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2013 DIGILAW 427 (GAU)

Binode Das and Ors. v. Sarumai Patangia and Ors.

2013-06-18

NISHITENDU CHAUDHURY

body2013
This Second Appeal has been preferred by the plaintiffs against the concurrent findings of facts arrived at by the two learned courts below. Appeal was admitted on 02.03.2001 on the following substantial questions of law : (i) Whether the plaintiffs who have been dispossessed from the suit land during pendency of the Title Suit No. 30/1982 filed by the defendants are entitled to recovery of khas possession if it is established on evidence in record that they have acquired title by adverse possession. (ii) Whether title acquired by adverse possession stood extinguished because of dis-possession of the plaintiffs from the suit land on 3.4.1989, during pendency of T.S. No. 30 of 1982. (iii) Whether learned counsel below fell in error in deciding adversely the question of acquisition of title by adverse possession by non-consideration of relevant evidence, either oral or documentary; and (iv) Any other substantial question of law that may arise during the course of hearing. 2. Subsequently, on 23.5.2013 in course of hearing of this appeal, another additional substantial question of law was framed and the same is quoted below : Whether a suit for declaration of title on the basis of the claim of adverse possession is maintainable in view of the provision of section 27 of the Limitation Act, 1963? 3. Heard Ms. B. Choudhury, learned counsel, assisted by Mr. S. Sahu, learned counsel for plaintiffs. Also heard Mr. T.C. Khatri, learned senior counsel, assisted by Mr. P. Mahanta, learned counsel for respondents. 4. Before going to decide the substantial questions of law framed in this case, it is necessary to record the minimum factual summary of the case. 5. Three sons, namely, Binode Das, Gopal Das and Ganesh Das and their sister. Smt. Maheswari Devi being the legal heirs of Late Pandu Badyafcar, filed Title Suit No.66/1989 in the court of learned Munsiff in Tezpur, against the respondents as plaintiffs, praying for declaration of their right, title and interest by way of adverse possession, and for recovery of possession and also for injunction restraining the defendants and others, who may attempt to enter into the suit land after such recovery of possession. The case of the plaintiffs was that their predecessor, namely, Pandu Badyakar possessed the suit land in the year 1916-17 to the knowledge of the original owner and was residing there by constructing house. The case of the plaintiffs was that their predecessor, namely, Pandu Badyakar possessed the suit land in the year 1916-17 to the knowledge of the original owner and was residing there by constructing house. Pandu Badyakar and his wife Bina Das enjoyed possession over the land for a period of 66 years without any obstruction from anybody and in the process they claimed that their predecessor (Pandu Badyakar) had acquired title by way of adverse possession and correspondingly the same of the original owner got extinguished. But on 7.2.1982 when Pandu Badyakar died, Arun Patangia (the predecessor of the defendant's No. 1 to 5) forcefully occupied the land ousting the legal heirs of Pandu Badyakar from the suit land and demolishing their houses. The legal heirs of Panda Badyakar lodged a complaint before the court of Judicial Magistrate at Tezpur on 8.2.1982 and CR case No. 105 of 1982 was registered under sections 427/448/352/506, IPC and the accused, Arun Patangia, (predecessor of the defendant Nos. 1 to 5) was arrested. At that time the plaintiff No. 1 and his mother Bina Das claimed to have reconstructed the house, but the same was again demolished by the predecessor of the defendant Nos. 1 to 5. She could not re-enter the suit land any more as police restrained both the sides in view of a proceeding before the Executive Magistrate at the instance of the predecessor of the defendants. However, the defendants did not have any right, title and interest thereto although Arun Patangia sent a notice to the mother of the present plaintiffs on 26.2.1982 asking her to vacate the suit land on the ground that she had failed to pay rent. By giving reply notice, the claim of the notice given was refuted but Arun Patangia, the predecessor of the defendants, as plaintiff, instituted Title Suit No. 30 of 1982 in the court of learned Sadar Munsiff at Tezpur on 21.4.1982 praying for decree against the mother of the plaintiffs for eviction and recovery of possession and also for injunction restraining her from making any construction on the suit land wherein an order for temporary injunction was granted. Defendant, Smt. Bina Das submitted a written statement and contested the suit but the suit was dismissed for not taking any steps on 29.03.1986 which was subsequently restored to file vide MC No. 284 of 1986. Defendant, Smt. Bina Das submitted a written statement and contested the suit but the suit was dismissed for not taking any steps on 29.03.1986 which was subsequently restored to file vide MC No. 284 of 1986. During pendency of the said suit, namely, T.S. No. 30/82, Arun Patangia died. But prior to his death , he had sold the suit land to defendant No.7 on 21.8.1987. It appears that the said s^e was made when the suit had been dismissed for default and the restoration order was yet to be passed. According to the plaintiffs, possession of Bina Das was admitted by the defendants in their own plaint in T.S. No. 30 of 1982 and as such the defendants or their predecessor did not have any legal right to evict the plaintiffs or their mother without following the legal process. According to the plaintiffs, during pendency of the Title Suit No. 30 of 1982, Bina Das died on 13.9.1988 and this is how the present plaintiffs stepped into her shoes. But as the present plaintiffs, namely Shri Binode Das, Shri Madhav Bora, Sri Ganesh Das and Smt. Maheswari Devi, the legal heirs of Bina Das were not brought on record the suit came to an end on 27.4.1989. With the aforesaid factual statements, the plaintiffs have prayed for declaration of title over their suit land by virtue of adverse possession and also for recovery of Khas possession evicting the defendants along with cost, etc., as stated above. 6. The defendants submitted a joint written statement in the suit denying the claims of the plaintiffs. According to the defendants, late Pandu Badyakar became a tenant under the predecessor in interest of the defendants as would be evident from the Bandobastinama dated 31.12.1972 and Panchayatnama dated 19.6.1978 agreeing to pay rent. It is the further statement of the defendants that said Bina Badyakar left the premises at her own accord surrendering the possession in favour of the defendants during the pendency of the suit and as such whatever right or interest they had, came to an end thereby. The defendants denied the story of demolition of house on the suit land. Defendants also denied that they forcefully got the land vacated. With these pleadings the defendants prayed that the suit be dismissed with cost. 7. The defendants denied the story of demolition of house on the suit land. Defendants also denied that they forcefully got the land vacated. With these pleadings the defendants prayed that the suit be dismissed with cost. 7. On the basis of the aforesaid rival contentions the learned trial court framed as many as five issues as follows : (i) Is there any cause of again for the suit? (ii) Have the plaintiffs acquired right, title and interest in the suit land by adverse possession? (iii) Whether the plaintiffs had been dispossessed from the suit land by legal manner by the defendants? (iv) Whether the plaintiffs are entitled to get a decree of eviction as prayed for? (v) But what other relief/ reliefs the parties are entitled? 8. The plaintiffs' side examined as many as four witnesses while the defendants also examined witnesses and exhibited documents including the records of the Title Suit ISfcp. 30/1982. On the basis of the materials available on record and after hearing the parties the learned trial court passed the judgment and decree dated 15.9.1993, dismissing the suit of the plaintiffs. While deciding the issue No.2, i.e., right, title and interest of the plaintiffs over the suit land, the learned trial court observed that PWl himself stated in course of his evidence that he did not have possession over the suit land at the time of institution of the suit in view of the dispossession on 3.4.1989, PW3 stated that the mother of the plaintiffs died in Rangapara and not in the suit land. While PW2 stated that mother of the plaintiffs died in other place than the suit land. PW3 further stated that even in 1977 plaintiff Binade Das stayed in Rangapara where his mother also stayed with him. It is the finding of the learned trial court that plaintiff Binade Das was an employee of railways since 1977 at Rangapara. On the aforesaid statements vis-a-vis, the revenue receipts and two papers written by Gaonburah in the nature of possession certificate on prior period, adverse possession cannot be claimed unless the plaintiffs could prove their continuous uninterrupted possession over the suit land for a period of more than 12 years prior to the date of institution of the suit. On the aforesaid statements vis-a-vis, the revenue receipts and two papers written by Gaonburah in the nature of possession certificate on prior period, adverse possession cannot be claimed unless the plaintiffs could prove their continuous uninterrupted possession over the suit land for a period of more than 12 years prior to the date of institution of the suit. Observing that the plaintiffs were not in possession within a period of 12 years from the date of filing of the suit, the learned trial court held that the plaintiffs did not have any right whatsoever on the basis of the adverse possession. While deciding issue No.3 in regard to plea of dispossession of the plaintiffs, it is the finding of fact by the learned trial court that the plaintiffs could not prove their story of dispossession. The learned trail court found that PWs 2 and 3 have admitted that after the death of Pandu Badyakar, the plaintiffs had left the suit premises for Rangapara, where the mother of the plaintiff died. Taking note of the fact that plaintiff Binade Das was residing at Rangapara since 1977 in course of his employment, issue No.3 was decided against the plaintiffs. Accordingly, other issues were also decided against the plaintiffs and consequently suit was dismissed. 9. The plaintiffs preferred title Appeal No. 33/1993 in the court of learned Civil Judge, Senior Division, Tezpur. The learned first appellate court after hearing the parties and on perusal of the materials on record, proceeded to consider the issues afresh and did not frame any point for decision as contemplated under order XLI, rule 31 of the Code of Civil Procedure. Since issue Nos. 2 and 3 are the cardinal issues in this case, it is necessary to look into the corresponding findings of the learned first appellate court as against the said issues. The learned first appellate court discussed the recital made in the plaint and the depositions made by the PWs and DWs. Since issue Nos. 2 and 3 are the cardinal issues in this case, it is necessary to look into the corresponding findings of the learned first appellate court as against the said issues. The learned first appellate court discussed the recital made in the plaint and the depositions made by the PWs and DWs. Learned first appellate court noticed that the PWS Akon Bora deposed about staying of plaintiff Binade Das at Rangapara because of his employment under Indian Railways, that PW2, Pitamohan Saikia, deposed that after the death of Pandu Badyakar his legal heirs stayed on the suit land for some time but thereafter were driven out and since then they were not in the suit land and that Bina Badyakar, widow of Pandu Badyakar, died somewhere else and not in the suit land. The first appellate court came to the finding that after 1982, the plaintiffs were not in the possession of the suit land and so when in 1989 they filed this suit for a declaration of the right, title and interest on the basis of the adverse possession they admittedly did not have any possession at all not to speak of adverse possession. The learned first appellate court also considered the evidence led by the defendants particularly in regard to Exhibit 6, the records of the earlier suit, namely, title suit No.30 of 1982, the learned first appellate court observed that in paragraph 22 of the written statement submitted in Title Suit No.30 of 1982 the present plaintiffs claimed that Pandu Badyakar had purchased the suit land at Rs. 120 from Arun Patangia by an unregistered sale deed. With the aforesaid observations on fact, learned first appellate court dismissed the appeal upholding the findings of the learned trial court and hence this second appeal. 10. Learned counsel Ms. B. Choudhury, arguing for the appellants submitted that Pandu Badyakar had been in possession of the suit land since 1916-1917 and lived there at least for 63/70 years and in the year 1982 when Pandu Badyakar died, Arun Patangia forcibly entered and, thus, he had acquired right of adverse possession over the suit land for such a long and uninterrupted possession. According to her they have been evicted from the land but such dispossession would not have any adverse effect on the title already acquired by their predecessor on the basis of adverse possession and as such the plaintiffs are entitled to a decree of declaration as well as khas possession. When the attention of the learned counsel was drawn to the substantial question No.(ii) framed on 2.3.2001 as to whether title by way of adverse possession, if any acquired by the plaintiffs, had come to an end after the plaintiffs were admittedly dispossessed and did not adversely possess the land continuously for a period of 12 years prior to institution of the suit, the learned counsel submitted that title once acquired is final and the same cannot be extinguished by subsequent dispossession. 12. Before the trial court, the records of the earlier suit between the parties, namely, Title Suit No. 30/1982 have been proved as Exhibit 6. From paragraph 22 of the written statement filed by the mother of the present plaintiffs in Exhibit 6, it appears that the predecessor of the plaintiffs did not take the plea of adverse possession at that time but took the plea of acquisition of title by purchase from the predecessor of the defendants vide one unregistered sale deed while the consideration was admittedly shown at Rs.120. In view of the provisions of section 17 read with section 49 of the Registration Act, 1909 the said plea is/was unacceptable. On the face of the aforesaid submissions of the learned counsel for the appellants, a question necessarily arises as whether a plea of adverse possession is merely a defence or a title is created by fiction without there being any known incident of conveyance or transfer of title. This question shall be considered and answered in the later part of this judgment. Pausing here for a moment it strikes one's mind that had the predecessor of the plaintiffs himself believed that he had acquired title by adverse possession there would have been no occasion on his part to go for acquiring title by purchase from the original owners and as such it necessarily follows that his possession was not adverse. Pausing here for a moment it strikes one's mind that had the predecessor of the plaintiffs himself believed that he had acquired title by adverse possession there would have been no occasion on his part to go for acquiring title by purchase from the original owners and as such it necessarily follows that his possession was not adverse. Viewed from different angle, as the plea of adverse possession was not taken in 1982 while filing written statement in the earlier suit, presumption must be taken that the possession was not adverse at that time and as such no plea of adverse possession can be taken in 1989 when on the face of the evidence of the plaintiffs themselves, plaintiffs did not or could not enter the suit land after 1982. The irresistible conclusion under such factual premises is that the plain tiffs could not set up a case of adverse possession at all. In this view of the matter, the concurrent findings of courts arrived at by the learned courts below that the plaintiffs have failed to establish plea of adverse possession cannot be said to be unsustainable or perverse and consequently, the first and third substantial questions of law are decided against the appellants. 13. Learned counsel has relied on the following judgments in support of her contention; AIR 1968 SC 1165 , (1994) 6 SCC 155 , (2009) 14 SCC 224 and (1986) 1 GLR 108. These judgments speak of maturing of title of adverse possession once the same is established. But none of these judgments take care of the exigency when the person having such right arising from adverse possession is dispossessed by the original owner. These decisions, therefore, do not apply to the case in hand. 14. Substantial question No.(ii), as to whether adverse possession gets extinguished by interruption of possession, does not appear to be res integra any more . It appears that in the case of Karan Singh v. W. Alt Khan, 91A, 1999, the judicial committee of the Privy Council held that after the claim of the adverse possession was interrupted, the right accrued thereby also comes to an end. The said view of the judicial committee of the Privy Council was referred in the case of P.C. Mukherjee v. S.K. Mukerjee, (1971) 3 SCC 607 . The said view of the judicial committee of the Privy Council was referred in the case of P.C. Mukherjee v. S.K. Mukerjee, (1971) 3 SCC 607 . In that case also right by way of adverse possession was snapped by requisition of the land by the Deputy Commissioner. The High Court of Calcutta decided the case against the claimant of adverse possession. The appeal was dismissed in the case of P.C. Mukherjee (supra) and, thus, by implication the law laid down by the judicial council of the Privy Council in Karan Singh (supra) appears to be accepted by the Supreme Court of India. Apart from the said possession, the concept of adverse possession starts with a right based on possession. So the basic substratum on which the right was founded being physical possession, if the substatum goes the claim cannot exist. This is why once a right by way of adverse possession has been acquired, the same is a special right based on possession alone and as such after being dispossessed of the said right, the only remedy open to the person dispossessed would be under section 6 of the Specific Relief Act and not otherwise. 15. In the case in hand the plaintiffs did not proceed to get their possession back taking recourse of section 6 of the Specific Relief Act. While the courts below have concurrently held that the plaintiffs are no longer in possession after 1982, the plaintiffs staked their claim of possession till 3.4.1989 by the technical ground that a suit filed in 1982 demanding for the possession from them had been in existence till then. 16. Thus, in view of above and particularly, on the perusal of the law laid down by hon'ble Supreme Court in the case of PC. Mukerjee (supra) and the judgment of the judicial committee of the Privy Counsel in the case of Karan Singh (supra) it appears that title acquired by way of adverse possession stands extinguished once the possession is snapped. The substantial question No.(ii) therefore, is decided in affirmative against the appellants. 17. Coming to additional substantial question of law, section 27 of the Limitation Act, 1963 speaks of extinguishment of title of a person at the determination of a period limited to him for instituting a suit for possession of any property. The substantial question No.(ii) therefore, is decided in affirmative against the appellants. 17. Coming to additional substantial question of law, section 27 of the Limitation Act, 1963 speaks of extinguishment of title of a person at the determination of a period limited to him for instituting a suit for possession of any property. Statute has prescribed this period to be 12 years vide article 65 of the First Division of the Schedule under the said Act. But a bare perusal of the said article shows that it is 12 years with effect from the date when possession of defendant becomes hostile to the plaintiff. The necessary corollary that may arise from joint reading of the said article as well as section 27 of the Limitation Act is that the plea of adverse possession fits in the mouth of the defendant and not in the mouth of the plaintiff. What is prescribed is the extinguishment of title of a person but it does never provide for corresponding acquisition of title by the defendant. The person losing the title is really barred from staking any claim anymore and, thus, this bar of limitation is merely an incident of estoppel for such person, i.e., the rightful owner without having any element of conveyance of title by operation of law. 18. The mode of acquisition of title to property is prescribed under the Transfer of Property Act such as sale, gift, exchange etc. Mr. T.C. Khatri, the learned senior counsel has also pressed into service the provisions of section 6 of the Assam Land and Revenue Regulation to show other modes of conveyance of title. Section 10 of the Assam Land and revenue Regulation provides for relinquishment of tile. But no where it is prescribed that title can be acquired by any means other than conveyance associated with and followed by registration if the value of the conveyed property is more than Rs.100. Even in a case where a party acquires exclusive title to a property by amicable arrangement made in course of proceeding of a suit and a decree is passed accordingly in terms of such settlement, unless such a decree of court is registered like any other deed of conveyance, the beneficiary of the decree may not acquire title provided the whole of the property was subject-matter of that suit. So, while a person may forfeit his title by dint of section 27 of the Limitation Act there shall not be a corresponding acquisition of title by any one. The defendant, however, shall be entitled to be in possession vis-a-vis the rightful owner by default only. This takes us to the next and the additional substantial question of law as to whether a suit for declaration of title can be claimed on the basis c: adverse possession. It is reiterated here that article 65 of the Limitation Act has prescribed computation of limitation as a bar from to time when possession of defendant becomes adverse. So, to contest a soil for recovery of possession it is a tool for defence given to the defendant by the Legislature. The Legislature in its wisdom has chosen not to give this right to a defendant only and this is why there is an oft quoted maxim that claim of adverse possession is a shield but not a sword. 19. In this view of the matter, it becomes difficult to accept as to whether a suit for a declaration of title at all can be based on the claim of the adverse possession and this takes us to the additional substantial question of law framed in this second appeal. It appears such a question came up for consideration in the case ofBhim Singh v. Zile Singh, AIR 2006 P&H 195 and it has been held that such suit shall not be maintainable. Same was the view expressed by the hon'ble Delhi Court in the case Premnath Wadhwan v. Inder Rai Wadhwan. The case of Bhim Singh v. Zile Singh has received consideration of the hon'ble Supreme Court in the case of State of Haryana v. Mukesh Kumar, (2011) 10 SCO 404. However, the hon'ble Supreme Court has not expressed any opinion as to the correctness of the judgment. Be that as it may in view of what has been sated above conclusion, therefore, has to drawn that a suit for declaration on the basis of adverse possession is not maintainable. The last substantial question of law is, thus, decided in the negative and against the plaintiffs/appellants. 20. Be that as it may in view of what has been sated above conclusion, therefore, has to drawn that a suit for declaration on the basis of adverse possession is not maintainable. The last substantial question of law is, thus, decided in the negative and against the plaintiffs/appellants. 20. Before parting, it is noticed that in the case of State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 , the hon'ble Supreme Court has traced the history of the concept of adverse possession in England as far back as 1275 AD as a claim of seisin although legal recognition of the concept originally took birth on 1623 when the statute of limitation was put into place which allowed a person to be in possession for 20 years or more to acquire title to that property. It has also been discussed therein that this law was then adopted in the United States to procure drawing of principle of title and the American version which is illustrated by most states adopting 20 years of adverse possession of claims. Although Mukesh Kumar (supra), shows that the concept of extinguishment of title by law of limitation came to be introduced in the west as far back as 1275 A.D. but the same was in vogue in India much before the birth of the Christ. Because, Manusmrit bears testimony to existence of such law which goes as. below : "Pranas taswamikang Riktang Raja Tryavdat Nidhapayet. Arvak Tryavdaddharaet Swami Paren Nripatirharet." (Manusmiriti Chap. VIII, verse No. 30) (If the real owner abandons his property for a continuous period of 3 years the King shall protect the same against occupation by others for a period of 3 years but if the real owner does not return to take over after 3 years, the king shall have it.) This concept of forfeiture of private property if the real owner abandons it, has received constitutional recognition in article 296. Article 296 of the Constitution mandates that if the owner abandons the property the same accrues to His Majesty or as the case may be to the ruler of the Indian states state by escheat or as Bona vacantia to the Union or the State as the case may be depending on the fact as to where the property is situate. So, corresponding to extinguishment of title of the real owner there may be vesting of the property to the state or Union by bona Vacantia there cannot be a corresponding or deemed vesting of title to third party. 21. Consequently the second appeal is dismissed. 22. However, no order as to cost. __________