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2015 DIGILAW 757 (GAU)

Chunilal Chauhan v. Jogendra Mishra

2015-06-16

SUMAN SHYAM

body2015
ORDER : 1. Heard Mr. K. Das, learned counsel for the appellants. Also heard Mr. D. Mazumdar, learned senior counsel appearing for the respondents. 2. This Second Appeal has been filed by the defendants/appellants against the concurrent judgment and decree dated 29.03.2005 passed by the learned Civil Judge (Senior Division), Kokrajahr in Title Appeal No.2/2004 dismissing the appeal filed by the defendants thereby affirming the judgment and decree dated 28.06.2004 passed by the learned Civil Judge (Junior Division) No.1, Kokrajhar in Title Suit No.2/2001 decreeing the suit filed by the plaintiffs/respondents. 3. The case of the plaintiffs, in brief, is that Batuk Mishra, the predecessor of the plaintiffs, was the original owner of various immovable properties including the suit land described in the schedule to the plaint. Batuk Mishra died leaving behind two sons viz., Ramdhyan Mishra and Ram Naresh Mishra as his legal heirs. The plaintiffs are the sons of Ramdhyan Mishra who died on 26.12.1994 leaving behind the plaintiffs as his legal heirs. Ram Naresh Mishra died on 01.01.1999. After their death the suit land fell into the share of the plaintiffs. They had been possessing the suit land by paying land revenue regularly. It is the case of the plaintiffs that during the year 1993 the father of the defendant No.1 had approached the plaintiffs and their father with a request to allow him to live in the cow shed standing over the suit land along with his family members to which the father of the plaintiffs agreed on condition that the defendant would vacate the land as and when the same was required by the plaintiffs and also subject to the condition, inter alia, that he will not make any permanent construction over the suit land. In this manner, the defendant had entered into the suit land as a permissive occupier under the father of the plaintiffs/respondents. However, when the plaintiffs/respondents asked the defendant/appellant to leave the cowshed after the death of their father and uncle the defendant neglected to do so. Later on, when the plaintiffs had again requested the defendant to vacate the cowshed then he had damaged the standing cowshed forcibly on 21.03.2001, 22.03.2001 and 23.03.2001 thereby denying the title of the plaintiffs over the suit land. Later on, when the plaintiffs had again requested the defendant to vacate the cowshed then he had damaged the standing cowshed forcibly on 21.03.2001, 22.03.2001 and 23.03.2001 thereby denying the title of the plaintiffs over the suit land. Thus, the plaintiffs were compelled to institute the aforementioned Title Suit praying for declaration of their right, title and interest over the suit land and also for recovery of possession by evicting the defendants. 4. The defendants had contested the suit by filing written statement whereby they have denied the statements and averments made in the plaint in so far as the same pertains to the stand of the plaintiffs that the defendants had entered the suit land as a permissive occupier. The case of the defendants was that they have been possessing the suit land not less than 30/40 years. Batuk Mishra sold the land to the defendant /appellant No.1 but since he had died suddenly in the year 1968-69 without executing the sale deed hence, the defendants continued to occupy the land without any sale deed. The defendants had initially constructed a thatched house over the suit land but thereafter, the said thatched house was rebuilt by tali roofed house which was built and rebuilt and renovated by the defendant No.1 during the lifetime of his father. The father of the defendant No.1 died in the year 1971 leaving behind the defendant No.1 as his wife and the other defendants as his legal heirs. It is also the case of the defendants that they have been living in the suit land peacefully, uninterruptedly and openly as true owner which was known to Batuk Mishra, Ram Naresh Mishra and Ramdhyan Mishra as their legal heirs. On the basis of such pleadings the defendants had tried to set out a plea of having acquired title by means of adverse possession. 5. On the basis of the pleadings contained in the plaint as well as the written statement, the learned trial Court had framed as many as 7 issues which are as follows :- “1. Whether there is any cause of action for the present suit? 2. Whether the suit is not maintainable in law and facts? 3. Whether the suit is bad for non-joinder and mis-joinder of parties? 4. Whether the suit is barred by limitation, estoppels, waiver and acquiescence? 5. Whether there is any cause of action for the present suit? 2. Whether the suit is not maintainable in law and facts? 3. Whether the suit is bad for non-joinder and mis-joinder of parties? 4. Whether the suit is barred by limitation, estoppels, waiver and acquiescence? 5. Whether the plaintiffs have got right, title and interest over the suit property? 6. Whether the plaintiffs are entitled to get decree in the suit as prayed for? 7. To what relief/reliefs the parties are entitled?” 6. The plaintiffs’ side examined five witnesses whereas the defendants examined four witnesses in support of their case. After hearing the learned counsels for the parties and on appreciation of the evidence on record the learned trial Court passed judgment and order dated 28.06.2004 decreeing the suit of the plaintiffs by declaring their right, title and interest over the suit land and also for recovery of khas possession by evicting the defendants from the suit land. 7. Being aggrieved by the judgment and decree dated 28.06.2004 passed by the learned trial Court in Title Suit No.2/2001 the defendants as appellants had preferred Title Appeal No.2/2004 in the Court of Civil Judge (Senior Division), Kokrajhar. By the judgment and order dated 29.03.2005 the learned First Appellate Court had dismissed the Title Appeal filed by the present appellants thereby affirming the judgment and decree passed by the trial Court in the Title Suit No.2/2001. 8. Being aggrieved by the concurrent judgment and decree dated 29.03.2005 passed by the learned First Appellate Court the defendants as appellants have approached this Court by filing the instant Second Appeal which was admitted to formal hearing to be heard on the following substantial question of law :- “Whether in deciding the issue No.4 & 5, the learned trial Court committed an error in law in dealing with the defence of the petitioner to the fact that inspite of non-registration of the sale deed covering the suit land in his favour, right accrued in his favour.” 9. Mr. Das, learned counsel for the appellants, submits that the defendants have clearly pleaded in the written statement the circumstances under which the oral agreement for sale was executed by the grandfather of the plaintiffs in favour of the father of the defendants. Mr. Das, learned counsel for the appellants, submits that the defendants have clearly pleaded in the written statement the circumstances under which the oral agreement for sale was executed by the grandfather of the plaintiffs in favour of the father of the defendants. It was also mentioned that the sale deed could not be executed since the grandfather of the plaintiffs suddenly died due to high blood pressure. In view of the above, the interest of the defendants in respect of the suit land would remain protected in view of Section 48 of the Registration Act, 1908. He further submits that the defendants, though admitted the title of the plaintiffs over the suit land, had set out a plea of acquiring title over the land by means of adverse possession. As such, it was incumbent upon the Court below to frame an issue on the said point and decide the question of adverse possession on the basis of the materials available on record. The same not having done, the learned Court below have misdirected the proceeding thereby causing serious prejudice to the interest of the appellants/defendants. He, therefore, submits that the present is a fit case where this Court should frame an issue as regards acquisition of right, title and interest of the defendants by way of adverse possession and thereafter, remand the suit for fresh trial by the Court of first instance. 10. Per contra, Mr. D. Mazumdar, learned senior counsel appearing for the respondents/plaintiffs, submits that from a perusal of the pleadings contained in the written statement it would be self evident that there is no dispute to the title of the plaintiffs as regards the suit land. Notwithstanding the same, the plaintiffs have led sufficient evidence on record so as to prove and establish their title over the suit land. On the contrary, since the defendants having taken the plea of adverse possession, it was incumbent upon them to plead and establish their case by leading evidence on record to show as to from which date their possession over the suit land had become hostile to that of the true owner and in what manner. He submits that the learned Courts below have recorded concurrent finding of facts to the effect that the defendants have failed to plead and establish the plea of adverse possession taken by them. 11. He submits that the learned Courts below have recorded concurrent finding of facts to the effect that the defendants have failed to plead and establish the plea of adverse possession taken by them. 11. Referring to judgment and decision of the Hon’ble Supreme Court in the case of P.T. Munichikkanna Reddy and others vs. Revamma and others reported in (2007) 6 SCC 59 , Mr. Mazumdar submits that the defendants, in order to succeed with plea of adverse possession, must establish their possession in an open, continuous and hostile manner which has not been done in the instant case. By relying upon the judgment and decision of the Hon’ble Apex Court reported in (1996) 1 SCC 639 [Mohan Lal and others vs. Mirza Abdul Gaffar and another] Mr. Mazumdar submits that even in a case where the claim is founded on a right akin to that of protection under Section 53A of the Transfer of Property Act, the plea of adverse possession could not be available to the defendants. He, therefore, submits that merely mentioning that there was an oral agreement on the basis of which the defendants have remained in continuous possession of the land could not be sufficient unless they were able to show the date from which their possession over such land have become hostile to that of the true owner. In support of his aforesaid argument Mr. Mazumdar has also relied upon the judgment and decision of the Hon’ble Apex Court reported in AIR 1964 SC 1254 [S.M. Karim vs. Mst. Bibi Sakina] and (2011) 10 SCC 404 [State of Haryana vs. Mukesh Kumar and others] to contend that even the Hon’ble Apex Court has recommended abolition of the law of adverse possession in view of the present situation prevalent in the society. Mr. Mazumdar submits that no equity can be said to have arisen in favour of a claimant of adverse possession. 12. I have considered the rival submissions made by and on behalf of the parties and have also examined the materials on record. From the perusal of the pleadings of the parties as well as the findings recorded by the Courts below it is evident that the plaintiffs have been able to plead and establish their title over the suit land by leading cogent evidence on record. From the perusal of the pleadings of the parties as well as the findings recorded by the Courts below it is evident that the plaintiffs have been able to plead and establish their title over the suit land by leading cogent evidence on record. Even otherwise the defendants side have not disputed the title of the plaintiffs over the suit land. Such being the position the plaintiffs will be entitled to a decree for declaration of title and recovery of possession unless the defendants succeed in showing acquisition of their title over the suit land by way of adverse possession. 13. From a perusal of the pleading in the written statement it appears that the defendants although have taken the plea of adverse possession yet they have failed to make specific pleadings as to the date from which their title and possession in respect of the land had become hostile to the title of the true owner. The defendants have also failed to plead as to in what manner their possession have become hostile to that of the true owner. The Courts below have concurrently recorded a finding of fact that the defendants have failed to lead any evidence so as to establish the fact that their possession in respect of the suit land was in open and hostile denial to that of the title of the plaintiffs who are admittedly the true owners. It is settled law that in the case of a claim of adverse possession the claimant must succeed in showing that the possession and animus possidendi co-exist. Mere length of possession would not ripen into title by way of adverse possession unless it is shown that such possession was in hostile denial of the title of the true owner. In the instant case the finding of fact recorded concurrently by both the courts below goes to show that the defendants have failed to prove their plea of adverse possession. Moreover, in the absence of specific pleading on the plea of adverse possession giving the particulars as mentioned above, the question of framing any issue on the plea of adverse possession cannot arise. Nevertheless, the Courts below have recorded a finding on the said plea taken by the defendants. Moreover, in the absence of specific pleading on the plea of adverse possession giving the particulars as mentioned above, the question of framing any issue on the plea of adverse possession cannot arise. Nevertheless, the Courts below have recorded a finding on the said plea taken by the defendants. From the perusal of the materials on record I do not find any justification to disturb the concurrent finding of facts recorded by the Courts below on the plea of adverse possession. 14. Coming to the question of protection sought by Mr. Das under Section 48 of the Registration of Act, 1908, I am of the opinion that the provisions of Section 48 of the Act of 1908 would not have any application in the facts and circumstances of this case. It is not in denial that there was no registered document relating to the property existing in favour of the defendants. Further, even the plea of oral agreement pertaining to the suit land could not be established by the defendants by leading sufficient evidence on record. Since the defendants/appellants have not urged any substantial question of law in respect of the said point I am of the opinion that the protection of Section 48 of the Registration Act, 1908 would not be available to the defendants/appellants in the facts and circumstances of the case. 15. In view of the discussions made above, I am of the considered opinion that the judgment and decree passed by the learned Lower Appellate Court does not suffer from any infirmity warranting interference by this Court. As such, the question of law framed by this Court stands answered against the appellants and in favour of the respondents/ plaintiffs. 16. In the result, this Second Appeal is held to be devoid of any merit and the same shall stands dismissed. However, having regard to the facts and circumstances of the case, there would be no order as to cost. Registry to send back the LCR.