Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 228 (GAU)

PRAN KRISHNA BASU v. SRABAN KUMAR BIHANI

2014-02-24

A.M.SAPRE

body2014
JUDGMENT Heard Mr. TJ Mahanta, learned counsel for the appellant and Ms. B. Sharma, learned counsel appearing for the respondents. This is a second appeal filed by the defendants of Title Suit No.2 of 2007 and appellant of Title Appeal No.2 of 2011 under Section 100 of Code of Civil Procedure against the judgment/decree dated 24.1.2013 passed by the District Judge, Golaghat in Title Appeal No.2 of 2011 which in turn arise out of judgment/decree dated 30.9.2011 passed by the learned Civil Judge, Golaghat in Title Suit No.2 of 2007. By the impugned judgment and decree, the First Appellate Court dismissed the appeal filed by the defendants and affirmed the judgment and decree passed by the Trial Court which decreed plaintiff’s suit for declaration and possession of the suit land on the basis of his title against the defendant. In this appeal, the question that arises for consideration is whether the appeal involves any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure and, if so, what is that question which enables the Court to admit this appeal ? Having heard the learned counsel for the appellants (defendants) and on perusal of the records of the case, I do not find any merit in this appeal as, in my opinion, it does not involve any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure. The respondent filed a suit against the appellant in relation to suit land for declaration and possession of the suit land. The suit was based on title of the plaintiff. The appellant’s defence was that of adverse possession. According to defendant, he perfected his ownership rights over the suit land on the strength of adverse possession qua the plaintiff and, hence, plaintiff has no right to claim possession of the suit land. As stated (supra), both the Courts below (Trial Court as well as the First Appellate Court) turned down the plea of adverse possession of the defendants which he had taken in the written statement against the plaintiff. It was held and rightly that plea of adverse possession was not made out on facts. The two Courts then held that plaintiff has established his title over the suit land and, accordingly, passed the decree. It was held and rightly that plea of adverse possession was not made out on facts. The two Courts then held that plaintiff has established his title over the suit land and, accordingly, passed the decree. It is a settled principle of law that plea of adverse possession is essentially a plea based on facts and is required to be pleaded with sufficient details and is to be proved on the basis of adequate oral and documentary evidence by the party who raises it. The burden to prove such plea is always on the party who sets it up. It is a difficult plea to sustain because once it is proved, it results in extinguishment of title of original owner. Once a finding is returned by the Trial Court and is upheld by the First Appellate Court either way, then such finding being a concurrent finding of fact in nature is binding upon the second appellate Court. It is only when such finding is pointed out to be against the pleading or against the evidence or against any provisions of law or when it is perverse to the extent that no judicial man with average capacity can record, such finding may consider to be binding upon the second appellate court. Such is not the case here. Both the Courts below decreed the suit on the basis of title of the plaintiff which was duly proved. Similarly, both the Courts on appreciation of evidence held that defendents failed to prove the plea of adverse possession over the suit land thereby was not able to discharge the burden. Such finding being concurrent finding of fact is binding on this Court. I do not, therefore, find any substantial question of law in these concurrent finding of fact. To conclude, the second appeal is dismissed in limini involving no substantial question of law. No cost.