JUDGMENT : AJOY KUMAR MUKHERJEE, J. 1. Being aggrieved by and dissatisfied with the judgment and decree dated February 12th & 15th, 2015 respectively, in Title Suit 67/2010, Defendant as Appellant preferred Title Appeal No. 13/2016 in the court of learned Civil Judge, (Senior Division), 3rd Court, Howrah, and after hearing said appeal, learned First Appellate Court was pleased to dismiss the appeal on contest by judgment and decree dated December 22, 2016, holding that Defendant/Appellant is a licensee and he has failed to prove his case of adverse possession and as such he is liable to be evicted from the suit property and thereby affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah, in aforesaid Title Suit No. 67/2010. 2. Plaintiffs case in a nutshell is that plaintiff is the absolute owner of the ‘A’ schedule property and ‘B’ schedule is part of ‘A’ schedule property. As per request made by the defendant, the plaintiff permitted the defendant to stay in a room in ‘B’ schedule as licensee without license fee on the assurance given by defendant that he will vacate ‘B’ schedule suit property and will deliver possession within short period. On 17.04.2010 plaintiff orally revoked license given to the defendant in respect of ‘B’ schedule noted suit property and thereafter filed Title Suit No. 67/2010, with a prayer for eviction of licensee and for permanent injunction. Defendant contested the suit by filing written statement contending that plaintiff is not absolute owner and occupier of the suit property and he also denied the plaintiff’s claim that ‘A’ schedule property to the suit originally belonged to plaintiff’s father Sufal Chandra Manna or after his death plaintiff has become the owner of the suit property as his legal heir. Along with the written statement defendant filed counter claim contending that municipal holding No. 346 G.T. Road, (south), Howrah is a big property and numerous persons are residing in different parts of the said holding. Along with the written statement defendant filed counter claim contending that municipal holding No. 346 G.T. Road, (south), Howrah is a big property and numerous persons are residing in different parts of the said holding. The defendant further contended that in or about 01.07.1981, he took possession of ‘B’ schedule property measuring 94.5 square feet at holding No. 346 G.T. Road, (south), Howrah, just beside the room of one Bhaskar Chowdhury and thereafter he constructed one room and varanda and continuing to remain in possession of said 94.5 square feet (approximately) of the Bastu Land together with one room and varanda situated at 346 G.T. Road, (south), Howrah, for a continuous period of 28 years un-interruptedly as his own property within the knowledge of the true owner of the property as well as within the knowledge of the plaintiff and plaintiff has got no right, title, interest over the said property of the defendant. The description of ‘A’ schedule property is indefinite. Ansar Ali Sardar, Afsar Ali Sardar, Golemur Nessa Bibi, Nurfan Nessa Bibi, Sukur Md. Mollah, Rosun Ali, Iddrish Ali Sardar, Nurulhuda Sardar, Anima Khatun, Sahidan Bibi are true owners of the said ‘A’ schedule property. Accordingly by way of counter claim defendant prayed for declaration of his absolute ownership and occupation in respect of schedule to counter claim and also for permanent injunction. Plaintiff contested said counter claim by filing written statement contending that the true owners as alleged by defendant are not made parties in defendants counter-claim and surprisingly defendant claimed title by way of adverse possession against plaintiff, whom he does not admit as owner. Moreover the description of property given in counter claim are concocted and as such counter claim is not maintainable and liable to be dismissed. 3. On the basis of the pleading submitted by both the parties learned Trial Court framed as many as ten issues. Plaintiff adduced evidence and has also filed and proved khajna dakhila, certified copy of C.S. recording, R.S. recording and other relevant documents which are marked as exhibit and defendants also adduced evidence as DW1 and one Shambhu Nath Chowdhury adduced evidence as DW2 and the assessment demand register is marked as exhibit ‘A’ Record of Rights Howrah municipal corporation is marked as exhibit ‘B’. 4. 4. The learned Trial Court after considering the documentary and oral evidence observed that both the ‘B’ schedule property and property mentioned in the schedule of counter claim situates at holding No. 346 G.T. Road (south), Howrah. However, the defendant has not filed any document showing khatian No. or dag No. of the property possessed by him under holding No. 346 G.T. Road, (south), Howrah and there is nothing to show that ‘B’ schedule property is different from the property mentioned under schedule of counter claim. Learned trial court further held that in terms of the documents, marked as exhibit 2,3,4 and 5 and in the absence of any contrary evidence, there is no confusion regarding the possession of Sufal Chandra manna as “dakhalkar basat praja” of ‘A’ schedule as well as ‘B’ schedule property. Said Sufal Chandra Manna being the “dakhal kar basat praja” was previously guided by the West Bengal non-agricultural tenancy Act and subsequently he became a riyat under Section 3(A) of West Bengal Land Reforms Act, 1955 measuring.0453 decimal under khatian No. 49 R.S. dag No. 57 by operation of law. Plaintiff being the sole legal heir of Sufal Chandra Manna became the owner of the ‘A’ schedule property to the plaint. Learned trial court observed, when defendant is claiming ownership in the suit property by filing counter claim then he has to prove the same. Surprisingly DW2 says he does not know exact measurement of property on which the defendant claimed adverse possession and he also could not say in which year construction was done by the defendant over the suit property and he also could not say in which year defendant came to the suit property. Learned Trial Court further held that though continuous possession of the defendant in the suit property for 20 years is not denied by the plaintiff but such long possession can never be construed as adverse possession. Even uninterrupted possession for several years cannot confer title by way of adverse possession. The person who based his title on adverse possession, he has to show by clear and unequivocal evidence that his possession was hostile to the real owner and amounts to denial of his title to the property claimed. There is no evidence that he took forcible possession by ousting original owner and made construction therein out of his own fund. The person who based his title on adverse possession, he has to show by clear and unequivocal evidence that his possession was hostile to the real owner and amounts to denial of his title to the property claimed. There is no evidence that he took forcible possession by ousting original owner and made construction therein out of his own fund. Defendant failed to file any khajna dakhila or municipal tax receipt or any entry in Record of Right of settlement department or Howrah Municiapl Corporation, that he took forcible possession over said property or he is paying rents or taxes since 01.07.1981 or entry in support of his possession has been made in any Record of Rights. Defendant has failed to establish his claim of adverse possession over ‘B’ schedule property, so, he must be staying therein as licensee. Accordingly learned trial Court decreed the suit in favour of plaintiff and directed the defendant to vacate the ‘B’ schedule suit property in favour of plaintiff and by the said order learned trial court dismissed defendant’s counter claim. 5. Being dissatisfied with the said judgment dated 12.02.2015 passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah in Title Suit No. 67/2010, Defendant/Appellant preferred first appeal which came up for hearing before the learned Civil Judge (Senior Division), 3rd Court, Howrah, being Title Appeal No. 13/2016. The learned First Appellate Court after considering the materials available in the record and after hearing both the parties, was pleased to dismiss the Appeal and affirmed the judgment and decree passed by the trial court. Learned First Appellate Court did not believe the defendant’s case regarding acquisition of title by way of adverse possession, on the ground that defendant failed to prove as to how and when alleged adverse possession commenced and what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. If the defendant became owner, then he must have recorded his name in the concerned record of rights and must have paid rent in respect of ‘B’ schedule property but defendant did not produce any such document. If the defendant became owner, then he must have recorded his name in the concerned record of rights and must have paid rent in respect of ‘B’ schedule property but defendant did not produce any such document. Defendant has denied the title of the plaintiff and his father Sufal and claimed that the real owner of the suit property are Azizul Rahaman Sardar and others but in the counter claim he has not made said alleged true owners of ‘B’ schedule property as party to the counter claim. It was further observed by the First Appellate Court that on perusal of Memo No. 6/4735/C/92 dated 14.09.1994 issued by Government, it is clear that “dakhal kar basat praja” is guided by non-Agricultural Tenancy Act 1949 and no such land was vested under West Bengal Estate Acquisition Act, 1953. First Appellate Court further held that defendant’s document exhibit ‘A’ relates to premises No. 343+344+346 G.T. Road, (south), Howrah which recorded not in the name of defendant but in the name of Azahar Rahaman & others and the other document marked as exhibit ‘B’ which the defendant relied reveals that Abdul Jabbar Sikdar & others were tenants under zamindar and exhibit ‘D’ i.e. Municipal Tax bill is also in the name of Azahar Rahaman Sardar & others and without making said Azahar & others, defendant cannot pray for declaration of title by way of adverse possession. Moreover defendant /Appellant has not produced any document to show that the schedule property of counter claim situates within property of holding No. 343+344+346 G.T. Road (south), Howrah, or schedule property of counter claim has any separate or distinct identity. Relying upon the cardinal principle of law that when the plaintiff has evidence to prove his title in the property and defendant has failed to prove his acquisition of title by way of adverse possession, then the defendant’s possession must be permissive. Moreover defendant has also miserably failed to prove by way of any cogent document or corroborative evidence that he has raised construction in the suit property. Moreover defendant has also miserably failed to prove by way of any cogent document or corroborative evidence that he has raised construction in the suit property. Learned Court also held that the licensor who granted the license died and with the death of licensor the license automatically got revoked and as such no notice to quit is required to be served upon the defendant and accordingly the learned First Appellate Court, considering the facts and circumstances of the case came to the conclusion that the plaintiff has been able to prove that plaintiff’s father inducted the defendant as licensee in the suit property which has been revoked and the learned trial court did not commit any error in passing the decree in the suit and dismissing the counter claim filed by the Defendant/Appellant. 6. Being aggrieved and dissatisfied with the aforesaid judgment passed by the Civil Judge (Senior Division), 3rd court, Howrah, dated 22.12.2016, Defendant/Appellant has sought for admission of second appeal before us contending that substantial questions of law involved. 7. Learned counsel for the appellant strenuous argued that plaintiffs have claimed their ownership just on the basis of entry in the record of rights, and operation of law but learned courts below did not consider whether plaintiff can be held to be non- agricultural tenant, when he has been possessing part of premises situated at 346 G.T. Road (south), Howrah, and not any vacant land and as such does not come under the definition of non-agricultural tenant. He further argued that the government circular dated 14.09.1994 cannot supersede the statutory provisions under Non-Agricultural Tenancy Act and courts below wrongly came to the conclusion that plaintiff’s predecessor became riyat under West Bengal Land Reforms Act by operation of law. Learned Courts below has placed wrong reliance in Section 110 of Evidence Act, presuming plaintiff as owner. Even if for the sake of argument if it is presumed that Sufal Chandra Manna was holding the land as non-agricultural tenant, then also due to induction, the defendant also to be considered as rayat having a right of heritability.Accordingly he argued that when the possessory right of both the parties are on a equal footing then they should be placed in a similar position and one cannot evict other. Furthermore learned courts below should have considered that due to long uninterrupted possession defendant also acquired ownership by way of prescription. 8. Furthermore learned courts below should have considered that due to long uninterrupted possession defendant also acquired ownership by way of prescription. 8. There is no dispute that the name of Sufal Manna recorded in respect of 4.56 satak in plot No. 57 as appearing in certified copy of RSROR, marked as exhibit 4 and it also appears from exhibit 5 i.e. certified copy of searching report dated 08.09.1993 issued by BLLRO marked as exhibit 5 that the name of Sufal Manna was recorded as “basat praja” in respect of the holding No. 346 G.T. Road (south), Howrah recorded in sit No. 125 under khatian No. 49. The defendant’s document marked as exhibit ‘B’ reveals that the names of Abdul Jabbar Sirdar and others have been recorded as tenant under the zamindars in respect of the premises No. 346 G.T. Road (south), Howrah but the quantum of said holding is 4 bigha, 6 khata 9 chatak and 15 square feet. In exhibit ‘A’, the total quantum of holding No. 343+344+346 G.T. Road (south), Howrah, has been mentioned as 19 cottah 11 chitak 34 ½ square feet in the names of Azizur Rahamn & others. There is no evidence that original holding No. 346 ceased to exist. There is nothing to show that the schedule mentioned property of the counter claim has been recorded in the name of defendant. Though in the written statement defendant /appellant has pleaded that he constructed partly paka and partly bamboo structure in holding No. 346 G.T. Road (south), Howrah, covering an area of 94.5 square feet but in the evidence he has stated that the property in respect of which the plaintiff filed this suit and the property in respect of which he claimed his ownership are not the same property. The suit property of his counter claim is situated under holding No. 40 G.T. Road (cross-examination dated 12.09.2014). He further admitted that his original house is at Burdwan and he came from his native village for his job and when he came at Howrah for his job he had no shelter for residing at Howrah. The suit property of his counter claim is situated under holding No. 40 G.T. Road (cross-examination dated 12.09.2014). He further admitted that his original house is at Burdwan and he came from his native village for his job and when he came at Howrah for his job he had no shelter for residing at Howrah. From exhibit ‘A’ & ‘B’ it is apparent that previously holding No. 346 G.T. Road (south), Howrah was measuring about 4 bigha 6 cottah 9 chatak, 15 square feet and subsequently holding No. 343+345+346 G.T. Road(south), Howrah was created covering an area of about 19 katha 11 chatak 34 square feet and as such it is clear that other portion of original holding No. 346 G.T. Road (south), Howrah was given to the other persons, for which the property for holding No. 346 G.T. Road (south), Howrah is reduced to 9 cottah, 11 chitak 34 ½ square feet and renumbered as 343+345+346 G.T. Road. From exhibit 3 and 4 it appears that the name of Sufal Manna was recorded at “dakhal kar basat praja” under Hazinur Mohammad Molla and others in respect of.0456 decimal of land in the year 1959. Though exhibit 3 is not finally published but exhibit 4 i.e. RSROR confirms Sufal Manna’s possession in the suit property. Exhibit 5 i.e. certified copy of searching slip issued by the office of DLLRO, Howrah on 08.09.1993 makes it clear that the name of Sufal was recorded as ‘dakhalkar’ but defendant could not file any document to contradict exhibit 2,3,4 & 5. Accordingly in view of that government circulator dated 14.09.1994 marked as exhibit 5 and in terms of section 3(A) of West Bengal Land Reforms Act, the non-agricultural tenant like ‘dakhal kar basat praja’ became direct tenant under the government. Though defendant had every opportunity to bring documents from settlement department to show that the name of Sufal Chandra Manna was wrongly recorded in the record of rights but the defendant/appellant failed to do the same. Moreover there is nothing to show that the Defendant/Appellant had taken any step to incorporate his name either in the settlement record or in the office of Howrah municipal corporation. Moreover there is nothing to show that the Defendant/Appellant had taken any step to incorporate his name either in the settlement record or in the office of Howrah municipal corporation. Accordingly on the basis of presumptive value as appearing from the record of rights and in the absence of any contrary document or evidence on behalf of the defendant, plaintiffs possession over the suit property must be superior and in the absence of proving right to stay by the defendant in the suit property his status must be held to be that of a licensee and as such his counter claim cannot succeed. 9. Sufal Chandra manna, predecessor of plaintiff being “dakhal kar basat praja” became direct tenant under the government of West Bengal as per the provisions of section 3(A) of West Bengal Land Reform Act 1955 in respect of suit property. Defendant in respect of self same suit property claimed that he became owner by way of adverse possession but surprisingly defendant denies title of the plaintiff in the suit property. Until he admits the title of plaintiff as real owner he cannot acquire title in the suit property by way of adverse possession against plaintiff. Though defendant has tried to set up a story that Ansar Ali Sardar and others are the real owner in the suit property but he has miserably failed to prove the same nor in order the prove his claim of acquisition of title by way of adverse possession, he has made said alleged real owners as party in his counter claim. No document has been proved by the defendant in support of alleged ownership of suit schedule property by the said Ansar Ali Sardar and others. Where the question of title is involved and where both the plaintiff and defendant are claiming title over the suit property and the plaintiff has proved his prima facie acquisition of title to the knowledge of the defendant, who is in possession of the property, what the defendant is expected to prove is his right to stay in the property, in exercise of his acquisition of right by way of adverse possession. As in the present case defendant has miserably failed to prove his acquisition of title by way of adverse possession, then the basis of his possession must be permissive as mere possession even if for a long duration does not automatically becomes adverse possession. As in the present case defendant has miserably failed to prove his acquisition of title by way of adverse possession, then the basis of his possession must be permissive as mere possession even if for a long duration does not automatically becomes adverse possession. In view of above we do not find any question of law far from substantial question of law involved to admit the second Appeal and as such appellant’s prayer for admission of second appeal stands dismissed. 10. SA 145 of 2019 is dismissed. 11. There will be no order as to costs. 12. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. 13. Let the copy of the order be send to the learned Civil Judge (Junior Division), 2nd Court, Howrah. I agree - Soumen Sen, J.