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2018 DIGILAW 169 (CAL)

Dilip Kumar Mondal v. Sakti Dhar Mondal

2018-01-25

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2018
JUDGMENT : 1. The appeal is directed against a decree for eviction. 2. The parties are brothers and there is a history to the matter which may not be relevant from the legal point of view but must be recounted to make the story complete. One Sailendra Nath Mondal was a tenant in respect of a Burabazer property under a Devi Prosad Poddar prior to 1955. In 1955 Poddar instituted a suit for eviction against the said Mondal and the suit was decreed on January 21, 1959. In July, 1960 the first appeal was dismissed and the second appeal lingered in this court till or about the year 1991. In between, the original tenant died in the 1980s and the original landlord died in or about 1990. 3. One of the heirs of the original tenant, Ashok Poddar, divided the property originally at 196, Maharshi Debendra Road and sold it to several transferees, including a portion to the respondent herein. It is not in dispute that the appellant was in possession of a room in a part of the property sold by Ashok Poddar to the respondent pursuant to a deed of conveyance of October, 1996. 4. It is also not in dispute that the original tenancy and the full extent thereof stood destroyed upon Ashok Poddar dividing the property into different parts and transferring such parts to several transferees. However, it also appears that the appellant herein continued to be in possession of one room that he apparently occupied even when his father was the tenant. 5. The respondent cited the decree of 1959 to institute execution proceedings against the appellant herein some time in the year 2000 or thereabouts. On a petition under Section 47 of the Code filed by the appellant herein, the execution proceedings were dismissed on the ground of limitation. 6. Pursuant to a notice dated April 29, 2013 issued by the respondent herein to the appellant, the present suit for recovery of possession was instituted in the City Civil Court at Calcutta in 2013. The respondent-plaintiff narrated the history of the appellant’s occupation of the suit premises in the plaint and claimed that the appellant had no right, title or interest in respect of the relevant room and was merely a trespasser thereat. The respondent-plaintiff narrated the history of the appellant’s occupation of the suit premises in the plaint and claimed that the appellant had no right, title or interest in respect of the relevant room and was merely a trespasser thereat. In the written statement, the appellant asserted that the appellant was a tenant, having been in possession of the relevant room long prior to the respondent acquiring title to that part of the property. No case of adverse possession was pleaded in the written statement and none made out in course of the trial. 7. The principal contention of the appellant is that by virtue of Section 27 of the Limitation Act, 1963 and Article 65 of the Schedule thereto, the respondent could not have instituted the suit or obtained any decree against the appellant. In support of such proposition, the appellant has referred to a Division Bench judgment of this court reported at 2015 (4) CHN (Cal) 75 (Prabhat Kumar Didwania v. Juthika Nath) and another judgment reported at AIR 2006 SC 3608 (Prem Singh v. Birbal). 8. The appellant agrees that the appellant could not have relied on the appellant’s status as tenant once the decree was passed and it was not interfered with in course of the first and second appeals; but the appellant maintains that the respondent had no right to institute the suit in the year 2013 when the respondent’s rights in respect thereof stood extinguished within the meaning of Section 27 of the said Act. According to the appellant, since the respondent claimed that the cause of action arose in favour of the respondent on October 5, 1996 when the deed of conveyance pertaining to the acquisition of the property was registered and the suit was filed more than 12 years thereafter in the year 2013, the respondent’s right in respect of the property stood extinguished in addition to the respondent not being entitled to wrest possession thereof from the appellant. 9. Indeed, the appellant carried a counterclaim in the written statement for a declaration that the appellant was a monthly tenant under the plaintiff “on and from 5th October, 1996 in respect of the suit premises” and a consequential injunction. 10. 9. Indeed, the appellant carried a counterclaim in the written statement for a declaration that the appellant was a monthly tenant under the plaintiff “on and from 5th October, 1996 in respect of the suit premises” and a consequential injunction. 10. Upon the original tenancy where Devi Prosad Poddar was the landlord and Sailendra Nath Mondal was the tenant being destroyed by the division of the property some time in 1991, the original tenancy lost all meaning. It is true that the appellant retained possession of a part of what was the original tenancy, but there is no case of any new tenancy being created for a lesser extent in favour of the appellant upon the original tenancy being destroyed. What seems to have happened is that one of the brothers acquired a part of the property initially and another part later and allowed the other brother to continue in possession; but the other brother thought that he had some manner of right in respect of the property under his possession. 11. If the defence of tenancy is to be given any credence, there could be two possibilities: that the appellant herein was claiming under the original tenancy or the appellant was claiming under a new tenancy. Even disregarding the case made out in the counterclaim that a new tenancy was created in favour of the appellant on October 5, 1996, there could be no claim as a tenant under the old tenancy since the extent of the tenancy stood, admittedly, destroyed in 1991. As to the tenancy claim with effect from October 5, 1996, there is no evidence in such regard and not even the slightest whisper in the written statement or counterclaim of any rent or the like having been paid to the landlord. Indeed, the ground now sought to be urged in the appeal is completely contrary to the defence evident from the written statement and counterclaim. The defence of tenancy is abandoned and a defence is sought to be asserted of adverse possession under Article 65 of the Schedule to the Act of 1963. 12. Indeed, the ground now sought to be urged in the appeal is completely contrary to the defence evident from the written statement and counterclaim. The defence of tenancy is abandoned and a defence is sought to be asserted of adverse possession under Article 65 of the Schedule to the Act of 1963. 12. It is elementary that a defence of adverse possession is established upon the person claiming it demonstrating that a claim hostile to the original owner was made at a point of time and such claim was maintained continuously for a period of 12 years without the owner taking any action in such regard. In other words, the adverse possession has to be open and continuous even as such person claims title hostile to that of the owner without the owner taking any steps within the prescribed period for it to ripen to a right at the end of such period. 13. A case of adverse possession is essentially a case on facts. In the absence of adverse possession being pleaded in the written statement or counterclaim, no such case could have been made out and no evidence was adduced by the appellant of adverse possession in course of the trial. 14. As to the judgments cited by the appellant, there is no dispute with the proposition recognised in Prem Singh that Section 27 of the Limitation Act is an exception to the general principle of limitation. Limitation is a matter of prescription. Limitation is not the natural law and the concept of limitation has emerged only in the Justinian times. A statute of limitation is a statute of repose and all that it generally bars is the right of a claimant to obtain a particular remedy after the prescribed period is over. Section 27 in such regard is an exception since it expressly extinguishes the right of the owner of a property to claim ownership once he loses the right to obtain possession thereof by virtue of limitation. 15. As to the judgment in Prabhat Kumar Didwania, it was a case exclusively under Article 67 of the Schedule to the Act of 1963 where a tenancy had been determined but no steps had been taken for a period of 12 years thereafter. 15. As to the judgment in Prabhat Kumar Didwania, it was a case exclusively under Article 67 of the Schedule to the Act of 1963 where a tenancy had been determined but no steps had been taken for a period of 12 years thereafter. Surely, the argument proffered on behalf of the appellant herein under Article 65 of the same Schedule cannot draw any sustenance from the principles pertaining to Article 67. 16. Further, Section 27 of the Act is of no aid to appellant since Section 27 operates from a time after the “determination of the period prescribed thereby limited to any person for instituting a suit for possession.” In the present case, even if the appellant’s defence of adverse possession were to be taken at face value, since there is no assertion of when such adverse possession or hostile title was set up by the appellant for the first time, there is no question of any period running under the last column of the Schedule pertaining to Article 65. 17. The mere fact that the appellant was described in the plaint to be a trespasser does not imply that the appellant was in illegal possession of the property. An owner of a property may permit a person not having any right to such property to occupy the same. The occupation is permissive and is akin to that of a licencee. However, by merely giving permission to a person to occupy one’s premises, one’s right to the premises does not stand extinguished unless there is an overt act of adverse possession and such claim hostile to the owner’s title is continued for the period prescribed and more. 18. For the reasons above, there is no merit in the appeal and the judgment and decree dated November 2, 2016 do not call for any interference. FA 16 of 2018 is dismissed. 19. The appellant will pay costs assessed at Rs.20,000/-. 20. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.