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2018 DIGILAW 856 (GAU)

TAJAMUL ALI v. JAIFAR ALI

2018-05-24

PRASANTA KUMAR DEKA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. P.K. Deka, learned counsel appearing on behalf of the appellants. Also heard Mr. M. H. Rajbarbhuiya and Ms. S. Rasul, learned counsel appearing on behalf of the plaintiffs/respondents. 2. The present appellants are the defendants in Title Suit No.54/2004 in the Court of then learned Civil Judge (Junior Division) No.1 at Hailakandi which was preferred by the plaintiff/respondent for recovery of the suit land on the basis of title thereon and for permanent injunction. It is the case of the plaintiff/respondent that he purchased the suit land measuring 3 kathas 10 gondas from one Mokbul Ali by a registered sale deed No.3106 dated 13.04.1978 (Exhibit-1). On 17.03.1992, the defendants/appellants trespassed into his land and caused mischief by damaging the standing vegetables on the southern boundary of the suit land and thereafter on the basis of the FIR, GR Case No.325/1992 was registered under Sections 143/447/427 of the IPC and the learned Chief Judicial Magistrate, Hailakandi vide his judgment dated 05.07.1996, convicted the defendants/appellants. As against the said judgment of conviction they preferred an appeal and vide judgment and order dated 25.09.1996 the appeal was allowed thereby acquitting the defendants/appellants. Thereafter on 30.09.1996, the plaintiff/respondent was dispossessed. Hence, the plaintiff has brought the suit for recovery of possession on the basis of his title. 3. The defendants/respondents contested the suit by filing written statement and denied the pleadings of the plaintiffs/respondents. The fact that the plaintiffs/respondents purchased the suit land from Mokbul Ali on 13.04.1978 was denied. 4. It is the case of the defendants/appellants that land of second RS Dag Nos.146/147 of Patta No.84 along with other land of other dags originally belonged to one Arman Ali who died leaving behind five sons namely Moskandar Ali, Posand Ali, Nichar Ali, Ayub Ali and Mokbul Ali and another daughter Kusban as his legal heirs. The said sons enjoyed the paternal properties by way of amicable arrangement. The defendant/appellant No.1 purchased the entire share of Mokbul Ali including the suit land in the suit dag and other dags of patta No.84 in the year 1981 and thereafter he constructed his homestead by covering the homestead of Mokbul Ali and his brother Nichar Ali. The said sons enjoyed the paternal properties by way of amicable arrangement. The defendant/appellant No.1 purchased the entire share of Mokbul Ali including the suit land in the suit dag and other dags of patta No.84 in the year 1981 and thereafter he constructed his homestead by covering the homestead of Mokbul Ali and his brother Nichar Ali. The defendant/appellant No.1 has been in exclusive and continuous possession of the suit land along with adjacent land and homestead since 25 years back and as such the plaintiff/respondent has no right, title and possession over the suit land and the alleged purchase of the suit land by the plaintiff/respondent Mokbul Ali was fraudulent and collusive one and hence prayed for dismissal of the suit. 5. On the basis of the pleadings, the learned trial court framed the following issues: 1. Whether the plaintiff is entitled to get a decree for recovery of the suit land by evicting the defendant based on plaintiff title? 2. Whether plaintiff is entitled to get a decree for perpetual injunction restraining the defendants? 3. To what relief (s), the parties are entitled to? 6. After the trial, the learned trial court dismissed the suit on contest. Title Appeal No.3/2007 thereafter was preferred by the plaintiff/respondent and vide judgment and decree dated 17.05.2007 passed by the learned Civil Judge (Senior Division), Hailakandi, the appeal was allowed thereby setting aside the judgment and decree passed by the learned trial court. Being aggrieved, the defendants/appellants preferred this second appeal which was admitted on 05.10.2007 on the following substantial questions of law:- 1. Whether the learned Lower Appellant Court below was correct in setting aside the judgment and decree passed by the learned trial court below by holding that the suit is not barred by the Law of Limitation? 2. Whether the learned Lower Appellate Court below was justified in setting aside the judgment and decree passed by the learned trial court below by holding that the co-sharers of the Original landowner are not necessary parties? 7. The learned First Appellate Court considered the Exhibit-1 which was executed on 13.04.1978 and the sale deed of the defendant/appellant No.1, Exhibit-A which was executed on 18.07.1982. 7. The learned First Appellate Court considered the Exhibit-1 which was executed on 13.04.1978 and the sale deed of the defendant/appellant No.1, Exhibit-A which was executed on 18.07.1982. The First Appellate Court held that in point of time the Exhibit-1 was executed prior and as such the Exhibit-A which was subsequent to the execution of the sale deed in favour of the plaintiff/respondent as such the fact of purchasing the total share of Mokbul Ali by the defendant/appellant No.1 is not valid. 8. The learned First Appellate Court considered the boundaries of the land purchased by the plaintiff/respondent as per Exhibit-1. Thereafter the evidence of PW1, i.e. the plaintiff/respondent, was considered wherein he deposed that subsequent to his purchase, the remaining land from Mokbul Ali was purchased by the defendant/appellant No.1 which falls in the southern side. Accordingly on perusal of the evidence on record and the exhibits including the sale deeds submitted by the parties to the suit came to the findings that there are no discrepancies in the boundaries of the suit land. On the issue whether the plaintiff is entitled for the relief without asking for the relief of partition of his land and also the land amongst co-sharers, i.e., legal heirs of late Arman Ali, the learned First Appellate Court considered the evidence of DW1, the defendant/appellant No.1 who deposed that the land left by Arman Ali were enjoyed by his legal heirs by an amicable arrangement and sold their respective shares as per the arrangement to different persons including the plaintiff/petitioner and the defendant/appellant No.1. Further it was held that the defendant/appellant No.1 purchased half kedar of land from the heirs of Nichar Ali and the entire share of Mokbul Ali as stated in the evidence and in the pleadings in written statement. The learned First Appellate Court came to the finding that formal partition of the land amongst co-sharers of late Arman Ali is not necessary. Finally, after coming and considering the mutation as per Exhibit-2 of the defendant/appellant, the learned First Appellate Court came to the finding that on 17.03.1992 the defendant/appellant trespassed into the land and thereafter totally dispossessed the plaintiff/respondent from the suit land on 13.09.1996 after getting acquittal in the appeal from the Sessions Court. The finding of the learned trial court was reversed thereby decreeing the suit of the plaintiff/respondent. The finding of the learned trial court was reversed thereby decreeing the suit of the plaintiff/respondent. It would not be out of place to mention here that the learned trial court dismissed the suit of the plaintiff/respondent by holding that the same was barred by the Law of Limitation which the first appellate court held the suit to be filed within the prescribed period of the Limitation Act, 1963. 9. Mr. Deka submits that the plaintiff/respondent in his deposition, more specifically in his cross-examination, stated that on 17.03.1992, the defendants/appellants dispossessed him from the suit land and in the suggestion it has been stated that he was not dispossessed on 30.09.1996. Pointing to the contradictory version with respect to the pleadings made in the plaint wherein the plaintiff/respondent stated that on 17.03.1992 he was dispossessed and after the defendants/appellants were acquitted in the appeal by the Sessions Court, the defendants/appellants again dispossessed the plaintiff/respondent from the suit land and the one in the cross-examination, Mr. Deka submits that the suit is out and out barred under the Law of Limitation. Referring to article 64 of the Limitation Act, 1963, Mr. Deka submits that from the deposition of the PW1 it is proved that he was dispossessed from the suit land on 17.03.1992 and thereafter he filed the suit on 18.09.2004 which is beyond the 12 years period prescribed under the said Article 64. Accordingly, the suit is barred by limitation because of the fact that it is only the relief of recovery of possession was sought for by the plaintiff/respondent. It is also argued that the fact stated in Exhibit-D, the FIR in the GR Case No.325/1992 lodged by the plaintiff/respondent specifically supports the case of the defendants/appellants that they have been possessing the suit land since the year 1981 after which they were delivered possession by Mokbul Ali and in fact the plaintiff/respondent was never delivered the possession of the suit land nor he was maintaining his possession from the date of purchase in the year 1978 till 17.03.1992 or 30.09.1996. Behind such a backdrop, the findings of the learned First Appellate Court that the suit is not barred by limitation, cannot be accepted. Further Mr. Behind such a backdrop, the findings of the learned First Appellate Court that the suit is not barred by limitation, cannot be accepted. Further Mr. Deka argued that even if the case of the plaintiff/respondent is considered under Article 65 of the Limitation Act, 1963 for recovery of possession on the basis of title then also the same stands barred by the said Article 65 of the Limitation Act. The defendants/appellants continued the possession at least from 17.03.1992 as apparent from Exhibit-D, the FIR lodged by the plaintiff/respondent and from the said date 17.03.1992 till the date of filing the suit the possession was adverse all along inasmuch as it is the own admission of the plaintiff/respondent that the defendant/appellant raised their homestead over the suit land. Such being the position either way even if the case be taken under Articles 65 or 64 of the Limitation Act, the suit is barred by the Law of Limitation. More so, on the face of the plea taken by the defendants/appellants of the nature of possession pleaded in the written statement. 10. Mr. Rajbarbhuiya opposed the submission of Mr. Deka and submits that the fact of possession by the defendants/appellants since the year 1992 and its continuity till 12 years has not been proved at all. Even if the Exhibit-D, i.e., the FIR is taken into consideration and the Exhibit-E, the deposition of plaintiff/respondent in GR Case No.325/1992, the fact of subsequent dispossession from the rest part of the suit land cannot be dislodged by the defendants/appellants. Under such circumstances the suit was wrongly held to be barred under the Law of Limitation by the learned trial court. 11. Considered the submission of the learned counsel. Article 64 of the Limitation Act, 1963 prescribes a period of 12 years for recovery of possession of immovable property based on previous possession and not on title from the date of dispossession. On the other hand, Article 65 of the said Act prescribes a period of 12 years for possession of immovable property or any interest thereon based on title when the possession of the defendant becomes adverse to the plaintiff. 12. The language of Article 64 and Article 65 are clear enough. If the suit is based on previous possession then there is no requirement of becoming the possession of the defendants adverse to the interest of the plaintiff/appellant. 12. The language of Article 64 and Article 65 are clear enough. If the suit is based on previous possession then there is no requirement of becoming the possession of the defendants adverse to the interest of the plaintiff/appellant. But it is the date of dispossession where from time starts running. On the other hand, Article 65 prescribes the period of 12 years to run only from that date from which the possession of the defendant becomes adverse to the plaintiff. The language of Article 65 is clear to that extent that before taking the benefit of Article 65 by the defendant he must show and specify the date from which the possession starts adverse to the interest of the plaintiff. On the other hand under Article 64, it is the date of dispossession and requires no further proof to show that the possession of the defendant started adverse to the interest of the plaintiff from the said date of dispossession. Under Article 65, the defendant may be possessing the suit land more than 12 years period prior to the filing of the suit but the same may not be adverse to the interest of the plaintiff and as such in order to extinguish the title which is the basis of claim of the plaintiff the same must extinguish on the strength of the adverse possession. In order to fulfil the requisite ingredients of adverse possession the burden lies upon the defendant to show that the possession of the defendant had become adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Along with the said two ingredients animus possidendi is also a requisite ingredient of adverse possession. The said possession must be with an intention not to vacate the same at any cost. In the case of Annakili v. A. Vedanayagam and others reported in 2007 AIR SCW 6892, the Hon'ble Supreme Court held as follows: "22. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possession must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title" 13. In the present case in hand, the plaintiff/respondent is claiming recovery of possession of the suit land on the basis of his sale deed, i.e., Exhibit-1 which he claims to purchase in the year 1979. On the other hand it is the claim of the defendants/appellants that they maintained the possession over the suit land since the date of purchase and the question of dispossessing the plaintiff/respondent in the year 1992 does not arise at all. In the cross-examination of defendant/appellant No.1 as DW1, in his chief, he has deposed that he never dispossessed the plaintiff/respondent and further deposed in his cross-examination that he is unaware if the plaintiff purchased any land from Mokbul. The present case admittedly falls under Article 65 of the Limitation Act, 1993 inasmuch as the plaintiff/respondent has claimed his title on the strength of the sale deed which was executed by his vendor Mokbul and recovery of possession on the strength of the said title devolved on him by way of purchase. Now in order to get the benefit of Article 65, the defendants/appellants must admit the title of the plaintiff/respondent and must dispossess the plaintiff/respondent on a particular date in order to let know the plaintiff/respondent the date or the time period on which the possession of the defendant/appellant became adverse. If considered the evidence of defendant/appellant No.1 as DW1, the said ingredients are missing at all. If considered the evidence of defendant/appellant No.1 as DW1, the said ingredients are missing at all. If there is no dispossession, the question of adverse possession does not arise at all. Accordingly, the defendant/appellant failed to show as to how the suit is barred by Article 65 of the Limitation Act, 1963 and as such the first substantial question of law is decided in the affirmative. 14. Mr. Deka submits that the suit land originates from the predecessor-in-interest of the common vendor of the plaintiff/respondent and the defendant/appellant No.1-Mokbul. Without partition of the share of the vendor Mokbul, he cannot deliver possession to the purchasers which the plaintiff/appellant failed to prove. In such a situation the legal heirs of late Arman Ali are necessary party/parties to the suit and they having not been impleaded the suit is not maintainable inasmuch as their relief of recovery of possession cannot be granted in absence of the co-sharers of the land. The learned First Appellate Court was wrong in holding that the co-sharers are not necessary parties. However, the said contention of Mr. Deka is denied by Mr. Rajborbhuiya. 15. A co-sharer can sell his share to a person. There is no bar. The purchaser will step into the shoe of the co-sharer vendor and the right to partition is also transferred to the purchaser from the co-sharer vendor. In the present case in hand, it is the claim of both the parties to the suit that they have purchased their respective land with specific boundaries, the share of Mokbul, common vendor of the plaintiff/respondent and the defendant/appellant No.1 Mokbul, sold his share of land as per the pleading of the defendants/appellants the defendant/appellant No.1 was delivered possession with respect to the land sold by the said Mokbul and his brother Nichar. If that be the pleading of the defendants/appellants a presumption will flow that as there was an arrangement amongst the legal heirs of Arman Ali as pleaded by the defendants/appellants there was no dispute with respect to the respective shares of the legal heirs of Arman Ali. Moreover, the suit is based on title, i.e. on the basis of the sale deed thereby claiming specific portion of land purchased by the plaintiff/respondent from his vendor Mokbul and it is the case of the defendants/appellants that defendant/appellant No.1 purchased the total share of Mokbul. Moreover, the suit is based on title, i.e. on the basis of the sale deed thereby claiming specific portion of land purchased by the plaintiff/respondent from his vendor Mokbul and it is the case of the defendants/appellants that defendant/appellant No.1 purchased the total share of Mokbul. Therefore, the legal heirs of Arman Ali are not necessary party because of the fact that the claim is with respect to a specific well defined suit property and the fact of sale by either of the parties to the suit of the land/share of Mokbul is not disputed. Accordingly, the finding of the learned First Appellate Court is upheld and the substantial question of law No.2 is also decided in the affirmative. 16. Accordingly, the appeal stands dismissed. 17. LCR be sent back. No costs.