Surobala Talukdar v. On the Death of Keshab Thakuria His Legal Heirs Chitra Thakuria and Ors.
2015-01-27
MANOJIT BHUYAN
body2015
DigiLaw.ai
1. The challenge in this Second Appeal is to the judgment and decree passed by the learned Civil Judge (Senior Division) No.1, Guwahati, in Title Appeal No. 65 of 2000, whereby the judgment and decree passed by the learned Civil Judge (Junior Division) No.1, Guwahati, in Title Suit No. 51 of 1997 dismissing the suit had been affirmed. 2. The short facts unfolding is that the appellant/ plaintiff Smt. Surobala Talukdar instituted the suit for delivery of khas and vacant possession of the suit land by evicting the respondent/ defendant Sri Keshab Chandra Thakuria (now deceased), men and materials and by demolishing the constructions illegally raised by him on the suit land. The defence set up by the respondent/ defendant was that he had been in continuous and uninterrupted possession in the suit land since 1970 by constructing houses and carrying on the business of selling tea from the tea stall standing upon the suit land. According to him, he had occupied the suit land thinking to be sarkari land. Later he came to know that the suit land stood in the name of one Ambika Charan Talukdar. Notwithstanding the fact that said Sri Ambika Charan Talukdar was the owner of the suit land, the respondent/ defendant stated that he continued to retain possession since the year 1970 and such continuous, uninterrupted possession over the suit land has ripened into title by right of adverse possession. 3. As many as 5 (five) issues were framed by the learned trial court which are as follows: “1) Is there any cause of action for the suit? 2) Is the suit barred by law of limitation? 3) Whether the plaintiff has right, title and interest over the suit land? 4) Whether the defendant has been possessing the suit land since 1970 and is title acquired by way of possession? 5) To what relief or relief the plaintiff is entitled?” 4. With regard to the Primary Issues Nos. 2, 3 & 4, both the Trial Court and the First Appellate Court rendered concurrent findings upon consideration of the materials and evidence available on records. Both the Courts below found that the respondent/defendant had been in possession of the suit land since the year 1970 and was operating the tea stall therefrom without any interruption/ disturbance from any quarter.
2, 3 & 4, both the Trial Court and the First Appellate Court rendered concurrent findings upon consideration of the materials and evidence available on records. Both the Courts below found that the respondent/defendant had been in possession of the suit land since the year 1970 and was operating the tea stall therefrom without any interruption/ disturbance from any quarter. Even the pattadar had never given any disturbance despite being full well aware of the fact that the respondent/ defendant was in possession of the suit land illegally. The Courts below also found that the possession over the suit land by the defendant being more than a period of 12 years, such fact of possession has ripened into title. In fact, upon appreciation of materials on record the learned Courts below held that the respondent/ defendant has claimed adverse possession since the days of the original owner i.e. Ambika Charan Talukdar and, as such, the claim of adverse possession which began to run against Ambika Charan Talukdar will continue to run against the appellant/ plaintiff Smti. Surobala Thakuria. The learned Courts below found that the defendant was successful in proving his adverse possession against the plaintiff and further, the plaintiff being out of possession for more than 12 years, have lost his right, title and interest over the suit land in terms of Section 27 of the Limitation Act. It was further held that the suit of the appellant/ plaintiff is barred under Article 65 of the Limitation Act. In view of above, the appeal was dismissed on contest and the judgment and decree passed by the learned trial court was affirmed. 5. This Court on 10.08.2004 while admitting this Second Appeal had formulated the following substantial questions of law: “i) Whether the learned lower appellate Court misinterpreted Article 65 of the Limitation Act? ii) Whether the Suit is barred by adverse possession; and iii) Whether the vendor of the plaintiff had saleable right of the suit land.” 6. Mr. A.C. Sarma, learned Senior Counsel assisted by Mr. B. Haldar, representing the appellant, referred to the judgment passed in the Title Appeal No. 65 of 2000 as well as to the deposition of D.W.1 Sri Keshab Chandra Thakuria to project that the respondent/ defendant had failed to prove his adverse possession against the appellant/ plaintiff, inasmuch as, the statutory period of 12 years to claim adverse possession have not lapsed.
The learned Senior Counsel argues that the appellant/ plaintiff had purchased the suit land only in the year 1985 and the suit was filed in the year 1997, which was well within 12 years from the date of becoming the owner of the suit land. His further contention is that no adverse possession can run against the person until he becomes entitled to the property. Reliance has been placed upon the decision rendered in the case of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Others. reported in (2009) 16 SCC 517 . Particular reference is made to paragraphs:17, 20, 32 & 33 to project 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 amounts to denial of the owner's title to the property. 7. In reply Mr. B.D. Deka, learned counsel for the respondents, submits that in so far as the statutory period of limitation for claiming adverse possession given in Article 65 of the Limitation Act is concerned, the same has to be read with the provision of Section 2(i) of the Limitation Act. The word 'plaintiff' occurring in the third column against Article 65 under the heading “Time from which period begins to run” has been defined in Section 2(i) to mean any person from or through whom a plaintiff derives his right to sue. In the case in hand the respondent/ defendant admittedly had been in possession over the suit land since the year 1970 when Ambika Charan Talukdar was the owner, which title was passed on to the appellant/ plaintiff in the year 1985 by way of sale/ purchase. To reinforce the meaning of 'plaintiff' Mr. Deka places reliance on the decision in Gobinda Nath Shaha Chowdhry vs. Surja Kanta Lahiri and Others of the Hon'ble Calcutta High Court rendered way back on 04.01.1899. Reliance has also been placed upon Section 27 of the Limitation Act to show that the appellant/ plaintiff's right over the property have stood extinguished at the determination of the period limited by Article 65 read with Section 2 (i) of the Limitation Act. Further, Mr.
Reliance has also been placed upon Section 27 of the Limitation Act to show that the appellant/ plaintiff's right over the property have stood extinguished at the determination of the period limited by Article 65 read with Section 2 (i) of the Limitation Act. Further, Mr. Deka also placed reliance in the case of Dudh Nath Pandey (Dead by L.R.'s) vs. Suresh Chandra Bhattasali, reported in AIR 1986 Supreme Court 1509 to say that this Court under Section 100 of the Code of Civil Procedure cannot make a fresh appraisal of the evidence and come to different findings contrary to the findings recorded by the Courts below. Mr. Deka submits that findings on the question of limitation after due consideration by the Courts below is a finding of fact which cannot be set aside by the High Court in exercise of powers under Section 100 of the Code of Civil Procedure. 8. Generally, adverse possession is indeed a question of fact and findings on such fact by the Courts below cannot be interfered in Second Appeal. The High Court in exercise of power under Section 100 of the Code of Civil Procedure is also not permitted to make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the First Appellate Court, more so when both the Courts below have rendered concurrent findings on all issues. No perversity of the concurrent findings has also been shown by the appellant warranting interference of this Court. It is too well settled that the existence of 'substantial question of law' is a sine qua non for exercise of jurisdiction under Section 100 of the Code of Civil Procedure. In the back drop of the limited jurisdiction of this Court for exercise of power under Section 100 of the Code of Civil Procedure, the inevitable conclusion is that in so far as the first two substantial questions are concerned, requiring an answer from this Court, the same do not fall within the domain of “substantial question of law'. The decisions relied upon by the learned Senior Counsel for the appellant do not come to the aid of the appellant for the purpose of determining this appeal under Section 100 of the Code of Civil Procedure. 9. Mr.
The decisions relied upon by the learned Senior Counsel for the appellant do not come to the aid of the appellant for the purpose of determining this appeal under Section 100 of the Code of Civil Procedure. 9. Mr. A.C. Sarma, learned Senior Counsel have fairly stated that in so far as the third question is concerned, with regard to as to whether the vendor of the plaintiff had saleable right of the suit land, no such issue was framed in either of the Courts below. Be that as it may, the said question also does not involve any substantial question of law. Hence, this Court is circumscribed by law to look into this question as well. 10. In view of the discussion above, this Court holds that there is no substantial question of law involved in this appeal. Accordingly, this appeal is dismissed, however, without any order as to costs.