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2013 DIGILAW 123 (GAU)

Tapasi Rani Das v. Sajal Das

2013-02-22

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. This second appeal has been admitted for hearing on the following substantial questions of law:- (i) Whether the findings arrived at by the courts below with regard to the adverse possession of the defendant is in accordance with law? (ii) Whether the defendant could establish all the ingredients with regard to the adverse possession? Heard learned counsel, Mr. N. Das for the appellants. Respondents have chosen to remain absent. 2. Nityananda Das, the predecessor of the present appellants as plaintiff instituted the suit seeking declaration of title and recovery of khas possession of the suit land, described in the Schedule of the plaint, against Sadhan Ch. Das, the predecessor of the present respondents, as defendant. 2.1 The case of the plaintiff in short, is that the suit land along with other lands was originally settled in the name of his father and the plaintiff inherited the suit property. The defendant was temporarily permitted to construct his dwelling house on the suit land and accordingly the defendant had been residing with his family on the suit land. He was asked by the plaintiff to vacate the land but the defendant did not vacate it. On 25.10.1996, the plaintiff asked the defendant to vacate the suit land but the defendant refused. Thereafter, the plaintiff issued notice through lawyer to hand over vacant possession but the defendant remained silent. The plaintiff, therefore, instituted the suit for declaration of title and recovery of possession. 3. The defendant contested the suit by filing written statement inter alia stating that from the year 1965, the defendant possessing the suit land continuously, openly and adversely denying the right, title, interest of the plaintiff and the allegation of the plaintiff that the defendant was temporarily permitted to construct his house on the suit land was false. The name of the defendant was recorded in the record of right as a forceful possessor of the suit land and the plaintiff approached the Settlement authority but the objection was turned down by the Settlement authority. The defendant further stated that his possession in the suit land is in hostile assertion, denying the right of the plaintiff and the plaintiff has extinguished his right because of such continuous hostile possession of the defendant and the suit should be dismissed. 4. The defendant further stated that his possession in the suit land is in hostile assertion, denying the right of the plaintiff and the plaintiff has extinguished his right because of such continuous hostile possession of the defendant and the suit should be dismissed. 4. The learned trial Court considering the pleadings of the parties framed 6 (six) issues namely:- (i) Whether the suit is maintainable in its present form? (ii) Whether the suit was properly valued and proper court fees has paid upon it? (iii) Whether the plaintiff has right, title and interest over the suit land? (iv) Whether the defendant has got right, title and interest over the suit land by way of adverse possession? (v) Whether the defendant is liable to be evicted from the suit land? (vi) What relief/reliefs the parties are entitled to? 5. In course of trial, plaintiff examined himself as P.W. 1 and also examined another witness namely P.W. 2 Khagendra Debnath. In support of his contention, plaintiff proved a copy of the khatian No. 629. Defendant examined himself as D.W. 1 and also proved a khatian in the name of the plaintiff and a copy of the order passed by the Revenue authority. 6. The Trial court decided all the issues against the plaintiff and dismissed the suit. 7. Plaintiff preferred first appeal No. 04 of 2000 and by judgment dated 14.05.2002 learned Additional Sessions Judge, Sonamura dismissed the appeal. Both the trial Court and the first appellate Court passed judgment in details reflecting the evidence and materials on record. In para 8 of the judgment, the appellate Court held thus:- It is not disputed that the suit land along with some other lands were allotted to Ram Dayal Das, the father of the appellant, by the Government After the death of Ram Dayal Das, the said allotted lands including the suit land were recorded in the name of the appellant. It was, however, averted by the respondent that the suit is bad for non-joinder of necessary party since Smt. Chintamani Das, the sister of appellant was not made party in this case as the legal heir of late Ram Dayal Das. But the said issue was decided by the Settlement Officer, West Tripura, Agartala in Misc. It was, however, averted by the respondent that the suit is bad for non-joinder of necessary party since Smt. Chintamani Das, the sister of appellant was not made party in this case as the legal heir of late Ram Dayal Das. But the said issue was decided by the Settlement Officer, West Tripura, Agartala in Misc. Case No. 05 of 1993 under Section 95 of the T.L.R. and L.R. Act holding that Smt. Chintamani Das cannot have any claim over the lands including the suit land recorded in the name of appellant Therefore, it cannot be said that the suit is bad for non-joinder of necessary party. The appellant stated in para-2 of the plaint that the respondent had been given temporary permission for residing in the suit land after constructing dwelling houses for some period. But he has not mentioned when such temporary permission was given for residing there in the suit land and for what period. The appellant filed a copy of lawyer's notice in the trial court from which it is found that sometime in 1990 such temporary permission was given to the respondent for a period of 5 (five) years and the period of 5 (five) years was expired on 15th April, 1994, but even then the respondent did not vacate the possession of the suit land. I failed to understand if there was a specific date given to the respondent for residing in the suit land temporarily, then why he did not mention such date in the plaint? In his depositions also the appellant did not state when such temporary permission was given to the respondent for residing there in the suit land after constructing the dwelling houses. His witness Khagendra Debnath (P.W.2) has also not stated when such permission was given to the respondent for residing in the suit land by constructing dwelling houses. The record of rights submitted by appellant does not speak that the respondent is the permissive possessor, rather he was found to be forcible possessor since 1965. Thus, it is found that the appellant was not fair and made the aforesaid averments only for the purpose of this case. The record of rights submitted by appellant does not speak that the respondent is the permissive possessor, rather he was found to be forcible possessor since 1965. Thus, it is found that the appellant was not fair and made the aforesaid averments only for the purpose of this case. From the khatian No. 629 submitted by both sides, it is found that in column No. 24, Sabek Dag No. 3153/4109, Hal Dag No. 4776, i.e., suit land, the name of the respondent was shown as forcible possessor with 2 (two) dwelling huts since 1965. It is also the plea of the respondent that he had been possession the suit land since 1965 adversely by constructing huts therein. In his deposition also he corroborated the said fact. On perusal of the certified copy of judgment passed by the Settlement Officer, West Tripura, Agartala in connection with cancellation of Allotment Case No. 09 of 1994 (Exhibit 'B' relied and submitted by the respondent), it appears that on 08.12.1994 notice was issued by the Settlement Officer, West Tripura, Agartala for cancellation of the allotment of the suit land including other lands of the appellant on the ground that the lands allotted to the appellant have not been utilized and the lands are in possession of the respondent. It appears from the order dated 21.12.1994 that both appellant and respondent appeared in that proceeding and it was held that the respondent Sadhan Das was in forceful possession of the suit land. Thus, it is found that the respondent was in possession of the suit land since 1965 till 21.12.1994, i.e., the date of passing the order by the Settlement Officer. There is no evidence on record that within this period the appellant was (sic) possession of the suit land. Appellant relied on an affidavit executed on 09.04.1994 jointly by him with the respondent wherein it was stated by the appellant that he is the absolute owner-in-possession of the suit land which is free from all encumbrances and he has agreed to exchange the said suit land with the respondent with other lands of the respondent. Appellant relied on an affidavit executed on 09.04.1994 jointly by him with the respondent wherein it was stated by the appellant that he is the absolute owner-in-possession of the suit land which is free from all encumbrances and he has agreed to exchange the said suit land with the respondent with other lands of the respondent. But in the lawyer's notice issued on 28.10.1996 submitted by the appellant, it is found that the appellant gave notice to the respondent stating that he has not been vacating possession of the suit land even after several persuasions and even the respondent admitted the ownership of the appellant of the suit land and agreed to give. 32 satak land in exchange of the land in which respondent is in possession. Thus, it is found that in the affidavit and in the lawyer's notice, appellant made contradictory statements regarding possession of the suit land. In the affidavit though the appellant stated that he was in possession of the suit land, but in the lawyer's notice he has admitted that the respondent was in possession of the suit land on the relevant date and time also. That apart, it is well settled that a land cannot be exchanged in such a manner by an affidavit and so, the affidavit executed by the parties cannot be said to have any legal force. From the above discussion, it is found that the appellant lost his title for continuous dispossession of the suit land since 1965 by the respondent which is 3 (three) times of the period of limitation of 12 years and thus, the respondent got the right, title and interest over the suit land by way of adverse possession. 8. Indisputably, the defendant was in possession of the suit land at the time when the suit was instituted by the plaintiff. Plaintiff contended that the defendant was temporarily permitted to construct his house and to reside there, in the suit land, but nothing stated specifically either in the pleadings or in the evidence as to when the temporary permission was given and from which date the defendant, pursuant to such temporary permission constructed his house and started residing therein. There is practically no evidence at all in support thereof. There is practically no evidence at all in support thereof. On the contrary, the defendant's case is that he has been residing in the suit land constructing his house from the year 1965 continuously and his name was reflected as forceful possessor of the suit land in the Khatian which has been marked as Exbt. 'A'. The same Khatian also filed by the plaintiff. Exbt. 'B' is the order of the Revenue authority which shows that the Revenue authority also passed order holding that the defendant had/has been residing over the suit land as a forceful possessor. 9. From the pleadings of the parties, it appears that the plaintiff instituted the suit not based on possession but based on title. The period of limitation is 12 years as prescribed in Article 65 of the Schedule annexed to the Limitation Act, 1963. Where a suit is for possession on the basis of title, the case is covered by Article 65 of the Limitation Act. The case cannot come under the purview of Article 64 of the Limitation Act since there is neither any averment nor any evidence that the plaintiff was ever in possession of the suit land and that he was dispossessed from the suit land. 10. Learned counsel, Mr. Das has argued that since the plaintiff instituted the suit based on title, burden lies on the defendant to prove that he has been in possession of the suit land denying the title of the plaintiff. There is nothing in the evidence of the defendant as to from which date the defendant started his animus possession denying title of the plaintiff. Mere possession cannot be termed as a hostile possession and under such circumstances; the trial Court and the first appellate Court would decree the suit in favour of the plaintiff. 11. Possession must be distinguished from mere occupation or detention. Possession in the eye of law consists of the fact of physical occupation and the mental act of holding the subject of possession to the exclusion of others. The unity of these two elements, namely occupation and animus possidendi is recognized as constituting "possession" in the eye of the law. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. The unity of these two elements, namely occupation and animus possidendi is recognized as constituting "possession" in the eye of the law. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Occupation only implies bare use of the land without any right to retain it. The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. 12. In the case at hand, admittedly, the defendant is in possession of the suit land. The entry in the record of right (Khatian) is a primary proof in respect of possession which shows that the defendant had/has been in forceful possession of the suit land from 1965. Exbt. 'B' the order of the Revenue authority also makes it abundantly clear that the defendant is in continuous possession of the suit land. By "adverse possession" is meant possession which is hostile, under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous. Adverse possession is made out by the co-existence of two distinct ingredients: first, such a title as will afford colour, and second, such possession under it as will be adverse to the right of the true owner and title by adverse possession becomes complete only when the possession of the trespasser continues uninterruptedly for the full statutory period. Adverse possession is made out by the co-existence of two distinct ingredients: first, such a title as will afford colour, and second, such possession under it as will be adverse to the right of the true owner and title by adverse possession becomes complete only when the possession of the trespasser continues uninterruptedly for the full statutory period. Where a plaintiff is suing for possession on the basis of dispossession the burden lies on him to show that the date of his dispossession or discontinuance of possession which gave him the cause of action for the suit was within twelve years of the suit, while if the suit is not for possession based on ground-of dispossession or discontinuance of possession but is a suit for possession of immoveable property or any interest therein (sic) on title, then Article 65 of limitation Act would apply and on proof of title the plaintiff's suit cannot be dismissed until the defendant further establishes his adverse possession for more than twelve years. Ordinarily an owner of property is presumed to be in possession of it and such presumption is in his favour where mere is nothing to the contrary. It would, therefore, follow that an owner of property starts with the presumption in his favour that he is in possession of his property, but where the plaintiff himself admits or it is proved that he has been dispossessed by the defendant and, therefore, is no longer in proprietary possession of the property in suit, at the time of the institution of the suit, the Court cannot start with the presumption in his favour that the possession of the property was with him. No doubt in many cases the distinction is very fine and the line of demarcation between dispossession and adverse possession is thin but the question in each case is one of burden of proof and it is incumbent on the plaintiff when he has been dispossessed or has discontinued his possession to establish the date of dispossession or discontinuance of possession and to show that it was within twelve years of the institution of the suit. 13. The defendant has proved his continuous open, undisturbed and animus possession in the suit land from the year 1965. 13. The defendant has proved his continuous open, undisturbed and animus possession in the suit land from the year 1965. Once the adverse possession of the defendant for over 12 years before the date of institution of the suit is established, the suit has to fail, regardless of the consideration whether it is under Articles 64 or 65 of the first Schedule to the Limitation Act is applicable. In such a case, it could be said that the defendant has become the owner of the property because of his adverse proprietary possession for more than 12 years. It is also clear that the plaintiff had not been in the possession of the property at any time within 12 years of the date of institution of the suit. Under such facts and circumstances, I find nothing wrong in the decision of the courts below and the appeal, therefore, stands dismissed with cost. 14. The judgment and decree passed by the learned Civil Judge, Jr. Division, Sonamura in TS 02 of 1997 and upheld by the learned Additional District Judge in TA 04 of 2000 stands good and accordingly upheld. Send back the L.C. records along with a copy of this judgment. Appeal dismissed.