Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1087 (GAU)

Tarini Kanta Das v. Pradeep Das

2015-08-26

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. U. Dutta, learned counsel for the appellants. Also heard Mr. P.K. Kalita, learned counsel for the respondents. 2. This appeal is preferred by the plaintiff against the judgment and decree dated 19.01.2007 passed by the learned Civil Judge, Lakhimpur in Title Appeal No. 5/2006, upholding the judgment and decree dated 27.09.2006 passed by the learned Munsiff No. 1, North Lakhimpur in Title Suit No. 30/2006. 3. This second appeal was admitted to be heard by an order dated 14.11.2007 on the following substantial questions of law:-- "(i) Whether the suit filed by the plaintiff/appellant is barred by time? (ii) Whether the defendants' title over the property can be declared by right of adverse possession simply on the ground that he has possession over the land for more than 12 years?" 4. After some hearing had taken place, this court considers it appropriate to also frame another substantial question of law to the following effect: "Whether the learned Trial Court was correct in deciding Issue No. 3 relating to right, title and interest in respect of the suit land against the plaintiff?" 5. The hearing had commenced yesterday and Mr. Kalita, learned counsel for the respondents submits that although one substantial question of law is framed to-day, there is no difficulty in proceeding with the matter and he will not seek adjournment on this count. 6. The plaintiff and one Nishi Kanta Das are brothers and Nishi Kanta Das was elder to the plaintiff. Defendant Nos. 1 to 4 in the suit are sons of Late Nishi Kanta Das and defendant No. 5 is the wife of Late Nishi Kanta Das. Defendant No. 6 is the wife of defendant No. 1. 7. The case of the plaintiff is that he purchased land measuring 3 Katha from one Md. Nasimuddin Ahmed by a registered sale-deed dated 15.02.1971 and after obtaining permission from the North Lakhimpur Municipal Board, constructed a small kutcha house. One more house was constructed after taking similar permission on 10.07.1972 and on 02.03.1976, the plaintiff took permission for construction of a permanent house. Construction being not completed, permission was extended by an order dated 27.05.1978. After completion of the house, the plaintiff started living there with his family and the land purchased was also partitioned in a partition suit. One more house was constructed after taking similar permission on 10.07.1972 and on 02.03.1976, the plaintiff took permission for construction of a permanent house. Construction being not completed, permission was extended by an order dated 27.05.1978. After completion of the house, the plaintiff started living there with his family and the land purchased was also partitioned in a partition suit. The brother of the plaintiff, who was a Railway employee, did not have a place of his own and on his retirement, he was allowed by the plaintiff to reside in one of the houses constructed over the suit land with the understanding that he would shift after purchasing his own land. The elder brother had 3 marriageable daughters at the relevant point of time and they were married off from the plaintiff's house. Requests were made from time to time to give vacant possession, but on entreaties of the brother, he was allowed to continue to reside thereon with his family. However, the brother died about 6 years prior to filing of the suit. The defendant Nos. 1 to 4 are successful businessmen and financially sound and the number of members in the family of the plaintiff had also increased and therefore, the suit rooms were required by the plaintiff. On 26.08.2005, when request was made for giving vacant possession, to defendants threatened to kill the plaintiff and refused to deliver possession and this prompted the plaintiff to file the suit. The schedule of the plaint refers to 7 1/2 lecha out of land measuring 3 Katha where the rooms are situated in which the defendants are residing. 8. The defendants filed written statement stating that the brother of the plaintiff gave money to the plaintiff to buy land and to construct the houses thereon. But the plaintiff purchased the property in his name. On good faith, the land document was never checked up by the brother of the plaintiff and the fact that the land was purchased only in the name of the plaintiff came to light only when the suit was filed. It is also pleaded that upon approval being granted by Nishi Kanta Das, plaintiff constructed a 3-room R.C.C. building and defendant No. 1 resided there in the year 1979 while he was a student of N.L. Commerce College and he had also, during that time, rented out 2 rooms to 4 other college students. It is also pleaded that upon approval being granted by Nishi Kanta Das, plaintiff constructed a 3-room R.C.C. building and defendant No. 1 resided there in the year 1979 while he was a student of N.L. Commerce College and he had also, during that time, rented out 2 rooms to 4 other college students. Plaintiff had taken Rs. 65,000/- from Nishi Kanta Das for his daughter's marriage, which is also admitted by the plaintiff in a proceeding under Section 498-A IPC. It is also pleaded that though the plaintiff had taken half of the total value of the 3 Katha land from Nishi Kanta Das, the plaintiff mentioned himself as a sole purchaser in the deed. It is asserted that the defendant No. 1 had been in possession of the land since 1979 and since 1982, he was in possession thereon along with his parents. At times they had also done minor repairs without any objection from the plaintiff. The defendants also stated that they are in adverse possession as they were in possession since 1979. 9. On the pleadings of the parties, the learned Trial Court framed the following issues: "1) Whether there is cause of action for filing of the suit? 2) Whether law of limitation bars the suit? 3) Whether plaintiff got right, title and interest over the suit land? 4) Whether defendants got right, title and interest over the suit land through adverse possession since 1979? 5) Whether plaintiffs are entitled to the reliefs as prayed for? 6) To what relief/reliefs parties are entitled to?" 10. The plaintiff had examined 4 witnesses and exhibited a number of documents including the sale-deed and the patta as Ext-1 and Ext-8, respectively. Though the witnesses of the plaintiff's were cross-examined, defendants did not adduce any evidence. 11. The learned Trial Court, in Issue No. 2, held that as the plaintiff did not indicate on which date the plaintiff asked defendants to vacate the suit land, cause of action of the suit arose in the year 1982 when the plaintiff allowed the father of the defendants to reside at the house of the plaintiff and therefore, suit was barred by limitation. 12. The learned Trial Court observed that none of the witnesses were examined by the plaintiff to prove execution of Ext-1. At the same time, as the plaintiff had admitted taking Rs. 12. The learned Trial Court observed that none of the witnesses were examined by the plaintiff to prove execution of Ext-1. At the same time, as the plaintiff had admitted taking Rs. 65,000/-, the learned Trial Court recorded the finding that the defendants must be entitled to get half of the share of the land purchased by the plaintiff through Ext-1. To say the least, both these observations of the learned Trial Court are inconsistent. From the suggestions given to the witnesses of the plaintiff, the learned Trial Court also observed that the plaintiff ventured to obtain sale-deed only in his name in view of the credulous character of his brother and accordingly, held that plaintiff does not have right, title and interest over the suit land. Issue No. 4 was decided against the plaintiff holding that the possession of more than 12 years had been completed by the defendants, which is an admitted fact, and as per admission of PW-1, all the ingredients of adverse possession are found in favour of the defendants. Accordingly, the suit was dismissed. 13. The learned lower Appellate Court affirmed the judgment of the learned Trial Court. The learned lower Appellate Court, while discussing Issue Nos. 2 and 4, held that plaintiff is bound to prove his possession within 12 years of the suit when the plaintiff pleaded permissive possession. In coming to the aforesaid conclusion, the learned lower Appellate Court relied on a judgment of the Madras High Court in Official Receiver v. Govindaraju, reported in AIR 1940 Mad. 798 (FB). As the defendants had been able to establish that they had been occupying the suit land since 1979, the suit was held to be barred by limitation and accordingly, right, title and interest over the suit land was declared in favour of the defendants by way of adverse possession. 14. It will appear that in view of the aforesaid finding, the learned lower Appellate Court may have considered discussion on Issue No. 3 to be redundant and therefore, there was no discussion on Issue No. 3. 15. Mr. U. Dutta, learned counsel for the appellants has submitted that the law relating to adverse possession had undergone a sea-change and the decision relied on by the learned lower Appellate Court was in the context of provisions as contained in Articles 142 and 144of the Limitation Act, 1908. 15. Mr. U. Dutta, learned counsel for the appellants has submitted that the law relating to adverse possession had undergone a sea-change and the decision relied on by the learned lower Appellate Court was in the context of provisions as contained in Articles 142 and 144of the Limitation Act, 1908. It is submitted by him that law is well settled that it is for the defendant who takes a plea of adverse possession to establish by adducing cogent and reliable evidence that he was in uninterrupted, hostile and continuous possession inimical to the interest of the plaintiff. The defendant had not even chosen to adduce any evidence in support of their faint plea taken in the written statement regarding adverse possession. It is also utterly perverse that there was admission on the part of PW-1 that the defendants were in adverse possession as recorded by the learned Trial Court. Mr. Dutta has relied on the following judgments: (i) Md. Mohammad Ali (Dead) By Lrs v. Sri Jagadish Kalita and Ors, reported in (2004) 1 SCC 271 (ii) Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors, reported in (2009) 16 SCC 517 and (iii) Amiya Bala Dutta v. Mukut Adhikari and Ors, reported in 1998 (4) GLT 137. 16. Mr. P.K. Kalita, learned counsel for the respondents has submitted that it is the bounden duty of the plaintiff to prove his case and even if the defendant does not adduce any evidence, then also it will not automatically entitle the Court to pass a decree in favour of the plaintiff. It is submitted by him that the learned Trial Court rightly held that the sale-deed was not proved and therefore, the plaintiff did not have right, title and interest in respect of 3 Kathas of land. He has also argued that it is an admitted position that plaintiff had taken Rs. 65,000/- and therefore, it leads credence to the case of the defendants that the suit land ought to have been purchased in the name of both the brothers. Defendants being in continuous possession from 1982, as admitted by the plaintiff, learned counsel submits that no interference is called for in this second appeal when the learned courts below had concurrently dismissed the suit of the plaintiff. 17. I have considered the submission of the learned counsel for the parties and have perused the evidence on record. 18. Defendants being in continuous possession from 1982, as admitted by the plaintiff, learned counsel submits that no interference is called for in this second appeal when the learned courts below had concurrently dismissed the suit of the plaintiff. 17. I have considered the submission of the learned counsel for the parties and have perused the evidence on record. 18. The evidence on record discloses that brother of the plaintiff retired from service in the year 1982 and he had expired in the year 1998. It is also borne out from the evidence on record that brother of the plaintiff did not have any other land. It is not in dispute that the plaintiff was the purchaser in the registered sale-deed Ext. 1. Sale-deed was exhibited by the plaintiff without any objection of the defendants. The case of the defendants as projected during the course of cross-examination as well as in the written statement and also as noted by the learned Trial Court is that the sale-deed ought to have contained the name of brother of the plaintiff also. In essence, the defendants are not questioning the purchase of the property in question, but are staking a claim that the brother of the plaintiff had also contributed and accordingly, sale-deed ought to have executed in the name of the two brothers. The sale-deed was executed in the year 1971 and it is difficult to accept that for long 27 years, the brother of the plaintiff would not know that sale-deed was not executed in his name. It is to be noted that the brother of the plaintiff was a Travelling Ticket Examiner of the Indian Railways and therefore, he was not a rustic man. It is also to be noted that even to sustain the plea taken in the written statement that, in fact, some money was paid by the brother of the plaintiff towards consideration amount of the sale-deed, they have not led any evidence. The amount i.e Rs. 65,000/-, admitted by the plaintiff to have been taken from his brother, was in a different context altogether, namely, at the time of marriage of his daughter. It cannot be held as held by the learned Trial Court that because the plaintiff had admitted taking of Rs. 65,000/-, the brother of the plaintiff must have half share of the suit land. Such a reasoning and conclusion cannot be countenanced in law. It cannot be held as held by the learned Trial Court that because the plaintiff had admitted taking of Rs. 65,000/-, the brother of the plaintiff must have half share of the suit land. Such a reasoning and conclusion cannot be countenanced in law. None of the courts below had taken note of Ext-9, the patta issued in favour of the plaintiff. This Court in Amiya Bala Dutta (supra) had held that patta is a document of title. In view of the above discussions, there is no doubt whatsoever that the plaintiff had purchased the property in question. In other words, the plaintiff has got right, title and interest in respect of the land covered by the sale-deed in question, namely, 3 Kathas of land. 19. In Hemaji Waghaji Jat (supra), the Apex Court reiterated the principle that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. 20. In a suit governed by Article 65 of the Limitation Act, 1963, the plaintiff will succeed if he proves his title and it will be no longer necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act of 1908, that he was in possession within 12 years preceding filing of the suit. On the contrary, it would be for the defendants so to prove if he wants to defeat the plaintiff's claim to establish his title by all adverse possession. The courts below totally misdirected in appreciating the legal position. [(See Md. Mohammad Ali (Dead) (supra)]. The case cited in Official Receiver (supra) was in the context of the Limitation Act, 1908, where the law relating to adverse possession was not the same as it is under the Limitation Act, 1963. 21. On the basis of materials on record, it is crystal clear that the plaintiff had allowed his brother to reside in the suit land by way of permissive occupation and it is in that manner the defendants continued to reside thereon all these years. It is settled law that mere possession, even if it is true, for any number of years will not clothe a person in enjoyment of the property with the title by adverse possession. It is settled law that mere possession, even if it is true, for any number of years will not clothe a person in enjoyment of the property with the title by adverse possession. Adverse possession, in a sense, is based on the presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. Plea of adverse possession is not a pure question of law, but a blended one of fact and law. A person who claims adverse possession must show: (a) on what date he came into possession, (b) what was the nature of possession, (c) whether the factum of possession was known to the other party, (d) how long has his possession continued, and (e) his possession was open and undisturbed. In order to succeed a person pleading adverse possession must clearly plead and establish all facts necessary to establish his adverse possession. In terms of Article 65 of the Limitation Act, 1963, 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. Therefore, there must be intention to dispossess. Animus possidendi is one of the ingredients of adverse possession. A peaceful, open, hostile and continuous possession as engraved in the maxim nec vi, nec clam, nec precario is necessary to constitute adverse possession. The fact that the defendants were in continuous possession is not akin to adverse possession. Mere possession for howsoever long period does result in adverse possession. 22. The defendants shied away from examining any witness in support of their claim. The concurrent finding of the courts below in the instant case had arisen from perversity as in absence of any specific pleading and despite non-examination of any witness to support the feeble plea raised in the written statement, suit of the plaintiff was dismissed and title of the defendants was declared on the basis of adverse possession on wrong interpretation of Article 65 of the Limitation Act, 1963. 23. Resultantly, the impugned judgments of the learned Courts below are set aside. The substantial questions of law are answered accordingly in favour of the appellants. The suit of the plaintiff is decreed. No cost. 24. Registry will send back the records.