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2015 DIGILAW 803 (GAU)

Jaya Handique v. Bimala Dutta

2015-06-24

A.K.GOSWAMI

body2015
ORDER : Heard Mr. B.D. Goswami, learned counsel for the appellants. Also heard Mr. A.C. Sarma, learned counsel for the respondent. 2. This appeal is directed against the judgment and decree dated 13.11.2003 passed by the learned Civil Judge (Sr. Divn.) No.2, Guwahati in Title Appeal No.39/2002 dismissing the appeal filed by the appellants, affirming and upholding the judgment and decree dated 30.04.2002 passed by the learned Civil Judge (Jr. Divn.) No.1, Guwahati, in Title Suit No.260/1994. The appellants are successors-in-interest of the plaintiff. 3. The second appeal was admitted to be heard by an order dated 06.04.2004 on the following substantial questions of law: “1. Whether power of attorney holder can depose in the case on behalf of the Principal in the absence of any infirmity of the Principal in view of Section 2 of the Power of Attorney Act and Order XXXII Rule15 CPC? 2. Whether a Court can allow an agent of the plaintiff to plead the case of the plaintiff on the basis of an unregistered power of attorney? 3. Whether the first appellate Court being the final court of facts can pass the judgment without discussing the evidence, both oral and documentary and in violation of Order XLI, Rule 31 of the Code of Civil Procedure?” 4. The plaintiff filed the suit praying for declaration of right, title and interest in the suit land by right of adverse possession. It is pleaded that he is the absolute owner in possession of the suit land described in the schedule to the plaint and had been continuously residing there by constructing dwelling house for more than 18 years. He, later on, learnt that one Bani Kanta Kakati was the owner of the suit land and subsequently, on enquiries made, one Bhabesh Kakati claimed to be the owner, which however, turned out to be false and it was unearthed by him that the suit land belonged to one Nila Kanta Kakati. The plaintiff had obtained a Holding from the Gauhati Municipal Corporation, which was cancelled at the instance of the defendant No.2, prompting him to file a suit in the Court of Munsiff No.2, Guwahati being Title Suit No.59/1992. The suit was dismissed and an appeal was preferred being Title Appeal No.12/1994. 5. The plaintiff had obtained a Holding from the Gauhati Municipal Corporation, which was cancelled at the instance of the defendant No.2, prompting him to file a suit in the Court of Munsiff No.2, Guwahati being Title Suit No.59/1992. The suit was dismissed and an appeal was preferred being Title Appeal No.12/1994. 5. The defendant No.2 filed a written statement stating that the plaintiff had earlier filed Title Suit No.59/1992 against her and two others and that the appeal was allowed and remanded for fresh consideration by the learned trial court and on remand, the suit was again dismissed. Allegations of the plaintiff were denied and it is stated that the suit land contained in Dag No.2336 is actually covered by K.P. Patta No.2198, which also covers some other dags and the same belong to the defendant. The plot of land is bounded by pucca boundary walls. The plaintiff, who was serving as a Chowkidar-cum-Driver, was allowed to reside in a thatched house in the year 1989-90 as a permissive occupant for three months. But he had secretly obtained the Municipal Holding. 6. It is submitted by Mr. Goswami that though Nila Kanta Kakati was initially arrayed as Defendant No.1, his name was struck off. Mr. Goswami also submits that substantial question of law No.1 does not arise in the facts of the case. 7. A number of issues were framed by the learned trial court, which are as follows: “1. Whether the suit is maintainable in its present form ? 2. Whether there is cause of action for the suit ? 3. Whether the plaintiff has right, title and interest over the suit land and house ? 4. Whether the plaintiff has obtained the Holding No.391 of Ward No.28 of the GMC in respect of thatched house ? 5. Whether the plaintiff is entitled to get decree as prayed for ? 6. To what other relief or reliefs, if any, parties are entitled to ?” 8. 3 (three) witnesses were examined on behalf of the plaintiff and 3(three) witnesses were also examined by the defendant. However, defendant No.2 did not examine herself and her husband had deposed as DW-1. It is in this context, the substantial question of law No. 2 has been framed. 9. 3 (three) witnesses were examined on behalf of the plaintiff and 3(three) witnesses were also examined by the defendant. However, defendant No.2 did not examine herself and her husband had deposed as DW-1. It is in this context, the substantial question of law No. 2 has been framed. 9. The learned trial court, on consideration of the evidence on record, held that there was no evidence at all that the plaintiff was in possession of the suit land since 1975. It was also held that there is no evidence from which date possession had become adverse to the defendant No.2. 10. It is an established proposition of law that the burden is on the party who claims adverse possession to plead and establish adverse possession. 11. When the plaintiff had failed to prove adverse possession by adducing cogent evidence, substantial question of law No.2 as framed by this court, does not really arise for consideration as even if the entire evidence of the defendant is discarded, the position is not altered. The Appellate Court concurred with the finding of the learned Trial Court. Though there is no elaborate discussion, the learned Appellate Court had summarized the evidence in proper perspective and therefore, it cannot be said that the judgment of the learned lower Appellate Court is not in conformity with Order XLI Rule 31 CPC. 12. There is another aspect of the matter. The learned Trial Court had also held the suit to be not maintainable, albeit, in a different context. 13. In Gurdwara Sahib Vs. Gaon Panchayat Village Sirthala and Anr., reported in (2014) 1 SCC 669 , a question had arisen before the Apex Court as to whether declaration of ownership of land on the basis of adverse possession can be sought by the plaintiff and the question was answered in the negative by the Apex Court. 14. In the said case, the plaintiff/appellant claimed ownership by adverse possession on the ground that he was in possession of the land in dispute for sufficiently long period. The Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession had matured into ownership and that only if proceedings are filed against the appellant and the appellant is arrayed as defendant, then it can use this adverse possession as a shield/defence. 15. The Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession had matured into ownership and that only if proceedings are filed against the appellant and the appellant is arrayed as defendant, then it can use this adverse possession as a shield/defence. 15. Admittedly, the suit of the plaintiff in the instant case was for a declaration that the plaintiff had become owner of the suit land by right of adverse possession. The suit for declaration of title on the basis of adverse possession is not maintainable as adverse possession can be used as a shield and not as a sword. 16. In view of the above discussion, substantial question of law No.3 is decided against the appellant. Substantial question of law Nos.1 and 2 are not arising in the instant case. Accordingly, I find no merit in this appeal and the appeal is dismissed. No cost. 17. Registry will send back the records.