High Court · 2012

The trial court on the basis of the pleadings of the parties fra (cid:28)1. Whether there is cause of action for the 2. Whether the suit land was mortgaged by suit? plaintiff to the whether the defendant No. 1 purchased th defendant No. 1 for Rs. 200/- or e statement? land from the plaintiff as alleged in the written

3. Whether the defendant No. 1 can be treated as a trespasser of the s uit land?

4. Whether plaintiff is entitled to reclaim the land fro m the defendant?

5. Whether the defendant No. 1 acquired title the suit land by adverse possession?

6. Whether the defendant No. 1 is liable to be evicted from suit land a ejectmen whether plaintiff is entitled for a decree of s a trespasser and t?

7. To what relief/reliefs the parties are entitled? (cid:29) The trial court upon appreciation of the evidences on record dec 5. reed the suit of the plaintiff vide judgment dated 13.9.1996, against which the present appellant/defendant No. 1 preferred Title Appeal No. 1/1996 in the court of the learned Civil Judge, Darrang which was allowed by the judgment and decre e dated 22.12.1997 by setting aside the judgment and decree passed by the trial court and remanding the suit for deciding afresh giving reasonable opportunity t o both the parties to adduce evidences in support of the claim for right, title and interest over the suit land as the issue as to whether the plaintiff has rig ht, title and interest over the suit land has not been framed despite claiming d ecree in that respect. The trial court, therefore, pursuant to the judgment and decree passed by the first appellate court, framed the following additional iss ue for determination apart from the issues already framed: - (cid:28)Whether the right, title and interest of the suit land lies in fravour of the plaintiff or defendant? (cid:29)

6. The trial court after affording the opportunity of adducing evid ence to both the parties and upon appreciation of the same again decreed the sui t of the plaintiff vide judgment and decree dated 29.5.1998. The defendant No. 1 then preferred Title Appeal No. 15/1998 in the court of the learned Civil Judge , (Senior Division), Darrang at Mongoldoi, which has been dismissed vide judgmen t and decree dated 18.7.2000 by upholding the judgment and decree passed by the trial court. Hence the present appeal. The appeal was admitted for hearing vide order dated 12.3.2001 o

7. n the following substantial questions of law: - 1. Whether in a suit for redemption a decree for possession for can be passed wi thout the plaintiff’s title being pleaded and proved? 2. Whether the defendant’s possession on the suit land on the basis of an invali d sale becomes adverse possession and ripend to title after 12 years? 3. Whether the learned lower Court’s finding of the plaintiff’s title solely upo n Chitha entries and by assuming a defence case beyond the pleading is erroneous and perverse? I have heard Mr. BD Deka, learned counsel for the appellant. Non

8. e appeared for the respondent. 9. Referring to the substantial questions of law Nos. 1 and 3 it ha s been submitted by the learned counsel for the appellant that since the suit of the plaintiff was for redemption of mortgage without there being any pleading f or declaration of title and proof of the same, the learned courts below ought no t to have passed the decree declaring the right, title and interest of the plain tiffs. It has also been submitted that the suit being for a decree for redemptio n of mortgage, where the question of title is not an issue to be decided the mor tgage being of the interest in the property only, the larger relief in the form of declaration of right, title and interest could not have been granted by mould ing the relief under Order 7 Rule 7 of the CPC. The learned counsel submits that the courts below, therefore, ought not to have passed the decree declaring the right, title and interest of the plaintiff in the suit for redemption of mortgag e. The learned counsel in support of his contention has placed reliance on the d ecision of the Apex Court in Rajendra Tiwary vs. Basudeo Prasad and anr., report ed in AIR 2002 SC 136 and Gulabrao Balwantrao Shinde & ors. Chhabubai Balwantrao Shinde reported in AIR 2003 SC 160. Referring to Section 58 and 59 of the Transfer of Property Act i 10. t has also been submitted that since it is the case of the plaintiff that the va lue of the mortgage was Rs. 200/-, the plaintiff is not entitled to get the decr ee for redemption of mortgage by virtue of oral mortgage, as such mortgage is co mpulsorily registerable in view of the provision in Section 59 of the Transfer o f Property Act.

11. The learned counsel referring to the second substantial question of law formulated has submitted that the courts below are not correct in reject ing the plea of adverse possession by holding that the continuous possession of the defendant No. 1/appellant being on the basis of the mortgage and subsequentl y on the basis of the oral purchase of the land, such possession cannot be adver se, as the learned courts below have rejected the contention of the defendant ab out the oral purchase. Mr. Deka, learned counsel further submits that the oral purchase by the defendant being invalid in view of Section 54 of the TP Act, the entry of the defendant into the suit land and his possession pursuant to such o ral purchase is illegal and hence the possession of the defendant becomes advers e to the true owner. The learned counsel further submits that there being eviden ce on record that the defendant No. 1/appellant is in possession of the suit lan d for more than 15/16 years denouncing the title of the rightful owner i.e. plai ntiff, the defendant’s right over the land has ripen by right of adverse possess ion. The learned counsel in support of his contention has placed reliance on a d ecision of Karnataka High Court in Laxmibai vs. Thoreppa reported in AIR 1982 Ka rnataka 248.

12. I have considered the submission advanced by the learned counsel for the appellant and also perused the records including the judgments passed b y both the courts below. As noticed above, though the plaintiff initially prayed for rede 11. mption of mortgage, the pleadings in the plaint was amended by way of insertion of para 11 ’ka’, translated version of which is produced below: - (cid:28)The suit land was mortgaged by the plaintiff with the defendant No. 1 o n 12.4.1984 for Rs. 200/-. The said defendant was allowed to enjoy the benefit o f the land till the principal amount is returned. On 21.1.1988 the plaintiff for the last time went to defendant No. 1 for repayment of the said amount of Rs. 2 00/- but the defendant No. 1 neither accepted the same nor handed over the posse ssion of the land. Hence the possession of the defendant over the suit land beco mes illegal with effect from 20.1.1988 and therefore the defendant is liable for eviction (cid:29)

13. In the plaint it has been specifically pleaded that the suit lan d belongs to the plaintiff. The prayer portion of the plaint was also amended, t ranslated version of which is also reproduced below:- (cid:28)to pass a decree for redemption of mortgage and to hand over the posses sion of the suit land to the plaintiff. In the alternative if the plaintiff is f ound to be not entitled to a decree for redemption of mortgage, a decree declari ng the right, title and interest of the plaintiff may be passed along with the d ecree for khas possession by evicting the defendant. (cid:29)

14. In the written statement filed by the appellant/defendant No. 1 it has been admitted that the suit land belongs to the plaintiff, which was sold by the plaintiff in favour of the defendant No. 1, by oral transfer, at Rs. 562 .50 in the year 1978. The learned courts below having rejected to pass a decree for redemption of mortgage, in view of the aforesaid amendment of the pleadings as well as the prayer in the plaint and also the admission of the defendant in t he written statement that the land belongs to the plaintiff, has rightly passed the decree declaring the right, title and interest of the plaintiff in respect o f the suit land, by rejecting the contention of the appellant/defendant No. 1 th at he has acquired the title by right of oral transfer, as such transfer cannot confer any right in view of Section 54 of the TP Act. There being pleadings and also the prayer made apart from admission of the title by the defendant No. 1, t he substantial question of law Nos. 1 and 3, therefore, do not exist in the case . The question of moulding the relief under Order 7 Rule 7 CPC and granting of l arger relief, in view of the pleadings in the plaint as well as the prayer made does not arise in the case in hand and hence the decision cited by the learned c ounsel for the appellant in Rajendra Tiwary (supra) and Gulabrao Balwantrao Shin de (supra) where it has been held that the court cannot make out a new case and also cannot grant larger relief when smaller relief was sought for, are not disc ussed in detail.

15. This leads to the determination of the substantial question of l aw No. 2 relating to the claim of adverse possession by the appellant/defendant No. 1.

16. To succeed on the plea of adverse possession the person claiming title on that basis must show by clear and unequivocal terms that his possessio n was hostile to the real owner amounting to the denial of his title. Whether th e act alleged by a person constitutes adverse possession, regard must be had to the animus of the person which must be ascertained from the facts and circumstan ces of each case. Since such person is trying to defeat the right of the true ow ner, it is for him to clearly plead and establish all the facts necessary to est ablish the adverse possession. A person pleading adverse possession has no equit ies in his favour. Mere possession however long may be would not constitute adve rse possession so as to acquire the right over the property by prescription of l aw.

17. In the instant case the appellant/defendant No. 1 pleaded that h e came to possess the suit land in the year 1978 by virtue of the oral sale. Suc h oral sale, consideration amount being more than Rs. 100/-, is not valid in vie w of Section 54 of the Transfer of property Act. In the evidence adduced by the defendant No. 1, on whom the burden to establish the factum of adverse possessio n lies, except making the statement that he has been in possession of the suit l and for about 15 to 16 years no other overt act could be proved or established s o as to take away the title of the rightful owner over the property and acquisit ion of title by the defendant No. 1 by prescription of law. The decision cited b y the learned counsel for the appellant in the case of Laxmi Bai (supra) that as the oral transfer in the year 1978 being not recognized in law, the possession of the defendant No. 1 becomes adverse to the true owner with effect from the da te of making such oral transfer, is not applicable in the case in hand. In the s aid case it was found that houses were sold to the defendant at Rs. 200/-, which sale deed, however, was not registered. The execution of an unregistered deed o f sale and putting the defendant into the possession of the property thereafter were not in dispute in the said case. On the backdrop of such factual position i n the said case it was held that the possession by virtue of an unadmissible doc ument becomes adverse to the true owner.

18. The facts in the present case are completely different from the facts involved in the said case. As noticed above, the defendant No. 1 claimed o ral transfer in the year 1978 that too without specifying any date. The witnesse s of the defendant No. 1has also simply stated long possession of the defendant for 15 to 16 years without stating anything further. As already noticed above me re possession, however long may be, would not constitute adverse possession in t he absence of other overt acts denying the title of the rightful owner.

19. In view of the above, the possession of the defendant No. 1 cann ot be held to be perfected by adverse possession, more so when the oral transfer of the land and putting the defendant into possession has not been proved at al l. That apart, the plaintiff earlier instituted the suit being Title Suit No. 20 /1988 for declaration of right, title and interest and recovery of possession ag ainst the defendant which suit was subsequently withdrawn with liberty to file a fresh suit and accordingly the present suit was filed. The said suit was instit uted within 10 years from the date of the alleged oral transfer made in the year

19. the same is dismissed. No. cost. In view of the above, there is no merit in the appeal and hence

20. The Registry is directed to send down the records forthwith.