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2015 DIGILAW 1345 (GAU)

Tapan Chakraborty v. Biman Roy

2015-10-14

A.K.GOSWAMI

body2015
JUDGMENT 1. Heard Mr. H. Das, learned counsel for the appellants/defendants. Also heard Mr. M. U. Mondal, learned counsel for the respondents/plaintiff. 2. This appeal is directed against the judgment and decree dated 23.12.2009 passed by the learned District Judge, Goalpara, in Title Appeal No. 3/2003 dismissing the appeal and upholding the judgment and decree dated 08.08.2003, passed by the learned Civil Judge (Senior Division), Goalpara, in Title Suit No. 5/2001. 3. The Second Appeal was admitted for hearing on 20.09.2010 on the following substantial question of law: “Whether the suit of the plaintiff for declaration of right, title and interest by adverse possession over the Government land is maintainable in the absence of the State of Assam as a party defendant?” 4. Subsequently, noticing that by a petition dated 29.07.2003 the plaintiff had prayed for deletion of the prayer made at paragraph (a) to the plaint pertaining to a declaration that the plaintiff had acquired valid title of the suit land by adverse possession and that the same was allowed by the learned trial court by order dated 29.07.2003, it was opined that the substantial question of law, formulated by the order dated 20.09.2010, may not determine the fate of the appeal and, accordingly, by an order dated 20.03.2015, following two substantial questions of law were framed: “1. Whether the courts below erred in law in decreeing the suit by declaring possessory title in favour of the respondent/plaintiff when such ground had neither been pleaded nor framed as an issue? 2. Whether the findings and decision of the courts below have suffered perversity on account of substantial question No. 1?” 5. The case of the plaintiff is that the suit land is a khas land and the plaintiff’s father is possessing the same from the year 1969 openly and continuously and, subsequently, he handed over the possession of the same to the plaintiff and, thus, the plaintiff and his father are possessing the suit land adverse to the knowledge of the defendants and others including the State of Assam. A residential house was also sought to be constructed and construction had also been raised to the level of the plinth, but, subsequently, due to financial stringency, the construction could not be completed. Municipal Holding was also accorded in the name of the plaintiff. A residential house was also sought to be constructed and construction had also been raised to the level of the plinth, but, subsequently, due to financial stringency, the construction could not be completed. Municipal Holding was also accorded in the name of the plaintiff. Taking advantage of the plaintiff’s absence, as he is serving outside Goalpara, where the suit land is located, the defendants trespassed into the suit land in the 3rd week of February, 2001, and sought to raise a boundary wall on the northern side of the suit land beyond which father of the plaintiff has a plot of land which had been allotted to him by the government. The defendants and their friends and companions threatened the plaintiff and sought to occupy the suit land by constructing a club house in the name of Juba Jyoti Sangha. It was asserted that due to adverse possession, the plaintiff had acquired valid right, title and interest over the aforesaid suit land and also he has the right to possess and enjoy the same. 6. In the suit, the following prayers were made: “(a) For a declaration that the plaintiff has acquired valid title to the suit land by adverse possession. (b) For a declaration that the plaintiff has right to possess and enjoy the suit land. (c) For permanent and temporary injunction restraining the defendants and their companions, agents etc. from entering into the suit land and from raising any structures, buildings, walls etc. on it. (d) For a decree of khas possession of the suit land by evicting the defendants and their companions, agents etc. therefrom if during the pendency of the suit the plaintiff is dispossessed from the suit land by the defendants. (e) For costs and other reliefs to which the plaintiff is entitled to under law and equity.” 7. As noticed above, prayer (a) in the plaint stood deleted by way of amendment. 8. Defendant No. 1 filed written statement stating that the plaintiff or his father has no locus standi to bring the suit without impleading the State of Assam. It is stated that Juba Jyoti Sangha, which is a registered club since 1970, is in possession of the land. 8. Defendant No. 1 filed written statement stating that the plaintiff or his father has no locus standi to bring the suit without impleading the State of Assam. It is stated that Juba Jyoti Sangha, which is a registered club since 1970, is in possession of the land. It is also stated that there is a plinth about the size of 15’X15’ but the same had been constructed by Juba Jyoti Sangha and, in absence of Juba Jyoti Sangha, the suit cannot proceed. It is pleaded that there is a land holding certificate in the name of the said Sangha. It is asserted that the plaintiff has no possession and the possession of the plaintiff for a period of 32 years is also denied. 9. The learned trial court held that as no relief was prayed for against the Government, the suit was not bad for non-joinder of the Government of Assam, and finding, on the basis of the evidence of record, that the plaintiff was in possession of the suit land, decreed the plaintiff’s suit for possessory title in respect of 1 Katha 12 Lecha of land, as described in the Schedule to the plaint, subject to paramount title of the State Government and also issuing permanent injunction against the defendants, their men and agents from dispossessing the plaintiff. 10. The learned lower appellate court, as noticed earlier, had also dismissed the appeal affirming the findings recorded by the learned trial court. The learned lower appellate court had also independently appreciated the evidence on record. 11. Mr. Das, learned counsel for the appellants has submitted that he will be confining his arguments to the substantial question of law No. 1 and he will not be pressing the substantial question of law No. 2. Mr. Das has submitted that in absence of any pleading and framing of an issue, declaration of possessory title in favour of the plaintiff is not sustainable in law and the findings recorded by the courts below, that the defendants are not in possession, is perverse and he has taken me through the evidence of the witnesses, more particularly, to the evidence of DW2. 12. Mr. 12. Mr. M. U. Mondal, learned counsel for the respondent, on the other hand, has submitted that it is not correct that there was no pleading with regard to possession and that grant of possessory title is nothing but a declaration of possession in favour of the plaintiff subject to paramount title of the State Government, which is what the learned courts below had done and, therefore, no interference is called for on this count. He has also submitted that it is not that no issue was framed with regard to possession and, in this connection, he has drawn the attention of the Court to Issue No. 5. It is submitted by him that the suffixing of the word “title” to the word “possessory” in the judgment of the learned trial court has got no significance and, in essence, the suit was decreed declaring possession of the plaintiff subject to paramount title of the State Government and injuncting the defendants from forcefully dispossessing the plaintiff. He has also submitted that there is no perversity in the finding recorded in Issue No. 5 declaring possession in favour of the plaintiff. It is further submitted by him that the finding regarding possession is a finding of fact and, in absence of any infirmity in recording such finding in favour of the plaintiff, no interference is called for with the finding of fact so recorded. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 14. A perusal of the plaint goes to show that plea of right, title and interest was taken on the basis of adverse possession. It was further pleaded that the plaintiff had been in possession of the suit land continuously for about 32 years by himself and through his father, and that the defendants are threatening and trying to occupy the suit land and, therefore, the suit was filed to restrain the defendants and their companions to protect the rights of the plaintiff. Accordingly, a prayer for declaration that the plaintiff has right to possess and enjoy the suit land was also made in prayer (b) of the plaint. 15. Possessory title is nothing but a declaration of possession and, in order to determine the question as to whether the plaintiff was in possession, Issue No. 5 was framed. Accordingly, a prayer for declaration that the plaintiff has right to possess and enjoy the suit land was also made in prayer (b) of the plaint. 15. Possessory title is nothing but a declaration of possession and, in order to determine the question as to whether the plaintiff was in possession, Issue No. 5 was framed. Paramount title of the State in respect of the suit land is not disputed by either of the parties and the courts below had also declared the right of the plaintiff to have possession subject to the paramount title of the State over the suit land. 16. During trial, the plaintiff had examined five witnesses including a Lat Mandal, who was examined as PW5. PWs 1 and 2 are the plaintiff and the father of the plaintiff, respectively. PW3 is a mason who constructed the half done plinth and he deposed that on receipt of a notice from the Goalpara Municipality, the work of construction of the plinth was stopped. The said notice was exhibited as Ext.-5. PW4 had deposed that the father of the plaintiff had constructed a thatched house on the suit land and had allowed him to stay there and also to cultivate the land. Accordingly, he was cultivating the suit land and he had resided there for about 7/8 years. He further deposed that though he was not residing there any more, he stated that other than the plaintiff, nobody else was in possession of the suit land. 17. DW2 had stated that he had started to use the suit land to go to his own land situated nearby as the path to his house becomes straighter and shorter and, of late, he had started keeping his vehicle in the said land and he had also constructed an iron gate. No evidence was produced by him to show that a club was in possession of the suit land by examining any members of the club or any other person and, contrary to a stand taken in the written statement, he sought to assert his possession by stating that he had been keeping his vehicle in the suit land and using the suit land as a path. It is also noticed that in his cross-examination, DW2 had admitted that the plaintiff had constructed a house and allowed one Munindra Dey to reside there and do cultivation on the suit land. 18. It is also noticed that in his cross-examination, DW2 had admitted that the plaintiff had constructed a house and allowed one Munindra Dey to reside there and do cultivation on the suit land. 18. On an overall consideration of the evidence on record, both the courts below had concluded in Issue No. 5 that the plaintiff and his father were in possession of the suit land and, on the basis of the evidence of DW2 I am unable to hold that any perversity has crept into in recording the finding as regards possession. 19. In view of the above, I find no merit in this appeal and, accordingly, the same is dismissed. Substantial questions of law are answered against the appellants. No cost. 20. Registry will send back the records.