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2016 DIGILAW 1046 (CAL)

Gita Rani Debnath v. Mihir Kumar Sen

2016-12-20

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against a judgment and decree dated February 8, 2013 passed by the learned Additional District Judge, 2nd Court at Nadia in Title Appeal No. 185 of 2007 reversing a judgment and decree dated June 30, 2007 passed by the learned Civil Judge (Junior Division) at Nabadwip, Nadia in Title Suit No. 203 of 1993 at the instance of the defendant. 2. Let us now consider as to whether any substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provisions of Order XLI, Rule 11 of the Code of Civil Procedure or not. 3. Here is the case where we find that an eviction suit was filed by the plaintiffs, being the respondents herein, against the defendant – viz. the appellant herein. It was contended by the plaintiffs that the defendant was permitted to occupy the suit premises for three years on the leave and licence basis. Since after expiry of the licence period the defendant failed and refused to vacate the suit premises, the instant suit was filed. 4. The defendant contested the said suit by filing her written statement claiming therein that she acquired title in the suit property by adverse possession. Her induction in the suit premises on leave and licence basis was denied by her. She thus prayed for dismissal of the said suit. 5. The parties led evidence in support of their respective claims. The learned trial Judge ultimately dismissed the said suit by holding, inter-alia, that the plaintiffs had not been able to prove their absolute title in the suit property. The learned trial court also held that though the defendant admitted in Ext.5 that she was a licensee under one Binoy Krishna Mishra, but according to the learned trial Judge, such statement of the defendant in Ext.5 cannot be regarded as her admission as to her induction in the suit premises as licensee. Such conclusion was drawn by the learned trial court after scanning the evidence of the DW1 who stated that such statement was made in the said Exhibit by her learned advocate without taking proper instructions from her and she, being an illiterate lady, signed the said application without understanding the true purports of the contents of the said application being Ext.5. The learned trial Judge, however, held that the title of the property could not be transferred by way of admission or waiver and as such the learned trial Judge refused to recognise the defendant’s claim that she acquired title in the suit property by adverse possession. 6. Challenging the said judgment and decree of the learned trial court the plaintiffs preferred an appeal before the First Appellate Court. The First Appellate Court reversed the findings of the learned trial court by relying upon the admission made by the defendant in her application under section 144 CrPC which was admitted into evidence as Ext.5. In the section 144 CrPC application the defendant admitted that initially she was permitted to occupy the suit premises on leave and licence basis, but subsequently her possession became adverse to the title of the plaintiffs and thus she acquired title in the suit property by adverse possession. The learned First Appellate Court was pleased to allow the said appeal after setting aside the judgment and decree of the learned trial court holding that once the initial entry of the defendant is with permission of the owner of the property, the defendant cannot claim title by adverse possession. Hence the instant second appeal has arisen against the judgment and decree passed by the learned First Appellate Court. 7. We have heard Mr. Bose, learned advocate appearing for the appellant, and have considered the materials on record. It is well settled that if the initial entry in the suit property is with permission of the landowner, the licensee, in view of the provision contained in section 116 of the Evidence Act, 1872, cannot dispute the title of the owner of the property – viz. the licensor. 8. The appellant tried to explain her admission made in the section 144 CrPC application by contending that her lawyer was not instructed to draft the said application in the fashion it was drafted. She stated in her evidence that she was an illiterate lady. Therefore, she at the time of verifying the pleading in the said application was in the dark as to the true contents of the said application. She thus tried to explain away the impact of her admission made in her application under section 144 CrPC. 9. She stated in her evidence that she was an illiterate lady. Therefore, she at the time of verifying the pleading in the said application was in the dark as to the true contents of the said application. She thus tried to explain away the impact of her admission made in her application under section 144 CrPC. 9. In our view, this part of the evidence cannot be relied on, simply because of the fact that the lawyer who drafted the said application under section 144 CrPC was the best person who could have explained as to whether the application was drafted as per the instructions of the defendant or not. The lawyer who drafted the said application has not been examined in her case. Thus we hold that the best witness has been withheld by the defendant. 10. That apart, the appellant herself adduced evidence as DW1. She was unable to mention the Dag number and other particulars of the suit property in respect of which she was claiming title by adverse possession. If the defendant herself is unable to identify the land which she alleged to have acquired title by adverse possession, we are of the view that the learned First Appellate Court was not unjustified in holding that the defendant has failed to prove her title in the suit property by adverse possession. 11. We thus do not find any apparent illegality in the order impugned. Hence we decline to admit this appeal for hearing under the provisions of Order XLI, Rule 11 CPC as we do not find involvement of any substantial question of law in this second appeal. The appeal stands dismissed accordingly. 12. Since the appeal is dismissed, no further order need be passed in connection with the stay application which is deemed to be disposed of.