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2015 DIGILAW 161 (GAU)

Basanti Devi and Ors. v. Mahesh Singh and Ors.

2015-02-11

SUMAN SHYAM

body2015
Suman Shyam, J. 1. This second appeal is directed against the judgment and decree dated 06.07.2012 passed by the learned District Judge, Sonitpur, Tezpur in Title Appeal No. 05/2006 affirming the judgment dated 15.05.2006 and decree dated 03.07.2006 passed by the Civil Judge (Sr. Dn.), Sonitpur, Tezpur in Title Suit No. 17/1999 affirming the same. Heard Mr. S. Dutta, learned Sr. counsel for the appellant also heard Ms. B. Choudhury, learned counsel for respondents appearing on the strength of a caveat. 2. The brief facts of the case is that the plaintiff had purchased the suit land from its registered owner Smti. Kausalya Devi by means of a registered deed of sale pursuant where to the possession of the land was also delivered. Smti. Kausalya Devi has purchased the suit land from Tefuluddin Sheikh by means of an oral contract. However, subsequently the legal heirs of Tefuluddin Sheikh had executed a registered sale deed bearing No. 323/1992 dated 05.03.1992 in favour of Smti. Kausalya Devi, where after she had sold the suit land to the predecessor in interest of the plaintiff Late Ram Chandra Singh by means of a registered deed of sale bearing No. 1885/1992 dated 26.11.1992. On the basis of the said purchase and possession the name of Ram Chandra Singh was also mutated in the records of right. On the death of Ram Chandra Singh, the plaintiff being his legal heirs inherited the said land and continued with possession by making cultivation thereon. On 29.05.1999 the plaintiff/defendant forcefully tracepassed into the suit land by breaking the boundary of bamboo fencing by cutting and removing trees and constructing ekchali house thereupon. Appellant/defendant No. 3 had also fraudulently mutated his name in respect of the suit land behind the back of the plaintiff/respondent. Such conduct of the appellants/defendants having clouded the title of the plaintiff, they were compel to file the title suit for declaration of right title interest over the suit land, recovery of possession and for other consequential relates. 3. The appellants/defendants contested the suit filed by the plaintiff by filing their written statement whereby the contesting defendants have raised the plea of limitation, of non-joinder of necessary parties and other formal pleas. The pleaded stand of the appellants/defendants is that although the suit land was sold by Tefuluddin Sheikh to Smti. 3. The appellants/defendants contested the suit filed by the plaintiff by filing their written statement whereby the contesting defendants have raised the plea of limitation, of non-joinder of necessary parties and other formal pleas. The pleaded stand of the appellants/defendants is that although the suit land was sold by Tefuluddin Sheikh to Smti. Kausalya Devi, the possession of the land could never be delivered to her since the appellants/defendants had been possessing the suit land since prior to 1982. Consequently, when Kausalya Devi executed the registered deed of sale in favour of Ram Chandra Singh, she could not also delivered possession of the suit land in favour of the purchaser because of the fact that appellants/defendants were in continuous possession of the suit land. Although the appellants/defendants have not denied or dispute the execution of the registered deed of sale as mentioned above, they have claimed to have perfected title over the suit land by adverse possession. The appellants/defendants had also taken alternative plea that Ram Chandra Singh the predecessor in interest of the plaintiffs/respondents had relinquished his claim over the suit land in lieu of an amount of Rs. 80,000/- paid to him by appellant/defendant No. 3 pursuant to which an unregistered deed was also executed by Ram Chandra Singh. 4. On the basis of the pleadings the learned trial court framed as many as seven issues. Since the defendants did not deny or dispute the execution of the title deeds by the vendors, hence, the core issue that was required to be adjudicated was as regards the claim made by the appellants/defendants of adverse possession. Based on the pleadings as well as materials on record the learned trial court recorded an finding to the effect that the defendants/appellants had failed to make out a case of adverse possession in their favour. Since the trial court decided the said issue in favour of the plaintiffs, hence, findings on other issues went in favour of the plaintiffs/respondents, hence, the suit was decreed by the trial court. 5. The Judgment and Decree passed by the learned trial court was taken in an appeal before the court of learned District Judge, Sonitpur, Tezpur in Title Appeal No. 05/2006 whereby the first appellate court by Judgment and Decree dated 06.07.2012 dismissed the appeal by affirming the judgment dated 15.05.2006 and decree dated 03.07.2006 passed by the learned Civil Judge (Sr. Dn.), Sonitpur, Tezpur. Dn.), Sonitpur, Tezpur. Being aggrieved the instant second appeal has been preferred by appellants/defendants. 6. It is a settled law that burden to prove and establish perfecting of title by way of adverse possession lies on the parties to asserting it Said burden is quite heavy and will have to be discharged on the basis of cogent evidence supported by specific pleadings. It is settled law that in order to succeed with the plea of adverse possession the party claiming will have to succeed in showing that the possession and animus possidendi co-exists. Mere length of possession without any hostile animus cannot perfect the title by way of adverse possession. There is a need to specifically plead as to from which date and in what manner this possession had become hostile to that of the true owner. On perusal of the written statement filed by the appellants/defendants, it can be seen that they have failed to specifically plead as to from which date the possession over the suit land had become hostile. On perusal of the impugned judgment it can be seen that the learned court below had recorded concurrent findings of facts holding that plaintiffs/respondents had been able to prove and establish their title over the suit land by leading cogent evidence on record. On the contrary, the appellants/defendants have failed to establish their plea of adverse possession by bringing in evidence on record. Such being the findings of facts and taking note of the absence of proper plea in the written statement so as to support the claim of adverse possession made by the appellants/defendants, I do not find any justification to disturb the concurrent finding of the facts recorded by the court below on the contentious issues. Consequently, the substantial question of law formulated by the appellants/defendants do not raise for decision in the facts of the case. In that view of the matter this second appeal stands dismissed.