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2019 DIGILAW 456 (CAL)

Bandana Dey Sarkar (Ghosh) v. Mukul Chakraborty

2019-04-08

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. Judgment and decree passed in Title Suit No.48 of 1996 was assailed by the defendants of the suit in Title Appeal No.131 of 1998. Learned Judge in First Appellate Court allowed the appeal on contest without cost and set aside the judgment and decree dated 29th July, 1998 passed by the learned Civil Judge (Junior Division) 1st Court at Baruipur in Title Suit No.48 of 1996. 2. The said judgment and decree of dismissal of the appeal is impugned in the instant second appeal. 3. Now the relevant facts. 4. The appellant as plaintiff filed a suit for eviction against the defendants/respondents claiming their status as trespassers in respect of the suit property and recovery of possession in the 1st Court of learned Munsiff at Baruipur. The said suit was registered as Title Suit No.48 of 1996. It was pleaded by the plaintiff/appellant that she filed Title Suit No.91 of 1983 against the defendant for declaration of her title over the suit property and recovery of possession of the same in the 8th Court of the learned Sub-Judge at Alipore and the said suit was decreed on contest. After the decree was passed in favour of the plaintiff, it was put into execution which was registered as Title Execution Case No.4 of 1985. In the said Execution Case, the plaintiff obtained possession with the help of police on 17th June, 1987 and the Execution Case was concluded on full satisfaction. That on 2nd March, 1990 the defendants again trespassed into the suit property by breaking open padlocks of the doors of two rooms removed the building materials of the brother of the plaintiff who used to stay in the suit premises after the plaintiff received possession of the same in execution of the decree and took over illegal, forcible possession of the same. The plaintiff immediately lodged a complaint in the local P.S. against the defendants on the basis of which a criminal case under Sections 447/448/379/506 I.P.C. was initiated by the police authority against the defendants. It is further pleaded by the plaintiff that the defendants have no right, title and interest over the suit property and their enforceable possession of the same as trespassers. So, she prayed for eviction of the defendants and recovery of 'khas' possession of the suit property. 5. It is further pleaded by the plaintiff that the defendants have no right, title and interest over the suit property and their enforceable possession of the same as trespassers. So, she prayed for eviction of the defendants and recovery of 'khas' possession of the suit property. 5. The defendant No.1, namely, Santosh Kumar Chakraborty contested the suit by filing a written statement wherein he denied entire allegations made out against him by the plaintiff. Apart from disputing the fact of delivery of possession by the Court Bailiff through police help, it was specifically pleaded by the defendant No.1 that he has been occupying the suit premises since 1976 with the full knowledge of the plaintiff openly, uninterruptedly, peacefully and against the interest of the plaintiff being the owner of the suit property and thereby has acquired an indefeasible right and title over the same by way of adverse possession. 6. The defendant No.2 filed a separate written statement and admitted that the plaintiff obtained recovery of possession of the suit property on 17th June, 1987 in execution of decree passed in Title Suit No.91 of 1983. Subsequently the defendant No.2 never trespassed into the suit property. 7. The learned trial Judge on due consideration of the pleadings of the parties framed as many as four issues and on assessment of evidence on record decreed the suit. 8. The defendant No.1 challenged the aforesaid judgment and decree by filing an appeal being Title Appeal No.131 of 1998 in the Court of the learned Civil Judge (Senior Division) at Baruipur. Learned Judge in First Appellate Court was pleased to reverse the judgment and decree passed by the trial Court mainly on the ground that the plaintiff/appellant did not get actual possession of the suit property in execution of the decree passed in Title Suit No.91 of 1983. On the other hand, only symbolical possession was given in favour of the plaintiff decree holder of the aforesaid suit. Secondly, it was held by the learned Judge in First Appellate Court that the learned trial Judge failed to consider the long and uninterrupted possession of the defendant No.1 in respect of the suit property and claim of adverse possession of the defendant was not at all dealt with by the learned trial Judge. 9. Secondly, it was held by the learned Judge in First Appellate Court that the learned trial Judge failed to consider the long and uninterrupted possession of the defendant No.1 in respect of the suit property and claim of adverse possession of the defendant was not at all dealt with by the learned trial Judge. 9. While admitting the second appeal preferred by the plaintiff/appellant, the Division Bench of this Court vide order dated 18th October, 2001 framed three substantial questions of law as it was under:- (i) Whether the court of appeal below erred in law in not holding that the delivery of symbolical possession which was made on 17th June, 1987 by execution of the decree passed in the Title Suit No.91 of 1983 arrested the continuity of adverse possession of the defendants or not, whether the court of appeal below erred in law in reversing the judgment of the trial court without dealing the reasoning and finding of the trial court or not? (ii) Whether the judgment and decree of the lower appellate court was a proper judgment of reversal when the appellate court failed to consider the exhibit documents (Ext.3, 3 (Ka), Ext. 4 series, Ext.GA and Ext.7) and if such consideration was made, it could be proved that the plaintiff got delivery of possession of the suit premises and the defendants have trespassed the suit premises or not? (iii) Whether the court of appeal below erred in law in not holding that if the decree holder is dispossessed after getting possession of the suit property in execution of the decree passed in the earlier suit to the satisfaction of the decree of possession such decree holder gets a fresh cause of action for filing a second suit on the basis of his dispossession provided a suit be filed within the period of limitation from the date of dispossession or not? 10. Mr. Anit Kumar Rakshit, learned Advocate for the appellant at the outset draws my attention to the documents marked exhibits during trial of Title Suit No.48 of 1996. Exhibit-3 is the certified copy of an order dated 31st January, 1985 passed in Title Suit No.91 of 1983 in favour of the present appellant and against the respondent of the instant appeal. Anit Kumar Rakshit, learned Advocate for the appellant at the outset draws my attention to the documents marked exhibits during trial of Title Suit No.48 of 1996. Exhibit-3 is the certified copy of an order dated 31st January, 1985 passed in Title Suit No.91 of 1983 in favour of the present appellant and against the respondent of the instant appeal. It is ascertained on perusal of exhibit-3 that the present appellant as plaintiff filed the said Title Suit No.91 of 1983 for declaration of her title, permanent injunction and recovery of khas possession of the suit premises. The suit was decreed exparte by the learned Civil Judge (Senior Division), 8th Court at Alipore on 31st January, 1985. The decree passed in favour of the appellant in the said suit was marked as exhibit-3(ka) in Title Suit No.48 of 1996. It is further submitted by Mr. Rakshit, learned Advocate for the appellant that the appellant/decree holder put the said decree into execution which was registered as Title Execution Case No.4 of 1985. In execution of the decree passed in Title Suit No.91 of 1983, the process server delivered actual possession (Khas Dakhal) of the suit premises in favour of the brother of the plaintiff/appellant. Process server's report relating to delivery of possession of the suit premises dated 17th June, 1987 was marked as exhibit-4 in Title Suit No.48 of 1996. 11. Referring to the above documents, it is submitted by Mr. Rakshit that the appellant got exclusive possession of the suit premises in execution of the decree in 1987. It was the case of the plaintiff/appellant that the defendants/respondents illegally dispossessed the plaintiff/appellant and trespassed into the suit property by breaking open padlocks on 2nd March, 1990 in between 7 a.m. and 8 a.m. The appellant instituted the suit for eviction against the defendants/respondents treating them as trespassers on 6th March, 1996. Thus the suit was filed well within the period of limitation contemplated under Article 64 of the Limitation Act. 12. Learned Advocate for the appellant next submits that the learned judge in first appellant court decided the appeal against the plaintiff/appellant holding, inter alia, that the appellant got symbolic possession of the suit property by execution of decree on 17th June, 1987. According to the learned Judge, First Appellant Court, symbolical possession does not mean actual physical possession by the appellant. According to the learned Judge, First Appellant Court, symbolical possession does not mean actual physical possession by the appellant. On the contrary, the respondents pleaded that they acquired title over the suit property by adverse possession. The learned Judge in First Appellant Court allowed the appeal on the ground that the trial court did not frame any issue with regard to the claim of title by the respondents by adverse possession. It was held by the learned First Appellant Court: "In the whole aspect of the alleged fact of taking possession of the disputed suit property and being dispossession therefrom pleaded according to the case of the respondent-plaintiff, there is no satisfactory evidence produced by the respondent-plaintiff leading the court to presume that possession of respondent-plaintiff, was effected on and from 17.06.1987 on the basis of the said execution case nor is there any cogent evidence showing that she has been dispossessed from the suit property by the alleged act of defendant-appellant. So in view of the facts and circumstances of the case, it can be said that the respondent-plaintiff had no cause of action to institute the case and thereby the suit in its present form filed before the learned trial court below is not maintainable." 13. According to Mr. Rakshit, the learned Judge in First Appellate Court completely misdirected himself and failed to hold that the present appellant got physical possession of the suit property on 17th June, 1987 in execution of decree. The process server's report and acceptance of actual physical possession by the brother of the present appellant establish the said fact of delivery of possession of the suit property in favour of the plaintiff/appellant by evicting the defendants/respondents in execution of the decree. There is no reason to disbelieve the process server's report which was exhibited during the trial of the suit. The learned Judge in First Appellate Court failed to appreciate that delivery of possession in execution of a decree in favour of the decree holder and the report thereof is a document of proof of possession in favour of the appellant. There is no reason to disbelieve the process server's report which was exhibited during the trial of the suit. The learned Judge in First Appellate Court failed to appreciate that delivery of possession in execution of a decree in favour of the decree holder and the report thereof is a document of proof of possession in favour of the appellant. The learned Judge in First Appellate Court also failed to appreciate that the respondents could not produce any document to show their continuous possession in the suit property or that they were in actual physical possession in respect of the suit property during the period between 17th June, 1987 and 1st March, 1990. 14. Having heard the submission made by the learned Advocate for the appellant and on perusal of the entire materials available in Lower Court records, I can safely hold without any hesitation that the appellant got possession of the suit property in execution of decree passed in Title Suit No.91 of 1983 on 17th June, 1987. From exhibit-4, viz, process server's report it is absolutely clear that the respondents were evicted from the suit property and possession was delivered to the brother of the plaintiff who acknowledged possession on behalf of the plaintiff/appellant by putting his signature on the writ of possession. 15. It is the case of the plaintiff/appellant that the defendants/respondents again trespassed into the suit property on 2nd March, 1990 taking the advantage of temporary absence of the brother of the appellant by breaking open padlocks of two rooms. 16. The respondent No.1 in his written statement denied the said allegation of taking over forcible possession of the suit property on 2nd March, 1990 and pleaded that he had been possessing the suit property since 1976 and thereby acquired title by adverse possession. It is pertinent to mention that the defendant No.1/respondent failed to produce any evidence in support of his claim of acquiring title over the suit property by adverse possession during trial of the suit. Defendant No.2, on the other hand, by filing a written statement admitted that he and defendant No.1 were evicted from the suit property in execution of decree passed in Title Suit No.91 of 1983 on 17th June, 1987. In Mrs. Manikalaya Rao vs. M. Narasimhaswami and others, (1966) AIR SC 470, the Hon'ble Supreme Court held as hereinunder:- "The question of adverse possession is one of fact. In Mrs. Manikalaya Rao vs. M. Narasimhaswami and others, (1966) AIR SC 470, the Hon'ble Supreme Court held as hereinunder:- "The question of adverse possession is one of fact. If the person against whom adverse possession is set up shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolical possession, whether it was legal or otherwise the purchaser did obtain possession and this was an interruption of the adverse possession by the coparceners." The above principle is squarely applicable in the instant case. Even assuming that the respondents were in possession of the suit property, before institution of Title Suit No.91 of 1983 by the plaintiff/appellant, they were dispossessed therefrom in execution of decree with effect from 17th June, 1987. According to the plaintiff, the respondents trespassed into the suit property again on 2nd March, 1990. Under Article 64 of the Limitation Act the plaintiff would have to file a suit for recovery of possession of the suit property from where she was dispossessed within 12 years from the date of dispossession. The plaintiff/appellant instituted the suit for eviction of trespasser and recovery of possession of the suit property against the respondents on 6th March, 1996. In view of such circumstances, the learned Judge, First Appellate Court erred in law in holding that the plaintiff had no cause of action to institute the suit. The learned Judge also failed to appreciate that the respondents plea for adverse possession was not at all maintainable in view of the fact that the plaintiff/appellant received actual physical possession of the suit property in execution of the decree passed in Title Suit No.91 of 1983. I am constrained to hold that the impugned judgment passed by the learned Civil Judge (Senior Division) at Baruipur in Title Appeal No.131 of 1998 is perverse for non consideration of material evidence on record and the same is liable to be set aside. 17. In view of the above discussion, the instant second appeal be and the same is allowed exparte without cost. 17. In view of the above discussion, the instant second appeal be and the same is allowed exparte without cost. The judgment and decree passed in Title Appeal No.131 of 1998 by the learned Civil Judge (Senior Division) at Baruipur is set aside and the judgment and decree passed by the learned Civil Judge (Junior Division) 1st Court at Baruipur in Title Suit No.48 of 1996 is restored. 18. The respondents are directed to quit, vacate and deliver up peaceful possession of the suit property within one month from the date of delivery of this judgment, failing which the appellant is at liberty to get recovery of possession of the suit property by putting the decree passed in Title Suit No.48 of 1996 in execution. 19. The Lower Court records be sent to the courts below at the earliest. 20. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.