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2023 DIGILAW 640 (CAL)

Sukhoda Roy v. Anwesha Sarkar

2023-04-27

KRISHNA RAO

body2023
JUDGMENT : KRISHNA RAO, J. 1. This second appeal is directed against the judgment and decree of the First Appellate Court dated 30th November, 2018 passed in Title Appeal No. 17 of 2018 (Smt Sukhoda Roy vs. Smt Anwesha Sarkar and Another) wherein the First Appellate Court had affirmed the judgment and decree of dismissal of suit passed by the learned Civil Judge (Senior Division), South Andaman District at Port Blair in Title Suit No. 27 of 2006 dated 21st October, 2011. 2. The plaintiff instituted the Title Suit No. 27 of 2006 praying for a declaration that late Nityananda Roy, deceased husband of the plaintiff, never agreed to sell away any portion of the land bearing survey No. 20/4 at Rampur, Rangat, and never received any money from the defendant no. 1 and a further declaration that both the defendants are rank encroachers on survey no. 20/4 at Rampur, to the extent of 750 sq.mtrs and two huts standing therein The appellant had further prayed for a decree directing the ejection of both defendants from the total suit property and restoration of its actual/khas, peaceful and vacant possession to the plaintiff and allied prayers. 3. The plaintiff/appellant is a widow of Late Nityananda Roy resident of village Rampur under Rangat Tehsil. Her husband died on 11th June, 1991. 4. The original defendant no. 1 Smt Sandhya Roy is the close relative of the plaintiff/appellant as she being the younger sister of the husband of the plaintiff and daughter of Late Jagbandhu Roy. The original defendant no. 1 had married one Ranjit Majhi but he died sometime in the year 1986 and thereafter the original defendant no. 1 had married second time to one Asish Sarkar sometime in the year 1987. 5. The husband of the plaintiff late Nityananda Roy was the lawful owner of a good number plots of various nature situated at Rampur village under Rangat Tehsil and after the death of Nityananda Roy, the plaintiff/appellant herein became the sole owner of the properties left behind her husband. Out of such plots, survey no. 20/4 measuring an area of 1900 sq.mtrs (0.19 hectares) situated at Rampur village classified as House Site was also recorded in the name of Nityananda Roy. 6. After the death of the husband of the original defendant no. 1, the plaintiff had permitted her to occupy the small portion of land in survey no. Out of such plots, survey no. 20/4 measuring an area of 1900 sq.mtrs (0.19 hectares) situated at Rampur village classified as House Site was also recorded in the name of Nityananda Roy. 6. After the death of the husband of the original defendant no. 1, the plaintiff had permitted her to occupy the small portion of land in survey no. 20/4 along with two temporary huts constructed by the father of the plaintiff. The land measuring an area of 150 sq.mtrs in survey no. 20/4 was temporarily given to the original defendant for a limited period of five years with the understanding that the original defendant will deliver back the actual, peaceful and vacant possession of the said portion of land along with two huts to the plaintiff on expiry of five years. 7. The original defendant no. 1 along with her second husband started residing in the suit property. After completion of stipulated period of five years, in the month of March, 1995, the plaintiff/appellant had approached the defendant no. 1 and requested to vacate the suit property but the original defendant no. 1 flatly refused to vacate the said suit property and claiming that the deceased husband of the plaintiff had agreed to sell an area of 1000 sq.mtrs in survey no. 20/4 for a valuable consideration and accordingly, the defendant no .1 failed to vacate the premises. 8. The plaintiff/appellant had lodged a complaint against the defendant no. 1 in the month of October, 2005 to the Tehsildar, Rangat Tehsil and prayed for eviction of the defendant no. 1 from the suit property and to restore the said portion of land in favour of the plaintiff. The Tehsildar had initiated the proceeding but subsequently the said proceeding was dismissed on the ground that the Tehsildar is not having the jurisdiction as the encroachment being more than two years old and advised the plaintiff to seek appropriate remedy before the Civil Court. 9. The original defendant no. 1 had sent a legal notice to the plaintiff making certain false and mischievous claim against the plaintiff on 2nd July, 2005. On receipt of the said notice, the plaintiff had sent reply to the defendant denying the allegations made in the said notice. After issuance of notice by the defendant no. 9. The original defendant no. 1 had sent a legal notice to the plaintiff making certain false and mischievous claim against the plaintiff on 2nd July, 2005. On receipt of the said notice, the plaintiff had sent reply to the defendant denying the allegations made in the said notice. After issuance of notice by the defendant no. 1, instead of vacating the premises, had again encroached a further area of 600 sq.mtrs of land adjacent to the earlier portion of land which was given to the defendant no. 1 on a temporary basis. 10. The defendant no. 1 had obtained electric connection and water tap connection in the said property without any consent of the plaintiff. The original defendant no. 1 had illegally inducted the defendant no. 2 in the suit property sometime in the month of May, 2005. On 27th January,2006, the plaintiff had sent a notice to the defendants calling upon the defendants to vacate the premises and to hand over the possession but in spite of receipt of the notice, none of the defendants have vacated the premises and still the defendants are in illegal occupation of the said premises and accordingly, the plaintiff has filed the suit. 11. The defendants have entered into the suit and have filed their written statement jointly. In the written statement, it is admitted by the defendant that the father of the defendant no. 1, Shri Jagabandhu Roy came to these Islands in the year 1954 under the settlement scheme along with his father and was allotted the land bearing Survey nos. 20/2, 20/4, 21/1, 21/2, 22, 23, 24, 157 and 158 measuring an area of 0.26, 0.19, 2.14, 0.37, 0.36, 0.11, 0.44, 1.80 and 1.80 respectively jointly with his son Nityananda Roy in the Rampur village Rangat Tehsil. It is the further case of the defendant that after the allotment of the said land, the entire family started residing in the said landed property at Rangat. After the death of the father of the original defendant sometime in the year 1965, the entire landed property was jointly recorded in the name of Sarti Roy and Nityananda Roy. 12. The second husband of the defendant no. 1 was an unemployed person and having no land or house of his own, therefore, the husband of the plaintiff (Nityananda Roy) allowed the defendant no. 12. The second husband of the defendant no. 1 was an unemployed person and having no land or house of his own, therefore, the husband of the plaintiff (Nityananda Roy) allowed the defendant no. 1 to occupy 1000 sq.mtrs of land out of survey no. 20/4 for the purpose of construction of residential house and it was assured that on division of the entire landed property she will get her remaining entitled share being the legal heir of Jagbandhu Roy. 13. In the year 1990, the entire landed property was divided into two parts wherein survey nos.20/4, 23, 24, 158 has been subdivided in the name of Nityananda Roy and survey nos.20/2, 21/2, 22, 21/1(P), 157 have been subdivided in the name of Sarati Roy i.e mother of the defendant no. 1. After the sub-division of the said landed property, the defendant no .1 has become 1/6th share holder from the property which has come in the share of her mother Sarati Roy but at the same time the land in which she has constructed her house gone in favour of her brother Nityananda Roy. 14. It is the further case of the defendant no. 1 that the defendant No. 1 has spent a lot of money for development of the said portion of the land for construction of house and for planting various fruit bearing trees and thus, she expressed her inability to vacate the land but at the same time she has offered the husband of plaintiff for purchase the same to which he agreed and a deal was fixed at the rate of Rs.5000/-and in the month of May, 1991, the consideration amount of Rs.5000/-was paid to the Nityananda Roy by the defendant no. 1 in presence of many persons and the husband of the plaintiff had allowed the defendant no. 1 to possess and enjoy the same as her own land and thus from the said date, upon the strength of oral sale agreement, the defendant no. 1 is enjoying the open, hostile, uninterrupted and exclusive possession of the 1000 sq.mtrs of land out of survey no. 20/4. 15. On perusal of the pleadings, the learned Trial Judge had framed altogether six issues which are as follows: (i) Whether the present suit is maintainable in present form and prayers? (ii) Whether the plaintiff has any cause of action for filing of this suit or not? 20/4. 15. On perusal of the pleadings, the learned Trial Judge had framed altogether six issues which are as follows: (i) Whether the present suit is maintainable in present form and prayers? (ii) Whether the plaintiff has any cause of action for filing of this suit or not? (iii) Whether the plaintiff has any right, title and interest on the suit property? (iv) Whether the defendant has encroached property of the plaintiff or not? (v) Is the plaintiff entitled to get decree as prayed for? (vi) To what other relief/reliefs the plaintiff is entitled? 16. During the evidence, the plaintiff has examined altogether three witnesses namely: (i) PW-1 - Parwati Biswas, daughter and POA holder of the plaintiff. (ii) PW-2 - Smt Laxmi Mallick, elderst daughter of the plaintiff. (iii) PW-3 - Keshab Lal Sarkar, local witness. The plaintiff has exhibited altogether eight (8) documents i.e. (i) Exhibit-1 - Power of Attorney. (ii) Exhibit-2 - Death Certificate of Nityananda Roy. (iii) Exhibit-3 - Death certificate of Sarathi Ray. (iv) Exhibit-4 - Certified copy of the Revenue Case No. TR/RC/01/2005. (v) Exhibit-5 - Proceeding dated 09.01.2005 before the Sarpanch; (vi) Exhibit-6 - Legal notice issued by the defendant no. 1 to the plaintiff dated 02.07.2005. (vii) Exhibit-7 - Carbon Copy of the legal notice issued to the defendant o.1 dated 27.01.2006. (viii) Exhibit-8 - Courier receipt. 17. The defendant no. 1 had adduced altogether four witnesses namely: (i) PW-1 - Sandhya Ray, defendant no. 1 herself. (ii) PW-2 - Sarala Bachar, sister of defendant no. 1. (iii) PW-3 - Kalapada Sarkar, Deputy Tehsildar, Rangat. (iv) PW-4 - Kushna Bachar relative of the parties. The defendant no. 1 has exhibited altogether nine documents namely; (i) Exhibit-A - Three electric bills. (ii) Exhibit-B - Receipt of PFL loan issued by Gram Panchayat dated 11.1.2001. (iii) Exhibit-C - Certified copy of order sheets of RC Case No. 1 of 2005. (iv) Exhibit-C1 - Legal notice dated 25.07.2005 issued by the plaintiff. (v) Exhibit-D - Water charge receipt issued by APWD. (vi) Exhibit-E - Record of Rights issued on 17.05.1984 (with objection). (vii) Exhibit-F - Copy of record of rights issued by Patwari, Circle No. 4 Rangat, (with objection). (viii) Exhibit-G - Record of authorisation (with objection). (ix) Exhibit-H - Certified copy of record of rights in respect of survey No. 20/4 (with Objection). 18. Mr. (vi) Exhibit-E - Record of Rights issued on 17.05.1984 (with objection). (vii) Exhibit-F - Copy of record of rights issued by Patwari, Circle No. 4 Rangat, (with objection). (viii) Exhibit-G - Record of authorisation (with objection). (ix) Exhibit-H - Certified copy of record of rights in respect of survey No. 20/4 (with Objection). 18. Mr. A.K. Mandal, learned advocate representing the appellant submits that the plaintiff has filed the suit for a declaration of title and recovery of Khas possession and mesne profits with respect to the suit property and the defendants while filing the written statement have admitted that the plaintiff is the recorded tenant of the suit property. But both the learned courts below have failed to appreciate the written statement filed by the defendants. 19. Mr. Mandal submits that, in paragraph (a),(d) and (e) of the written statement, the defendants have admitted the title of the plaintiff. Mr. Mandal submits that the defendant no. 1 had made out a case that the defendant no. 1 had spent lot of money for construction of the house in the suit property and subsequently the father of the plaintiff had sold the said property for a sum of Rs.5000/-and as such the defendant no. 1 is enjoying the said property without any interruption and exclusive possession and claims for adverse possession over the property but both the learned courts below failed to appreciate that in one hand the defendant has made out a case that the father of the plaintiff has allowed to reside in the suit property, on the other hand, the defendant no. 1 has made out a case that she has purchased the suit property by an oral agreement for a total sum of Rs.5000/-and as such, if the defendants have admitted with regard to the permissive possession, the court cannot hold that the defendants has acquired the property by adverse possession. 20. Mr. Mandal submits that when the plaintiff is admitted the fact of the title, the plaintiff need not to prove the same again but both the learned courts below failed to appreciate that the defendant no. 1 has not proved the case that the father of the plaintiff has received any amount from the defendant as sale consideration. 21. Mr. Mandal submits that the learned Trial Court has decided the issue nos. 1 has not proved the case that the father of the plaintiff has received any amount from the defendant as sale consideration. 21. Mr. Mandal submits that the learned Trial Court has decided the issue nos. 1 and 2 in favour of the plaintiff with regard to the maintainability and with regard to the cause of action. Mr. Mandal submits that the learned Trial Court while deciding the issue nos. 3 and 4 has wrongly come to the conclusion that the plaintiff has not produced cogent, sufficient and reliable documentary evidence to prove the right, title and interest over the suit property nor he produced any document to prove that when the suit property was alleged to have been given to the defendant no. 1 on permission, the predecessor-in-interest of the plaintiff was the exclusive owner of the same but the learned Trial Court failed to considered that in the written statement, the defendant herself have admitted with regard to the possession and the title of the plaintiff over the property. 22. Mr. Mandal submits that as the learned Trial Court decided the issue nos. 3 & 4 against the plaintiff and the learned Trial Court has not decided further the issue nos. 5 and 6 and wrongly dismissed the suit filed by the plaintiff instead of passing a decree for eviction of the defendants from the suit property. 23. Mr. Mandal submits further submits that the First Appellate Court had also not considered the pleadings and the evidences led by the appellant. He further submits that the learned Appellate Court has gone ahead further by holding that the defendant no. 1 is possessing the land since prior to the oral sale in May 1991 and the possession of the Sandhya Roy since after oral sale was open and hostile and it was not derivative in nature in recognition of title of the land owners. 24. Mr. Mandal submits that the learned First Appellate Court failed to appreciate that it is the specific case of the defendant no. 1 that the father of the plaintiff had allowed her to reside in the said premises and subsequently they have made out the case with regard to the sale and as such the finding of the learned Appellate Court that the defendant no. 1 that the father of the plaintiff had allowed her to reside in the said premises and subsequently they have made out the case with regard to the sale and as such the finding of the learned Appellate Court that the defendant no. 1 is in occupation of the property and acquired the title by adverse possession is perverse is liable to be set side. 25. Mr. Mandal further submits that as the Trial Court had dismissed the suit filed by the plaintiff on the ground of nonproduction of the documents with regard to title of the plaintiff over the suit property and accordingly before the First Appellate Court, the plaintiff has filed an application under Order 41 Rule 27 of the Code of Civil Procedure for production of documents to prove the title over the suit property but the First Appellate Court had also not considered the application filed by the appellant and had rejected the said application at the time of passing the impugned judgment and decree. 26. Mr. Mandal submits that the learned First Appellate Court ought to have allowed the application filed by the appellant under Order 41 Rule 27 so as to enable the appellant to adduce the additional documents at the appellate stage. Mr.Mandal prays for setting aside the judgment and decree passed by both the learned Courts below and prays for setting aside both the decrees and to pass decree directing the defendants to vacate the premises and to hand over the suit property of the appellant. 27. Per contra Mr. KMB Jayapal, learned advocate representing the respondents submits that the plaintiff has filed the suit for declaration of title, recovery of khas possession and mesne profits but in the prayer of the plaint, there is no prayer for declaration of right, title and interest of the plaintiff over the suit property and as such without any prayer, no court can grant any relief to the party concerned. 28. Mr. Jayapal further submits that the plaintiff has filed the suit against the defendants and the plaintiff has to prove her own and not from the evidence of the defendants. 28. Mr. Jayapal further submits that the plaintiff has filed the suit against the defendants and the plaintiff has to prove her own and not from the evidence of the defendants. He submit that in the present case, the plaintiff has failed to prove his title over the property by not adducing any evidence either oral or documentary evidence to prove that the plaintiff has acquired any right and title over the property and the learned both the courts below have passed the decree rightly by dismissing the suit filed by the plaintiff. 29. Mr. Jayapal further submits that the defendant has produced the documents with regard to the properties of the plaintiff and the defendant but the plaintiff, while exhibiting the documents, plaintiff has raised objection for exhibiting Exhibit-E, F, G and H out of Exhibit-E, F and H are the documents related to the suit property but the plaintiff has objected for the said documents not even objected but had also argued on merit for not taking into consideration of the said documents and accordingly, both the learned courts below have rightly not believed the documents as per the submission made by the counsel for the plaintiff. 30. Mr. Jayapal further submits that this appeal has been preferred against the concurrent findings of both the learned Courts below and as such this Court, in the second appeal, cannot re-appreciate the evidence unless and until this Court finds that the judgment passed by the Courts below are perverse or without any evidence. But in the present case, both the learned Courts below have passed the judgment by considering the pleadings, evidences and the documents and as such there is no scope in the present appeal to interfere with the concurrent findings of both the judgments passed by both the learned Courts below. 31. Mr. KMB Jayapal further submits that the appellant has filed an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional documents at the appellate stage, but the First Appellate Court has rightly rejected the application filed by the appellant as the appellant has not shown any reason why the said documents were not produced before the learned Trial Court, The appellant has not shown any reason that the said document could not be produced even after the due diligence. Mr. Mr. Jayapal submits that the learned Appellate Court has rightly rejected the application filed by the appellant under Order 41 Rule 27 of the Code of Civil Procedure and Mr. Jayapal prays for dismissal of the appeal with exemplary costs. 32. Heard the learned counsel for the respective parties. Persued the materials on record. 33. This appeal is admitted by formulating the following substantial questions of law: (i) When the defendant no. 1 admitted the title of the plaintiff’s husband in respect of the suit property and the defendant no. 1 failed to prove any valid transfer of the suit property in her favour by the plaintiff’s husband whether the lerned Courts below committed an error of law in dismissing the plaintiff’s suit for recovery of possession of the suit property? (ii) Whether in absence of any specific averment of adverse possession by the defendant no. 1 in her written statement the First Appellate Court was justified in dismissing the appeal holding that the defendant no. 1 acquired title in respect at suit property by way of adverse possession? 34. The appellant claims that the appellant is the recorded tenant of the land bearing survey no. 20/4 measuring an area of 0.19 hectares situated at Rampur village Rangat Tehsil, North and Middle Andaman. Out of which the defendants have occupied an area of 750 sq.mtrs along with two huts in the said property. 35. The plaintiff is the wife of Nityananda Roy and the defendant no. 1 Sandhya Roy is the younger sister of Nitiyananda Roy as such the husband of the plaintiff and the original defendant no. 1 are the brother and sister and Jagabandhu Roy was the father of Nityananda Roy (husband of the plaintiff) and Sandhya Roy (original defendant no. 1). 36. As per the case of the plaintiff, the husband of the plaintiff was the recorded tenant of the good number of plots of various types situated at Rampur village, Rangat Tehsil but the plaintiff has not given the description of either survey number or area of the said properties. But the plaintiff has only given the description in the survey no. 20/4 measuring an area of 1900 Sq.mtrs (0.19 hectares) situated at Rampur Village under Rangat Tehsil. But the plaintiff has only given the description in the survey no. 20/4 measuring an area of 1900 Sq.mtrs (0.19 hectares) situated at Rampur Village under Rangat Tehsil. Simultaneously, in the written statement, the defendants have stated in paragraph (d) as follows: “In the year 1990 the entire landed property was divided in two parts wherein survey nos.20/4, 23, 24, 158 has gone in the name of Shri Nityananda Roy and survey nos.20/2, 21/2, 22, 21/1(P), 157 has recorded in the name of Smt Sarati Roy (mother of the defendant no. 1) vide RC No. 63/90.” So, from the statement of the defendant in paragraph (d) of the written statement, it is admitted that the plaintiff is the recorded tenant of the land bearing survey no. 20/4 situated at Rampur Village under Rangat Tehsil. During the evidence, the defendant has produced the documents i.e. record of rights of holding register of Rampur village, Rangat Tehsil with respect to Survey Nos.20/2, 20/4, 21/1, 21/2,22, 23, 24, 157 and 158 issued by the Patwari Rangat which was exhibited as Exhibit-E (with objection) through DW-1, the defendant herself. The defendant had also produced Exhibit-F (with objection) i.e Record of Rights with respect of the land bearing Survey Nos.20/4, 23, 24, 158, 21/1/4 and Survey No. 5 situated at Rampur Village under Rangat Tehsil, North and Middle Andaman. 37. At the time of Exhibiting the aforesaid documents i.e Exhibhit E & F, the plaintiff has raised objection and accordingly, the learned Trial Court has marked the said documents with objection. But from the said documents, it reveals that all the survey numbers were jointly recorded in the name of Nityananda Roy and Sarathi Roy and Sarathi Roy is the mother of the defendant no. 1. From the Exhibit-F, it also reveals that the survey no. 20/4 measuring an area of 0.19 hectares was sub-divided in the name of Sukhoda Roy i.e. plaintiff. The plaintiff not only objected while exhibiting the said documents, though the said documents favoured the plaintiff, the counsel for the plaintiff has argued the matter before the learned Trial Court that in Exhibit-E, there is no seal of the concerned authority and the Exhibit-F is having only signature and Patwari but there is no certificate whether it is the certified copy or not. This Court failed to appreciate that why the plaintiff has objected the said documents though the said documents establishes that the aforesaid landed properties were jointly recorded in the name of Nityananda Roy and Sarathi Roy and subsequently the same was subdivided amongst Nityananda Roy and Sarathi Roy and after the sub-division, the learned bearing survey No. 20/4 measuring an area of 0.19 hectares recorded in the name of the plaintiff. 38. Now the question formulated by this Court while admitting the appeal, whether the learned Court below committed an error of law by dismissing the suit for recovery of possession of the suit when the defendant no. 1 admitted the title of the plaintiff’s husband in respect of the suit property and the defendant no. 1 failed to prove any transfer of the suit property in favour of the plaintiff’s husband. The learned Court below has dismissed the suit only on the ground that the plaintiff has not produced any documents to prove the case that the plaintiff is having title over the property but the learned Trial Court failed to consider the paragraph (d) of the written statement wherein the defendant admitted that the survey no. 20/4 which is the suit property was sub-divided in favour of the plaintiff. 39. The Trial Court while passing the impugned judgment and decree dated 21st October, 2011, though have recorded the submission of the learned advocate for the plaintiff has pointed out with regard to Exhibit -E & F but has not given any conclusion whether the said documents i.e. Exhibit E & F was taken as Exhibited documents or the learned court has not relied upon the said documents. If at the time of exhibiting the documents, if any party objected for exhibiting the same, the Court is having two options; either the said objection is to be decided then and there ; or, the said objection is to be decided at the time of final argument of the case. In the instant case, it is found that the learned Trial Judge while exhibiting the document recorded the objection raised by the plaintiff and the documents was exhibited with objection but at the time of final argument, the learned Trial Judge has not decided whether the said document has admitted or the said document was ignored. 40. In the instant case, it is found that the learned Trial Judge while exhibiting the document recorded the objection raised by the plaintiff and the documents was exhibited with objection but at the time of final argument, the learned Trial Judge has not decided whether the said document has admitted or the said document was ignored. 40. In view of the above, this Court is of the view that though the plaintiff has objected the Exhibit - E & F, but the learned Trial Court has not decided with regard to the admissibility of the said document, on the other hand, the defendant has admitted with regard to title of the plaintiff over the land bearing survey no. 20/4 measuring an area of 0.19 hectares situated at Rampur village under Rangat Tehsil and thus, the findings recorded by the learned Trial Judge is perverse and not sustainable and as such with regard to issue no. 3, learned Trial Court ought to have decided in favour of the plaintiff. 41. Now the second substantial question of law whether in absence of any averment of adverse possession by the defendant no. 1 in her written statement the First Appellate Court was justified in dismissing the appeal holding that the defendant no. 1 acquired title in respect at suit property by way of adverse possession. As per the case of the plaintiff, initially the plaintiff has given an area of 150 sq.mtrs along with two huts to the defendant for her residential purpose initially for a period of five years but even after completion of five years, when the plaintiff has requested the defendant to vacate the said land, the defendant failed to vacate the same and started claiming the land on the ground that the father of the plaintiff had sold the said land measuring an area of 1000 sq.mts for a total sum of Rs.5000/-. 42. The second ground of the plaintiff is that subsequently instead of vacating the said 150 sq.mtrs of land along with two huts, the defendant had again encroached an area of 600 sq.mts in addition to 150 sq.mtrs in survey no. 20/4 and thereafter the same was let out to the defendant no. 2. 43. The defendant has made the specific case in written statement in paragraph (b) (c) and (f), which reads as follows: “(b) That the defendant no. 20/4 and thereafter the same was let out to the defendant no. 2. 43. The defendant has made the specific case in written statement in paragraph (b) (c) and (f), which reads as follows: “(b) That the defendant no. 1 after completion of her studies joined education department as a Primary School Teacher in the 1979 and after few years married to Shri Ranjit Majhi and started living together at her husbands house, but unfortunately they could not remain a pair for a long time and in the year 1986 her husband Shri Ranjit Majhi expired and she has come back to her maternal house. The mother and the elder brother of the defendant no. 1 wanted to settle her and also wanted to see her living a happy life, therefore, they arranged and solemnised her second marriage with one Shri Ashis Sarkar. The second husband of the defendant no. 1 was an unemployed person and having no land or house of his own, therefore, the mother and the elder brother (Nityananda Roy) of the Defendant no. 1 allowed her to occupy 1000 sq.mtrs of land out of survey No. 20/4 for the purpose of construction of her residence, and she was also assured that on division of the entire landed property she will get her remaining entitled share being the legal heir of Shri Jagbandhu Roy. (c) That the defendant no. 1 with her second husband occupied the 100 sq.mtrs of land out of survey no. 20/4 by fencing, the area and planted fruit bearing trees and constructed at semi permanent house in the aforesaid land in the year 1989 and started residing there. (f) That as the defendant on.1 spent a lot of money in the development of land and construction of house and also that the she was residing thereon wither family, she expressed her inability to vacate the land but at the same time offered her brother to purchase the same to which he agreed and a deal was filed. Though the market rate of the land was much higher but her brother Shri Nityananda Roy agreed at the consideration amount of Rs.5000/-(Rupees five thousand only) and in the month of may 1991, the consideration amount of Rs.5000/-(Rupees five thousand only) was paid to Shri Nityananda Roy by the defendant no. Though the market rate of the land was much higher but her brother Shri Nityananda Roy agreed at the consideration amount of Rs.5000/-(Rupees five thousand only) and in the month of may 1991, the consideration amount of Rs.5000/-(Rupees five thousand only) was paid to Shri Nityananda Roy by the defendant no. 1 in presence of many nears and dears, who in return allowed her to posses and enjoy the same as her own land, thus from the aforesaid date upon the strength of the oral sale and defendant no. 1 is enjoying the open, hostile, uninterrupted and exclusive possession of the 1000 sq.mtrs of land out of survey no. 20/4.” 44. As per the case of the defendant no. 1, the father of the plaintiff had allowed her to occupy 1000 sq.mtrs in survey no. 20/4 and subsequently an oral agreement was entered into between the father of the plaintiff and the defendant for a total sale consideration of Rs.5000/-and accordingly, the said amount of Rs.5000/-was paid by the defendant to the husband of the plaintiff. 45. The defendant had issued legal notice to the plaintiff on 02.07.2005 (Exhibit-6), in the said notice there is no averment that the defendant no. 1 had purchased the suit property by oral agreement and the said fact is admitted during her cross-examination. 46. The defendant no. 1 has also admitted in her cross-examination that she has not issued any notice for registration of sale deed and she is also not paying any land revenue to the government. 47. It is also admitted by the defendant no. 1 that she is not in occupation of the property and she had let out the entire property to the defendant no. 2 and defendant no. 1 is collecting monthly rent. 48. In the schedule of property, the plaintiff has mentioned two schedule; out of which in schedule no. 1’, the plaintiff has claimed an area of 150 sq.mtrs in survey no. 20/4 and in schedule ‘2’, the plaintiff has claimed the total area of 750 sq.mtrs i.e including 600 sq.mts. 49. The defendant admitted that the defendant is in occupation of 1000 sq.mtrs but the plaintiff is stick in his case that the defendant is in occupation of 750 sq.tmrs. 20/4 and in schedule ‘2’, the plaintiff has claimed the total area of 750 sq.mtrs i.e including 600 sq.mts. 49. The defendant admitted that the defendant is in occupation of 1000 sq.mtrs but the plaintiff is stick in his case that the defendant is in occupation of 750 sq.tmrs. The learned Trial Court has not considered whether the defendant is taken two pleas; i.e. the father of the plaintiff has allowed to occupy 1000 Sq.mtrs for the purpose of construction of house; and, on the second plea that on verbal oral agreement, the defendant has purchased the said property for a total sum of Rs.5000/-. The defendant no. 1 failed to prove with regard to sale of suit property by way of oral agreement or payment of Rs.5000/-to the father of the plaintiff. The defendant has made out the case of oral agreement but had not file any suit or counter claim for specific performance of contract. 50. Being that position, this Court is of the view that the learned Trial Court failed to considered that the defendant had admitted that the defendant is in occupation of the property which is recorded in the name of the plaintiff and the defendant has not produced any documents that the defendant has acquired any right over the said portion of the said land to continue with the possession. 51. The learned Appellate Court has come to a finding that the defendant no. 1 acquired the title in respect of the suit property by way of adverse possession. The said finding of the learned First Appellate Court is perverse on two counts; i.e. firstly the specific case of the defendant is that the after of the plaintiff had allowed the defendant to occupy 1000 sq.mtrs which establishes that the defendant is in permissive possession of the property. Once it is the permissive possession of the property, it cannot be treated an adverse. Secondly, the defendant has made out a case that the defendant had agreed to purchase the said portion of the land for a total sum of Rs.5000/-and the said amount was paid to the father of the plaintiff. If the defendant has made the case that she has purchased the property for a total sum of Rs.5000/-, it cannot be said to be an adverse. If the defendant has made the case that she has purchased the property for a total sum of Rs.5000/-, it cannot be said to be an adverse. In view of the above, the findings of the learned First Appellate Court is perverse and is set aside. 52. It is true that, in the second appeal, this Court cannot re-appreciate the evidence unless and until it is perverse or without any evidence. In the present case, this Court find that the judgment passed by both the Courts below are perverse and as such this Court finds that the judgment passed by both the Courts below are liable to be set aside and accordingly, set aside. 53. The plaintiff is entitled to get the decree of eviction of the defendant from the suit property. Accordingly, the defendants are directed to vacate the suit property and to hand over the same to the plaintiff within a period of sixty days from date. 54. SA/7/2019 is allowed. Decree be drawn accordingly. 55. Let the lower courts record be returned back to the learned Court below. 56. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.