Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 552 (GAU)

Jamuna Das v. Md. Anisul Hoque

2015-05-12

N.CHAUDHURY

body2015
ORDER : This first appeal on behalf of the defendants of Title Suit No. 36 of 1998 is directed against the judgment and order dated 26.4.2005 whereby the suit of the plaintiff was decreed for declaration of right, title, interest and recovery of khas possession by evicting the defendants No. 1, 2, 3 and 4. The impugned judgment was passed against the appellants/defendants as they failed to cross-examine the witnesses of the plaintiff and to lead evidence of their own after filing written statement. 2. One Md. Anisul Haque as plaintiff instituted aforesaid Title Suit in the court of learned Civil Judge at Jorhat stating that land measuring 13 and 2/3 lechas covered under Dag No.3789 (3669) of P.P. No.341 of Block No. 1 in Jorhat town originally belonged to one Helina Khatoon, the mother of the plaintiff and the profoma defendants No.5, 6 and 7. According to the plaintiff, the original owner while enjoying the suit land died inteste and thereupon plaintiff and the proforma defendants No. 5, 6 and 7 became the owners of the land jointly. Their names were duly mutated in the records of rights on 21.9.1978 vide Mutation Case 355 /75-76. Defendants No. 1, 2, 3 and 4 did not have any right, title and interest over the land but encroached into the same on 21.10.1997. They constructed two bamboo houses on the suit land and dis-possessed the plaintiff for which the plaintiff initiated one proceeding under Section 145 of the Code of Criminal Procedure on 22.10.1997 before the learned Executive Magistrate at Jorhat and the same was registered as Misc. Case No.258 of 1997. The learned Magistrate passed order for attachment of land on 24.10.1997. But since question on title arose in the case, the plaintiff became compelled to file the suit for declaration of right, title and interest and recovery of possession by evicting the defendants. 3. Even after service of notice, defendants did not appear and so the learned trial court by order dated 25.2.1999 decreed the suit ex-parte against defendants No. 1, 2, 3 and 4. Defendants thereafter approached this court vide RFA No. 13 of 1999 and this court by judgment and decree dated 7.4.1999 allowed the appeal and set aside the ex-parte decree. The defendants were given liberty to file written statement and to contest the suit. Defendants thereafter approached this court vide RFA No. 13 of 1999 and this court by judgment and decree dated 7.4.1999 allowed the appeal and set aside the ex-parte decree. The defendants were given liberty to file written statement and to contest the suit. The suit was thereafter transferred to the court of learned Additional District Judge and thereupon the same was re-numbered as Title Suit No. 3 of 1999. The defendants appeared. Defendants No. 1, 2, 3 and 4 submitted a joint written statement while defendants No. 5, 6 and 7 submitted another joint written statement. In the written statement submitted by defendants No. 1, 2, 3 and 4, it was pleaded that the said defendants had been in possession of the land for more than 12 years and acquired adverse possession. In para- 7 of the written statement, defendants No. 1, 2, 3 and 4 denied the averments of the plaintiff made in para-3 of the plaint. In para-8 of the written statement, it was stated that the defendants did not encroach on the suit land on 21.10.1997 and that they had been continuing possession of the suit land by raising their dwelling house for more than the statutory period. Of course, they did not specify as to when they had entered into the suit land and how. They also did not make any specific averment as to whether their possession was adverse since beginning and if not since when. 4. Defendants No. 5, 6 and 7 on the other hand, by filing a joint written statement supported the case of the plaintiff and claimed that they along with the plaintiff have right, title and interest to the suit land being legal heirs of Helina Khatoon and that defendants No. 1, 2, 3 and 4 are trespassers. Defendants No. 5, 6 and 7, therefore, prayed that suit of the plaintiff be decreed. 5. Upon such rival contention of the parties, the learned trial court has framed as many as 7 issues which are quoted below: (1)Whether there is cause of action for this suit? (2)Whether the suit is barred by limitation? (3)Whether the plaintiff and proforma defendants No. 5,6, & 7 have the right, title , interest and possession over the suit land? (4) Whether the plaintiff and proforma defendants No. are entitled to recover khas possession by evicting the defendants from the suit land? (2)Whether the suit is barred by limitation? (3)Whether the plaintiff and proforma defendants No. 5,6, & 7 have the right, title , interest and possession over the suit land? (4) Whether the plaintiff and proforma defendants No. are entitled to recover khas possession by evicting the defendants from the suit land? (5)Whether the defendants have acquired the right, title , interest and over the suit land by way of adverse possession? (6) Whether the plaintiff and proforma defendants No. 5, 6, & 7 are entitled to get a decree of permanent injunction as prayed? (7) Whether the plaintiff and proforma defendants No. 5, 6, & 7 are entitled to get any other reliefs as prayed? 6. In course of trial, plaintiff examined himself as PW-1. Defendants did not cross-examine PW-1 and did not lead any evidence of their own. Under such circumstance, the learned trial court after affording opportunity to the parties, decided the matter ex-parte again against the defendants and passed impugned judgment and decree holding that plaintiff and defendants No. 5, 6 and 7 have right, title and interest to the suit land and that defendants are trespassers and so passed decree of eviction against them. At this stage, the suit was re-numbered as Title Suit No.34 of 2004. It is this judgment which has been brought under challenge in the present appeal. 7. I have heard Ms. B Sharma, learned counsel for the appellant and Mr. S Khound, learned counsel for respondent No. 1. 8. Ms. B Sharma, learned counsel for the appellant would argue that defendants No. 1, 2, 3 and 4 specifically claimed to be in possession of the suit land for more than 12 years and thus they acquired adverse possession to the suit land. According to her, plaintiff failed to prove his case by leading cogent evidence and so learned trial court committed error in decreeing the suit. She further argued that description of the suit land is not adequate. The plaintiff did not mention the names of owner of the land around the suit land and merely gave the dag and patta number and so the suit land is not identifiable. 9. Per contra, Mr. S Khound, learned counsel for the respondent No.1 would argue that defendants having taken defense of adverse possession were duty bound to state since when their possession became adverse. 9. Per contra, Mr. S Khound, learned counsel for the respondent No.1 would argue that defendants having taken defense of adverse possession were duty bound to state since when their possession became adverse. They did not specify when did they came into the possession of the land and did not furnish the required material fact to make out the plea of adverse possession. Moreover, description of the suit land given in the plaint is substantially in compliance of Order VII Rule 3 of the Code of Civil Procedure. With these averments, the learned counsel for the respondent would submit that the appeal be dismissed. 10. I have perused the pleadings of the parties and the evidence available on records. Plaintiff specifically stated in the plaint that his mother Helina Khatoon was the owner of the land. He has proved Exihibit-1, Jamabandi and Exhibit-2, Katcha patta in support of the contention. It appears from Exhibit-1 Jamabandi that by an order passed on 21.9.1998 in Misc. Case No.355/75-76, the SDC allowed mutation in the name of the plaintiff and defendants No. 5, 6 and 7 in place of Helina Khatoon, the original pattadar of the land. Exhibit-2 is the katcha patta in original. It was issued in the name of Helina Khataun. Plaintiff claimed that Helina Khatoon died leaving behind him and defendants No. 5, 6 and 7 as the legal heirs and they continued possessing the same after the death of Helina Khatoon. Such oral statement of the plaintiff is substantiated by Exhibit- 1 and 2, the documents on record. In course of examination-in-chief, plaintiff further claims specifically that on 21.10.1997, defendants No. 1,2,3 and 4 forcefully encroached the suit land and dis-possessed the plaintiff. They made two bamboo houses on the suit land. It is for this reason, the plaintiff instituted Misc. Case No.258 of 1997 under Section 145 Cr.P.C. before the learned Executive Magistrate at Jorhat. Exhibit-3 is the order dated 24.10.1997 which shows that a proceeding was drawn up by Executive Magistrate at the prayer of the present plaintiff and the land was also attached under Section 146 (1) of the Cr.P.C.. Schedule of the land mentioned in Exhibit-3 is the same as that in the plaint. The order of attachment (Exhibit-3) was implemented by police and this is evident from the police report (Exhibit-4). Plaintiff has also exhibited three revenue paying receipts as Exhibit-5, 6 and 7. Schedule of the land mentioned in Exhibit-3 is the same as that in the plaint. The order of attachment (Exhibit-3) was implemented by police and this is evident from the police report (Exhibit-4). Plaintiff has also exhibited three revenue paying receipts as Exhibit-5, 6 and 7. Exhibit- 5 is of the year 1966 whereas Exhibits 6 and 7 are of 1988 and 1999 respectively. The plaintiff thus, specifically stated on oath that they have been in possession of the land on assertion of valid right, title and interest by way of inheritance and that the defendants encroached into the land only on 21.10.1997. Since PW-1 has not been cross-examined, so there is no scope to doubt the correctness or otherwise of such oral evidence of the plaintiff. The learned trial court has noticed such evidence of the plaintiff and thereupon arrived at the finding that plaintiff has succeeded to prove inheritance of the property and possession thereof. The date of its possession, therefore, was duly proved. 11. Defendants No. 1, 2, 3 and 4 in the written statement did not plead any specific case of their own with respect to the title of the suit land. They merely stated that the averments made in para-3 of the plaint as to encroachment by defendants on 21.10.1997 is not correct. They have been in possession of the suit land for over 12 years and so they acquired adverse possession. In so doing, these defendants did not furnish required material facts as to when did they walk into the suit land and as to whether their initial possession was hostile or permissive. They did not plead that their possession was open, hostile but peaceful. Merely claiming that the defendants acquired adverse possession to the suit land is not sufficient. Moreover, having staked claim of adverse possession in para-7 and 8 of the written statement, the defendants did not come to the witness box to prove their own case. The pleaded case of the defendants, therefore, was not established. It is under such circumstance, the learned trial court observed that defendants failed to establish their case of adverse possession and that plaintiff proved his case of inheriting the property and being dis-possessed from the same by defendants on 21.10.1997. The pleaded case of the defendants, therefore, was not established. It is under such circumstance, the learned trial court observed that defendants failed to establish their case of adverse possession and that plaintiff proved his case of inheriting the property and being dis-possessed from the same by defendants on 21.10.1997. The law on adverse possession demands that defendant is to specifically plead the necessary material facts to show the specific date when he /they came into possession of the suit land. Initial possession of the defendants may be hostile or may not be hostile but defendants must plead since when his possession became hostile to the plaintiff. Such possession should be open so that it is known to all. It may not be necessary on the part of the defendants to specifically bring it to the notice of the plaintiff that he has been in possession of the suit land hostile to the interest of the plaintiff but even then such hostile possession should not be stealthy but it should be open. Material fact should be brought on record to enable the court to form an opinion that defendants entered into suit land on a particular date and that from a particular date the possession became hostile to the interest of the plaintiff who is the real owner and even thereafter the plaintiff did not institute the suit within a period of 12 years from the date of the hostile possession. In absence of such material facts the defense on adverse possession cannot be established. Not only pleading these material facts but defendants are also required to prove the same by leading evidence. Here in this case defendants neither pleaded the material fact required to make out adverse possession, nor did they lead any evidence. They failed to come to the witness box to establish 12. Considering the facts and circumstances and evidence available on records, there is no scope to hold that learned trial court has committed any error in appreciating the evidence. The appeal is devoid of any merit. Accordingly it is dismissed. 13. No order as to cost. Send down the records after preparation of the decree. 14. Interim order, if any, stands vacated.