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2015 DIGILAW 160 (GAU)

Babul Bora v. Tuleswar Bora

2015-02-11

SUMAN SHYAM

body2015
JUDGMENT Suman Shyam, J. 1. This Second Appeal has been filed against the judgment dated 17.08.2004 and decree dated 21.08.2004 passed by the learned Additional District Judge, Nagaon in Title Appeal No. 3/2002 dismissing the appeal and affirming the judgment dated 22.01.2002 and decree dated 28.01.2002 passed by the learned Civil Judge (Senior Division), Nagaon in Title Suit No. 41/1999. The brief facts of the case emerging from the records are that plaintiff had purchased a plot of land measuring 1 bigha 15 lechas covered by dag No. 52 of P.P. No. 169 of village Afutali under Pakhimoria mouza in the district of Nagaon from its registered owner Rudraram Bora i.e. the proforma defendant No. 2, by means of a registered deed of sale No. 1403/98 dated 22.09.1998 for a consideration of Rs. 42,000/- pursuant whereto the possession of the land was delivered to him. The aforesaid plot of land measuring 1 bigha 15 lechas described in the schedule to the plaint is the suit land. Originally four brothers, namely, Umesh Bora, Rudraram Bora, Bhogram Bora and Jiban Bora owned certain plots of land under four different Dags of Patta No. 169. Pursuant to an amicable settlement between the brothers, the suit land covered by Dag No. 52 fell into the share of the proforma defendant No. 2, Rudraram Bora. The defendant No. 1 is one of the sons of Rudraram Bora who was disowned by his father as he disobeyed his father. After the sale deed was executed by the proforma defendant No. 2, the defendant No. 1 dispossessed the plaintiff from the suit land by forcefully entering into the same and illegally occupied the land by constructing a house on a part of the land thereby denying the right, title and interest of the plaintiff over the suit land. Hence the suit by the plaintiff for declaration of right, title and interest over the suit land, for recovery of possession by evicting the defendant No. 1 and for other consequential reliefs. 2. The defendant No. 1 contested the plaintiffs suit by filing his written statement whereby he had questioned the maintainability of the suit, inter alia, on the ground of non-joinder of necessary party; the suit being barred by limitation and claimed the property by adverse possession. 2. The defendant No. 1 contested the plaintiffs suit by filing his written statement whereby he had questioned the maintainability of the suit, inter alia, on the ground of non-joinder of necessary party; the suit being barred by limitation and claimed the property by adverse possession. The defendant No. 1 had denied the execution of the sale deed by his father and also denied the fact that there was any mutual partition of the properties between the four brothers pursuant whereto the proforma defendant No. 2 ever possessed the suit land. It is the case of the defendant that the plaintiff had got the sale deed executed in a fraudulent manner by misleading his father. It was further pleaded in the written statement that the defendant No. 1 was driven out as he married against the wishes of his father. It is the case of the defendant No. 1 that since the entire property was being looked after by his uncle Bhogram Bora, hence, considering the helpless condition of the defendant his uncle Bhogram Bora and other brothers relinquished their right and possession over the land and permitted the defendant No. 1 to remain in possession thereof. Accordingly, he has been living in the suit land since last 13/14 years by constructing a house, planting trees and also by digging up a fishery. The defendant No. 1, therefore, claimed to have acquired title over the suit land by adverse possession. 3. It may be mentioned herein that Rudraram Bora, then alive, was impleaded in the suit as the proforma defendant No. 2 whereas the proforma defendants No. 3 to 7 were the legal heirs of the other three brothers, namely, Umesh Bora, Bhogram Bora and Jiban Bora. Despite due service of summons none of the proforma defendant No. 2 to 7 contested the suit filed by the plaintiff. 4. On the basis of the pleadings of the parties the learned trial Court had framed as many as 9 issues which are as follows:-- "(1) Whether there is a cause of action for the suit? (2) Whether the suit is maintainable in its present form? (3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether the suit is barred by limitation and adverse possession? (5) Whether the sale deed by which the plaintiff purchased the suit land is forged? (2) Whether the suit is maintainable in its present form? (3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether the suit is barred by limitation and adverse possession? (5) Whether the sale deed by which the plaintiff purchased the suit land is forged? (6) Whether the plaintiff has right, title and interest over the suit land? (7) Whether the plaintiff has been dispossessed from the suit land by the defendant? (8) Whether the plaintiff is entitled to the decree as prayed for? (9) To what relief/reliefs are the parties entitled to?" 5. The plaintiff side examined four witnesses and produced documentary evidence while the defendant had examined two witnesses including himself. On the basis of the evidence and materials available on record the learned trial Court decided all the issues in favour of the plaintiff thereby decreeing the suit filed by the plaintiff. 6. Being aggrieved by the aforesaid judgment and decree passed by the learned trial Court, the defendant No. 1/appellant had preferred Title Appeal No. 3/2002 in the Court of Additional District Judge, Nagaon. The said Title Appeal was also dismissed by the learned First Appellate Court by upholding the judgment and decree passed by the trial Court. 7. Being aggrieved, the defendant No. 1 as appellant has preferred the Second Appeal. The Second Appeal was admitted by this Court to be heard on the following substantial questions of law:-- "(I) Whether the learned Lower Appellate Court misconstrued the law of adverse possession in dismissing the appeal and affirming the decree of the learned trial court? (II) Whether the learned Lower Appellate Court erred in law in recording its findings with regard to the title and possession of the respondent/plaintiff by leaving out of consideration material basis of evidence, in support of the case of the appellant/defendant?" 8. I have heard Ms. P. Bhattacharjee, learned counsel appearing for the appellant and also heard Mr. P.J. Saikia, learned counsel for the respondent. 9. Ms. I have heard Ms. P. Bhattacharjee, learned counsel appearing for the appellant and also heard Mr. P.J. Saikia, learned counsel for the respondent. 9. Ms. P. Bhattacharjee, learned counsel for the appellant, submits that it is the pleaded case of the appellant/defendant No. 1 that he had been permitted to live in the portion of the suit land by his uncle Bhogram Bora who was looking after the land and in his capacity as such the appellant/defendant No. 1 has been residing in the suit land for nearly 13/14 years by constructing a house, planting trees and also by digging up a fishery. Therefore, he had perfected title by adverse possession over the land. In such view of the matter the court below failed to appreciate that plaintiff/respondent was not entitled to any decree as the suit itself was barred by limitation. She further submitted that the sale deed under which the plaintiff/respondent is claiming title is a fraudulent one and as such no title could have been acquired by the plaintiff/respondent on the basis of such sale deed. Drawing the attention of this Court to the pleadings in the written statement, Ms. Bhattacharjee submits that since there is a categorical denial of amicable partition of the properties between the four brothers, hence, the first appellate court erred in law in failing to consider that the proforma defendant No. 2 could not have conveyed any title to the plaintiff by the registered deed of sale unless it was established that there was in fact amicable partition amongst the brothers. In such view of the matter the judgment and decree under appeal is not sustainable in law and hence liable to be set aside. 10. Mr. P.J. Saikia, learned counsel for the respondent/plaintiff, on the other hand submits that the Courts below have recorded concurrent findings of fact as regards the acquisition of title by the plaintiff and also his illegal dispossession by the appellant/defendant No. 1. Such findings of fact being based on materials on record, do not call for any interference in a Second Appeal. He further submits that the appellant/defendant No. 1 is claiming to have been put in possession of the suit land as a permissive occupier and therefore there is no question of he claiming any title over the land by way of adverse possession. He further submits that the appellant/defendant No. 1 is claiming to have been put in possession of the suit land as a permissive occupier and therefore there is no question of he claiming any title over the land by way of adverse possession. That apart, the appellant/defendant No. 1 has completely failed to plead and establish his case that he had perfected title by adverse possession. The plaintiff/respondent having purchased the suit land on 22.09.1998 he has instituted the suit in the year 1999 and therefore the suit cannot be said to be barred by limitation. As such there was no infirmity in the judgment and decree under appeal. 11. I have considered the submissions made by and on behalf of both the parties. On a perusal of the records it is evident that the plaintifi7respondent had produced the registered deed of sale Ext-1 by means of which he had purchased the suit land from the pro-forma defendant No. 2. In the sale deed itself it has been mentioned that the possession of the land is also being delivered simultaneously. The schedule to the Ext-1 clearly gives the particulars of the dag No. , patta No. as well as boundaries of the suit land. PW 2, who is the other son of the proforma defendant No. 2, confirmed the fact that his father had sold the suit land to the plaintiff by means of Ext-1 and that he had also put his signature in the sale deed as a witness. 12. PW 4, who was the scribe of the sale deed, testified to the effect that he had written the Ext-1 sale deed by means of which Rudraram Bora had sold the suit land to the plaintiff. He further deposed that Rudraram Bora had in fact put his signature in the sale deed in his presence and the said witness had also identified the signature of Rudraram Bora in the Ext-1 deed. PW 4 further confirmed that the Ext-1 was registered under the law. 13. From the aforesaid evidence led by the plaintiff side it is clear that the plaintiff had been able to prove the execution of the sale deed. PW 4 further confirmed that the Ext-1 was registered under the law. 13. From the aforesaid evidence led by the plaintiff side it is clear that the plaintiff had been able to prove the execution of the sale deed. Further the plaintiff had also led evidence in support of his plea that he has been illegally dispossessed from the suit land by the appellant/defendant No. 1 after the same was sold to him by the proforma defendant No. 2 by means of a registered deed of sale. The appellant/defendant No. 1 could not bring in any evidence on record to disprove and contradict the said facts. In that view of the matter the Issues No. 5, 6 and 7 have been rightly decided by the learned Court below based on cogent evidence available on record. 14. As regards the question of adverse possession, it can be seen from the judgment of the learned trial Court that the appellant/defendant No. 1 did not press for a decision on the issue before the trial Court. Such observation made by the learned trial Court had also not been assailed in the memorandum of appeal filed in connection with Title Appeal No. 3/2002. That is why, it appears that the First Appellate Court did not even consider the said issue while deciding the Title Appeal No. 3/2002. 15. It is the settled law that a party claiming to have perfected title by way of adverse possession would have a heavy burden to plead and establish, by leading cogent evidence, the fact that his possession over the suit land has been open, continuous and hostile to the title of the real owner. Such assertions of fact have to be established by leading cogent evidence on record. In the case of Konda Lakshmana Bapuji v. Govt. of A.P. & Ors. reported in (2002) 3 SCC 258 . the Hon'ble Apex Court had observed that mere possession of the land, however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. Such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription, both the possession as well as the animus possidend must be shown to co-exist. Such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription, both the possession as well as the animus possidend must be shown to co-exist. At the commencement of possession if there is no animus possidendi then the period of for the purpose of reckoning adverse possession will commence from the date when both actual possession and assertion of title by possessor are shown to co-exist. 16. The appellant/defendant No. 1 has not given any specific particulars in his written statement as to from which date and in what manner his possession had become adverse to that of the true owner. Since it is the pleaded case of the defendant that he has been put in possession of the land as a permissive user by his uncle, the plea of adverse possession would fall flat on such count alone. Moreover, the appellant/defendant No. 1 has not been able produce any member of the family including the heirs of Bhogram Bora as a witness to support his version set out in the written statement. The Plaintiffs suit being one for recovery of possession based on title by way of purchase of the land by registered deed dated 22-09-98 and the suit having been filed in the year 1999, the same was evidently not barred by limitation under Article 65 of the Limitations Act, 1963. 17. Another significant aspect of the matter that needs to be pointed out herein is that from a perusal of the jamabondi Ext-2 it can be seen that the name of Rudraram Bora is duly recorded in respect of 1 bigha 15 lechas of land covered by dag No. 52 of Periodic Patta No. 169. Ext-2 discloses that the total land under dag No. 52 was 1 bigha 15 lechas. Ext 1 sale deed clearly mentions the boundary of the suit land. The proforma defendant No. 2 himself as well as the legal heirs of other three brothers were made parties to the suit. If there was any dispute as regards mutual partition of the properties amongst the co-sharers then it was open to the proforma defendants or any one of them to contest the case of the plaintiff which they did not do. If there was any dispute as regards mutual partition of the properties amongst the co-sharers then it was open to the proforma defendants or any one of them to contest the case of the plaintiff which they did not do. From the above, it is self-evident that the properties once jointly held by the four brothers had in fact been amicably partitioned and that there was no dispute amongst the co-sharers in respect of the suit land. Even PW 2 Bubul Bora, who is a son of the proforma defendant No. 2 and the brother of the appellant/defendant, supported the case of the plaintiff. In that view of the matter the plea taken by the appellant/defendant No. 1 to the effect that the properties were not amicably partitioned between the four brothers is untenable in the facts and circumstances of the case. In view of the foregoing discussions, it is found that the findings of fact recorded by the courts below were based on material evidence on record and as such there is no legal justification to disturb such concurrent finding of fact in a Second Appeal. In the result, it is held that the Second Appeal is devoid of any merit and the same is accordingly dismissed. However, having regard to the facts and circumstances of the case there would be no order as to cost. The records be sent back to the court below.