiff has no right, title, interest or possession on the said land which is the part of A schedule land. 2. Apart that, the defendant Nos. 6 and 7 had stated that during revisional survey, the Survey Staff most wrongly and illegally recorded the land of Sabek dag No. 2547 comprising an area of.08 acres, in the northern portion of Hal plot No. 4329 under R.S Khatian No. 935 in the name of the legal heirs of Girindra Mohan Saha namely Tarun Kanti Saha and others. At the time of attestation of this said Khatian, Indra Lal Saha filed objection before the Settlement authority and at the time of hearing that objection Tarun Kanti Saha and others verbally submitted that they had no objection if R.S. record of right and Map be rectified on the basis of F.P. Sabek Khatian and Map, but the survey staffs ignored to rectify the said R.S. record of right and map. 3. They further asserted that the suit land was all along under the possession of Indra Lal Saha till his death and after his death, his legal heirs used to possess the said land along with other lands left by Indra Lal Saha. These statements are in contrast to the statements made by the defendant Nos. 1 to 5 in their written statement. It appears that there was an endeavour to faintly project a case of adverse possession, but no animus was pleaded and no date from which the defendants Nos. 6 and 7 had started to assert possession in adverse to the title of the true owners has been pleaded or depicted. For adjudication of the matter, the following issues were framed by the learned trial court on the basis of the rival pleadings:- 1. 6 and 7 had started to assert possession in adverse to the title of the true owners has been pleaded or depicted. For adjudication of the matter, the following issues were framed by the learned trial court on the basis of the rival pleadings:- 1. Is the suit maintainable in its present form and nature? 2. Whether the suit is properly valued? 3. Whether the suit land is identifiable? 4. Has the plaintiff any right, title and interest over the schedule A and B land? 5. Whether the plaintiff is entitled to get recovery of possession over the B scheduled land? 6. Whether the plaintiff is entitled to a decree as prayed for? 7. To what relief/relief's the parties are entitled? 4. Learned trial court did not make any issue on the point of limitation. However, it considered that aspect of the matter while decided the issue Nos. 1 and 2. Categorically, it was found by the learned trial court that "Further it transpires that the plaintiff filed the suit for recovery of possession of the suit land alongwith declaration of title and it transpires that the plaintiff filed the instant suit within 12 years from the date of dispossession." Apart that, the Trial Court engaged one Survey Commissioner under Order 26, CPC and the said Survey Commissioner was examined as the Court Witness No. 1. From the Commissioner's report (Ext.C/1), it transpired to the trial court that the suit land was identifiable and it comprised the Dag Nos. 4326, 4327 and 4329 of Khatian No. 935. The learned trial court categorically returned a finding that Survey Commissioner also detected the land of the plaintiff which was encroached by the defendants in his hand sketch map annexed to the report. Learned trial court also held that none of the defendants have claimed any adverse possession on the said A scheduled land and mere possession does not affect the title of any person in any manner. 5. In view of this, the suit as filed by the plaintiff respondent was decreed and the Survey Commissioner's report with the hand sketch map (Ext.C/1) was made part of the decree. 6. 5. In view of this, the suit as filed by the plaintiff respondent was decreed and the Survey Commissioner's report with the hand sketch map (Ext.C/1) was made part of the decree. 6. Being aggrieved, the appellants filed the appeal under Section 96 of the Code of Civil Procedure, 1908 against the Judgment and Decree dated 01.12.2006 as passed by the learned Civil Judge (Senior Division), South Tripura, Udaipur in Title Suit No. 22 of 2002. 7. On scrutiny of the Memorandum of Appeal, no direct ground in respect of the limitation of filing the suit is available. However, in the Memorandum of Appeal, the following ground is noticed: 9. For that the plaintiff no where stated that they or their predecessor in interest was dispossessed from any portion of his purchased land as alleged in the plaint and he did not disclosed the date of dispossession etc. or no where stated that land of schedule' B' below of the plaint was in the possession of Girindra Mohan Saha or present plaintiff, in absence of such averment in plaint, Ld. Court below has no jurisdiction to pass any decree for recovery of possession. 8. The learned Appellate Court by the Judgment and Decree dated 09.07.2007 as passed in the said appeal being Title Appeal No. 06 of 2007 dismissed the appeal by affirming the findings of the learned Civil Judge (Senior Division), South Tripura, Udaipur. 9. In the said appellate judgment, it has been stated that:- The appellants asserted in the memo of appeal that the defendant did not mention exact date on which he was dispossessed from the suit land. So the prayer of the respondent for recovery of khas possession of the suit land should be rejected outright by the court. On careful scrutiny of the case record it appears to me that the respondent had mentioned in his plaint that he was dispossessed in the month of September, 2001 when he had tried to take possession over his portion of land. So I cannot make out how the appellants had raised this question at this stage. Moreover, it appears from the written statement of the appellants that they being the defendants had completely denied the allegation of the respondent that they had dispossessed him from any portion of his land. So I cannot make out how the appellants had raised this question at this stage. Moreover, it appears from the written statement of the appellants that they being the defendants had completely denied the allegation of the respondent that they had dispossessed him from any portion of his land. They also did not admit that the respondent had approached them for returning of his land to him by them. This observation of the First Appellate Court has created some cloud regarding the statement of dispossession as available in the records. For dispelling all confusions, the relevant part of the plaint may be reproduced below: 8. That the plaintiff humbly states that about 4 years ago the defendants have dug a pond along with B scheduled land and at the time of partition made in the year 2001 among the co-sharers of the plaintiff it was found that the defendants have dug their encroaching the B schedule land to their suitable extent silently and thereby the actual quantum of land, as given in the schedule A below has been reduced from 0.46 Satak to 0.38 Satak and, thereby the defendants have illegally encroached upon.08 Satak of land belongs to the plaintiff, which is the schedule B land as shown herein below. 9. That the cause of action of this suit has arisen firstly in the month of September, 2001 when the partition deed was executed in respect of the Schedule A land and hence measured for ascertaining the right, title and interest of the land in question and thereby it came to the knowledge of the plaintiff that 0.08 Satak of land described in the schedule B below has been encroached by the defendants, and lastly, in the third week of September, 2002 when the plaintiff for the last time requested the defendants to release the encroached portion of land in favour of the plaintiff in terms of the original Sale Deed executed by the father of the defendants late Indra Lal Saha when they refused to do so and said that they do not know any sale deed and they are bound by the sale deed executed by their father. 10. 10. Before that, in Para 4 of the plaint, the plaintiff respondent has stated that.08 Satak of land has illegally been encroached by the defendants silently along the western part of the plaintiff's land which is in the eastern part of the defendants' land. The said 0.08 Stacks of land is within the western boundary. It has been further asserted in the said para that the entire land of 0.08 acres are recorded in the name of the plaintiff or his predecessor. If these pleadings in Para 4 of the plaint is read with the statement as made by the defendants Nos. 6 and 7 in their written statement regarding the entries made in the record of rights after rivisional survey as excerpted herein that the predecessor of the plaintiff-respondent and thereafter his legal heirs were possessing the suit land as described in the Schedule B of the plaint. Both the Courts below therefore, concurrently found that after purchasing of the A Scheduled land, the predecessor of the plaintiff-respondent or his legal heirs were in the possession of the suit land. Only it was found that the defendants-appellants stealthily encroached the part of the A Scheduled land as described in the B Schedule and such encroachment was noticed by the plaintiff-respondent in the month of September, 2001, after the deed of partition amongst the legal heirs of Girindra Mohan Saha was entered into, executed and registered on 12.09.2001. It is apparent that the defendants-appellants did not press for framing any issue in respect of whether the suit is barred by limitation or not. Only they have raised that they were in possession and at no point of time, Girindra Mohan Saha was in possession or after death of Girindra Mohan Saha, his legal heirs came into possession over the suit land. However, the defendants Nos. 6 and 7 admitted that they came in possession over the suit land after the death of Indra Lal Saha and following the partition of his land amongst the legal heirs in 2000. Neither of the defendants anywhere stated that they are in possession in adverse to the title of the true owner or that they are in possession adversely over the suit land with any exact date for such claim over the suit land. 11. This appeal was admitted by the Order dated 01.12.2008 on the following substantial questions of law:- 1. Neither of the defendants anywhere stated that they are in possession in adverse to the title of the true owner or that they are in possession adversely over the suit land with any exact date for such claim over the suit land. 11. This appeal was admitted by the Order dated 01.12.2008 on the following substantial questions of law:- 1. Whether the Original suit is barred by limitation? 2. Whether the original suit is barred by limitation and it was proper on the part of the courts below to decide the question of limitation without framing any issue? 3. Whether the suit based on title is governed by the Article 64 or 65 of the Limitation Act? 12. Mr. D. Chakraborty, learned counsel, appearing for the appellants submitted that both the Courts below decided the issue of limitation erroneously. The plaintiff-respondent has no right to claim delivery of possession from the defendants-appellants as the original suit is barred by limitation. In addition thereto, Mr. Chakraborty contended that limitation cannot be computed for the purpose of recovery of possession on the basis of an instance of partition. He continued to state that the suit land was never delivered to the predecessor of the plaintiff-respondent and as such, there is no question of dispossession at all. According to him, the suit is barred by limitation. 13. On the other hand, Mr. A. Lodh, learned counsel, appearing for the respondent strongly contended that the substantial question as formulated by the order dated 01.12.2008 are not at all substantial questions of law. He continued to submit that whether an original suit is barred by limitation or not cannot be a substantial question of law inasmuch as that was mixed question of fact and law. There is no disability for any trial court to decide issue relating to the issue of limitation under a broader issue which is framed for examining the question of maintainability of the suit. However, it is preferable that separate and segmented reasoning is projected against each issue. The issue relating to the question of limitation should have been framed separately. But, consideration of the issue of limitation under a broader issue of maintainability does not give rise to any illegality and impropriety. However, it is preferable that separate and segmented reasoning is projected against each issue. The issue relating to the question of limitation should have been framed separately. But, consideration of the issue of limitation under a broader issue of maintainability does not give rise to any illegality and impropriety. As such, the substantial question is whether it was proper on the part of the Courts below to decide the question without framing an issue cannot be treated as the substantial question of law. The substantial question that whether the suit based on title would be governed by the Article 64 or Article 65 of the Limitation Act does not bear traits of substantial question of law, as those Articles being Article 64 and 65 of the Limitation Act, 1963 clearly illustrate when the Article 64 or when Article 65 of the Limitation Act would be applicable. For purpose of illustration, both the Articles are reproduced hereunder:- Description of suit Period of limitation Time from which period begins to run 64. For possession of immovable property Twelve years The date of based on previous possession and not in dispossession. title, the plaintiff while in possession of the property has been dispossessed. 65. For possession of immovable property Twelve years When the possession or any interest therein based on title. of the defendant becomes adverse to the plaintiff. Explanation.-For the purposes of this article (a) Where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession. (b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies. (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment- debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. 14. Mr. (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment- debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. 14. Mr. D. Chakraborty, learned counsel appearing for the appellants relied on a decision of the Apex Court as rendered in Gurbinder Singh and another v. Lal Singh and another as reported in AIR 1965 SC 1553 where the learned Apex Court held that the principle laid down in Agency Co.'s case (1888)13 AC 793, would apply and preclude the tacking of possession of successive trespassers. The following observations of Lord Macnaghten in that case are pertinent and run thus:- They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lordship's opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute 'continues to run' because there is a person in possession in whose favour it is running. 15. It is also held in that case, which, however, does not support the contention of Mr. There is not, in their Lordship's opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute 'continues to run' because there is a person in possession in whose favour it is running. 15. It is also held in that case, which, however, does not support the contention of Mr. D. Chakraborty that where a defendant is in possession of the property in suit by a person, who has title to it, but, is out of possession, what he has to show in defence as that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person, the defendant is not entitled to talk on the previous possession of that person to his own possession. It crystallizes that the starting point of limitation would be that when the possession of the defendant becomes adverse to the plaintiff as defined in Article 144 of the Limitation Act of 1908. 16. On the other hand, Mr. Lodh, learned counsel submitted that the Limitation Act has undergone a change with enactment of the Limitation Act, 1963 and the burden of proving the possession, when a recovery is sought on the basis of title has been entirely shifted on the defendants. 17. To support his contention, he referred a decision of the Apex Court as rendered in Saroop Singh vs. Banto and others as reported in (2005)8 SCC 330 where the Apex Court held that the appellant (the first defendant) could have legitimately pleaded that Indira Devi having died in the year 1961, his possession thereafter has become adverse to the true owners and thus, on expiry of the statutory period of limitation, he had perfected his title by adverse possession, but, he did not raise such plea. Even before the Apex Court, on the contrary his counsel categorically stated that the appellant did not intend to raise such a plea. 18. In Para 28 of Saroop Singh (supra), the Apex Court made a study of provisions of Article 142 and 144 of the Schedule appended to the Limitation Act of 1908 and Articles 64 and 65 of the Schedule appended to the Limitation Act of 1963 and observed that:- 28. 18. In Para 28 of Saroop Singh (supra), the Apex Court made a study of provisions of Article 142 and 144 of the Schedule appended to the Limitation Act of 1908 and Articles 64 and 65 of the Schedule appended to the Limitation Act of 1963 and observed that:- 28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 19. In terms of the above, the Apex Court continued to observe in Para 29 that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. 20. Therefore, Article 65 of the Limitation Act, 1963 has no relevance in the present case. It is not in dispute that after the revisional survey, the possession of suit land was recorded in favour of the predecessor of the plaintiff-respondent. As such, on the basis of such record, it has to be presumed that the predecessor of the plaintiff-respondent was found on possession and that is the reason why his name had entered into the relevant column as the possessor on the basis of the title he acquired by the sale deed. Thereafter, the defendants stealthily encroached upon the suit land. A set of defendants has stated that the suit land was imaginary whereas the another set of defendants has claimed that the suit land is under their possession since long. But, they cannot get the benefit of the possession of other trespassers even of assumed that they were in possession. Thereafter, the defendants stealthily encroached upon the suit land. A set of defendants has stated that the suit land was imaginary whereas the another set of defendants has claimed that the suit land is under their possession since long. But, they cannot get the benefit of the possession of other trespassers even of assumed that they were in possession. The defendants did not provide any date to establish their claim of adverse possession and as such, the concurrent findings of both the courts below that the plaintiff-respondent was held to be dispossessed in the month of September, 2001 when he found that the suit land has been encroached by the defendants cannot be faulted with. 21. Saroop Singh (supra) was referred in the case M. Durai vs. Muthu and others as reported in (2007)3 SCC 117 wherein Para 7, it has been observed by the Apex Court that:- 7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the Old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. 22. In Para 9 of M. Durai v. Muthu (supra), the Apex Court further observed that: 9. This aspect of the matter has since been considered by this Court in Saroop Singh v. Banto wherein it was held thus: 28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. 30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. 23. The defendant-appellants did not raise any claim for the adverse plea. The plaintiff-respondent has proved his title and as such, the burden has shifted to the defendants in view of the provisions of the New Limitation Act of 1963 and the said burden has not been discharged at all by the defendants. 24. In view of this, it has to be held that the suit is not barred by limitation. Since the appeal was filed solely on the basis of the aspects of the limitation in institution of the suit, this Court finds that the plaintiff-respondent has perfectly discharged his obligation of proving the title and discontinuation/dispossession from the suit land. The defendants did not even endeavour to prove any right on adverse possession. In view of the admitted position that the possession has been recorded in favour of the predecessor of the plaintiff-respondent and his legal heirs in the record of right, the burden was heavy on the appellants but they failed to discharge the burden as stated. Denial to the claim of recovery cannot provide a spring board for claiming the title on adverse possession. As such, the suit is to be governed by the provisions of Article 64 of the Schedule as appended to the Limitation Act, 1963. Denial to the claim of recovery cannot provide a spring board for claiming the title on adverse possession. As such, the suit is to be governed by the provisions of Article 64 of the Schedule as appended to the Limitation Act, 1963. There is no infirmity in the concurrent findings of the courts below that the suit has been instituted within the period of limitation. For the reasons as aforesaid, this appeal is devoid of merit and accordingly, the same is dismissed. Appeal dismissed.