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2015 DIGILAW 748 (GAU)

Bhim Bahadur v. Raj Gobindo Chakraborty

2015-06-12

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. A. Upadhyay, learned counsel for the appellants. None appears for the respondents though the names of the counsel are shown in the cause-list. This appeal is directed against a judgment and decree dated 28.9.2005 passed by the learned Additional District Judge (Ad hoc), Bongaigaon in Title Appeal No. 4/2004 setting aside the judgment and decree dated 21.5.2004 passed by the learned Civil Judge (Senior Division), Bongaigaon in Title Suit No. 34/2000. 2. The plaintiff filed a suit for declaration of right, title and interest and for khas possession by evicting the defendants from the suit land. Initially, when the suit was filed, there were eight defendants. Right, title and interest was sought for in respect of schedule-A land measuring 8 bigha and recovery of possession was sought for in schedule-B land measuring 3 bigha Subsequently, defendant Nos. 4 to 8 delivered vacant possession to the plaintiff and defendant Nos. 1 to 3 continued to remain in possession in respect of 1½ bigha of land. On the basis of a petition filed by the plaintiff, the prayer of the plaintiff for withdrawal of the suit against the defendant Nos. 4 to 8 was allowed. However, prayer for re-filing of the suit was rejected due to advance stage of the suit. 3. It was pleaded that schedule-A land was allotted to the plaintiff in the year 1976, he being a military personnel and an annual patta was issued to him. In the year 1994, annual patta was converted to periodic patta on payment of premium. He had kept one Suresh Mandal as caretaker of the suit property, who was living there along with his family members. On 1.4.1996, the defendants and their men encroached and occupied about 3 bigha of land and started cultivation despite objection raised by the caretaker. On request made by the plaintiff, the defendants had assured to deliver back possession. On 7.12.1999, when request was made once again, they became furious and threatened the plaintiff with dire consequences. 4. The defendant Nos. 1, 2 and 3 filed joint written statement. On request made by the plaintiff, the defendants had assured to deliver back possession. On 7.12.1999, when request was made once again, they became furious and threatened the plaintiff with dire consequences. 4. The defendant Nos. 1, 2 and 3 filed joint written statement. While denying the averments made in the plaint regarding allotment of schedule-A land, issuance of annual patta as also the periodic patta, it is stated that they were possessing 3 bigha of land, which is part of a big plot of khas land of more than 150 bighas, for 20 years by constructing dwelling houses and growing mango, coconut, bamboo trees, etc., and therefore, they had been in adverse possession of the land in question. 5. On the basis of the pleadings, the learned trial court framed the following issues:- "1. Is there any cause of action for the suit? 2. Whether the plaintiffs suit is barred by limitation by way of adverse possession by the defendants? 3. Whether the suit land was a part of allotted land by the Govt. to the plaintiff as military personnel? 4. Whether plaintiff has right, title and interest over the suit land? 5. Whether the defendants are liable to be evicted from the suit land? 6. Whether the plaintiff is entitled to a decree of the suit as prayed for? 7. What other reliefs parties are entitled to?" 6. While the plaintiff examined two witnesses, defendants adduced no evidence. The plaintiff examined himself as PW1 and the caretaker Suresh Mandal as PW2. The plain-tiff also exhibited documents including annual patta as Ext. 3 and periodic patta as Ext. 5. 7. The learned trial court, on consideration of the evidence on record, decreed the suit of the plaintiff. It was held that the plaintiff had been able to prove right, title and interest. Plea of adverse possession was also negated. Though the learned trial court had noted that annual patta No. 12 was converted to periodic patta in the year 1994, Ext. 5 was wrongly noted to be a revenue receipt. 8. It was held that the plaintiff had been able to prove right, title and interest. Plea of adverse possession was also negated. Though the learned trial court had noted that annual patta No. 12 was converted to periodic patta in the year 1994, Ext. 5 was wrongly noted to be a revenue receipt. 8. The lower appellate court affirmed the finding that the plaintiff has right, title and interest on the land measuring 8 bigha as described in schedule-A to the plaint However, on the basis of the statements made by PW 2 in his cross-examination, the learned lower appellate court recorded the finding that the defendants are in adverse possession of the schedule-B land and accordingly, allowed the appeal holding that the plaintiff is not entitled to any relief in the suit. 9. This appeal was admitted to be heard by an order dated 5.6.2006 on the following substantial question of law: "1. Whether the decree of reversal passed by the first appellate court is vitiated for incorrect interpretation of law under Article 65 of the Limitation Act." 10. Mr. Upadhyay, learned counsel for the appellant has submitted that the defendants not having examined any witness in support of their plea relating to adverse possession, the learned lower appellate court committed error of law in dismissing the suit of the plaintiff by holding that the facts elicited during cross-examination of PW 2, clearly demonstrated that suit of the plaintiff was barred by adverse possession. He submits that admittedly, till 1994, the plaintiff was having an annual patta and this Court, in Alimudin Sheikh Vs. Bahar Ali @ Baharuddiri & Ors., reported in (1989) 2 GLR 119, had laid down that there cannot be any adverse possession against the settlement holder in respect of annual patta. The suit was filed in the year 2000 and therefore, under no circumstances, it could have been held by the learned lower appellate court that defendants had acquired right by way of adverse possession, he submits. It is submitted by him that even if the evidence of PW 2 is considered in its entirety, at the most, it may be considered that the defendants were in possession for 20 years, which is not sufficient to construe adverse possession in favour of the defendants. It is submitted by him that even if the evidence of PW 2 is considered in its entirety, at the most, it may be considered that the defendants were in possession for 20 years, which is not sufficient to construe adverse possession in favour of the defendants. It is submitted by him that in a suit for declaration of title to the property, the plaintiff has only to prove his title and not his possession and the defendants, raising the plea of adverse possession, must prove the same along with his animus decidendi. In support of his submissions, the learned counsel has relied on Md. Mohammad Ali (Dead) by LRs Vs. Jagadish Kalita & Ors., reported in (2004) 1 SCC 271 and Karnataka Board of Wakf Vs. Government of India & Ors., reported in (2004) 10 SCC 779 . 11. I have considered the submission of the learned counsel for the appellants and perused the materials on record. 12. A Division Bench of this Court in the case of Charitra Kumar Malakar Vs. L.P. Bora (F.A. No. 4 of 1964), had observed that it was settled law that there could not be any adverse possession against the settlement holder in respect of an annual lease. The aforesaid observation of the Division Bench of this Court was extracted in the case of Alimudin Sheikh (supra). 13. It is, therefore, clear that no plea of adverse possession could have been entertained in respect of the suit property at least till the year 1994. The annual patta was converted to periodic patta in the year 1994 and the suit was filed in the year 2000. Even if it is assumed that the possession of the defendants had elements of adverse possession, it would be only from the year 1994 onwards. 14. In a civil suit, plaintiff must prove his case and cannot take advantage of the weakness of the case of the defendants, if any. On the basis of the evidence adduced by the plain-tiff, if it is considered by the defendant that the plaintiff has not proved his case at all, defendant may take a chance not to adduce any evidence. But in a case, where the onus is on the defendant to prove a specific plea like the plea of adverse possession, the defendant must lead evidence and establish his plea. But in a case, where the onus is on the defendant to prove a specific plea like the plea of adverse possession, the defendant must lead evidence and establish his plea. In order to establish adverse possession, he has to show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) whether his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 15. Long and continuous possession, by itself, would not constitute adverse possession. In a suit governed by Article 65 of the Limitation Act, 1963, the plaintiff will succeed if he proves his title and it will no longer be necessary for him to prove, unlike in a suit governed by Article 142 and 144 of the Limitation Act, 1908 that he was in possession within 12 years preceding the filing of the suit On the contrary, it would be for the defendant, if he wants to defeat the plaintiff's claim, to establish his title by adverse possession. To prove adverse possession, necessarily, defendant must also prove animus possidendi. [See Md. Mohammad Ali (supra)] 16. It was observed in Karnataka Board of Wakf (supra) that it is a well-settled principle of law that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that his possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continue over statutory period. 17. PW2, on the basis of whose evidence the appeal was allowed, could not have proved animus possidendi or adverse possession on the part of the defendants. The defendants failed to discharge the onus cast upon them to prove adverse possession by not examining any witness in support of their case. 18. 17. PW2, on the basis of whose evidence the appeal was allowed, could not have proved animus possidendi or adverse possession on the part of the defendants. The defendants failed to discharge the onus cast upon them to prove adverse possession by not examining any witness in support of their case. 18. In view of the above discussions, I am of the considered opinion that impugned judgment of the learned lower appellate court cannot be sustained and, accordingly, the same is set aside and quashed. Substantial question of law is answered in favour of the appellant. Decree of the learned trial court is restored. No cost. Registry will send back the records.