High Court
Case Details
RSA 51/1999 BEFORE HON’BLE MR. JUSTICE A .K. GOSWAMI This second appeal is directed against the judgment and decree dated 30.11.1998 passed by the learned Civil Judge (Senior Division), Darrang, Mangaldoi, in T.A. No. 23/97 modifying the judgment dated 26.09.1997 passed by the learned Civil J udge (Junior Division), Darrang, Mangaldoi in T.S. No. 4/94. The respondent/Defe ndant No. 1 has filed a cross objection. 2. The case set up in the plaint is that in Periodic Patta No. 42/42 of vil lage- Narikali under Lokrai Mouza, there were two dags: Dag No. 90, which is now numbered as Dag No. 114 and Dag No. 62, which is now numbered as 107. In Dag No . 62 (107), there were 3K 3L of land and in Dag No. 90 (114), there was 7B 4K 6L of land. Land in both these dags were owned by one Tanu. His mother, Puni, surv ived him and on the death of Tanu, name of Puni was mutated in the patta. Puni s old 1B of land to Hari Prasad and 2B to Kerkon Nath. The said land formed part of Dag No. 90 (114). Puni also gifted 4B 4K 6L of land to one Rupnath Saharia. T he land belonging to Kerkon Nath was purchased by Diparu Nath and accordingly, h is name was also mutated in respect of 2B of land. Father of the plaintiff, Kala ram Koch, purchased 3K 3L of land of Dag No. 62 (107) from Puni by oral agreemen t and 4B 4K 6L from Rupnath Saharia in Dag No. 90 (114) and accordingly, his nam e was mutated in the patta in the year 1950. On 02.07.1991, the Defendant No. 1 forcibly occupied 2K 17L of land covered by Dag No. 62 (107) (Schedule-A of the plaint), which prompted him to file a proceeding under section 145 Cr.P.C. and i n such proceeding, the learned Magistrate illegally declared possession in favou r of the Defendant No. 1. The Defendant No. 1 also, in collusion with Revenue Au thorities obtained mutation in respect of 1B 2K 5L only of Schedule-B land measu ring 2B 2K 17L in Dag No. 90 (114). In the plaint originally filed, the schedule of the land was shown as 1B out of 2B 2K 17L and mutation was stated to be gran ted in respect of 1B land. The plaint was amended and Schedule-B was changed to 2B 2K 17L. Plaint was also amended stating that mutation was granted in respect of 1B 2K 5L of land. 3. In the suit, the following prayers were made: (cid:28)(a) That the suit of the plaintiff be decreed with cost. (b) That a declaratory decree be passed that the plaintiff has got right, tit le and interest of the schedule ’A’ and ’B’ land.
Facts
(c) That the main defendant be ejected from the suit land (Schedule ’A’ + ’B’) land be demolishing his houses, structures, fences whatsoever existing and the v acant possession thereof be delivered to the plaintiff. (d) That a permanent injunction be issued restraining the defendant, his agents , relatives, servants and workmen from entering and or dispossessing the plainti ff from the schedule land. (e) That a declaratory decree be passed that the mutation in the name of the de fendant No. 1 in schedule ’B’ land is illegal, void, inoperative in law and thus liable to be set aside. (f) That no relief is sought against the proforma defendant but if they file wr itten statement against the plaintiff they may be treated as main defendant. (g) To what relief, if any, the plaintiff is entitled to? SCHEDULE-A Land measuring 2K-17Ls covered by Dag No. 107 of periodic patta No. 155 of villa ge-Narikali, Mouza-Lokrai, bounded by:- East:- (Nonoi) Mathauri, West:- Nonoi river, North:- Tapeswar Barua, South:- Amb ika Nath. (cid:29) SCHEDULE-B Land measuring 2B-2K-17Ls covered by Dag No. 114 of periodic patta No. 155 of vi llage-Narikali, Mouza-Lokrai, bounded by North:-Tapeswar Barua, South:-Tapeswar, Haricharan Nath East:-Tapeswar, West:-Ma thauri. Thus, the plaintiff prayed for right, title and interest in land measuri ng 2K 17L covered by Dag No.62 (107) and 2B 2K 17L in Dag No. 90 (114). 4. In the written statement, defendant No. 1 stated that Schedule-A is not a periodic patta land but is Government land, which is in occupation of the defe ndant for last 15 years or so. The boundary of Schedule-A land is not correct an d the said boundary covers land of Hari Prasad and Diparu as well. It is stated that Schedule-B land belonged to father of the plaintiff, Kalaram Baruah and 1B of the Schedule-B land was sold by the father of the plaintiff to one Sanibor Na th on 11.04.1977 by a registered deed and on 31.08.1978, Sanibor Nath, by regist ered deed, sold the said plot of land to the Defendant No. 1 and delivered posse ssion thereof. There was a slight discrepancy in the Schedule of the land sold t o Sanibor Nath in that in the south, instead of Diparu, it should have been ment ioned as Hariprasad. Sanibor Nath had transferred the land which was purchased b y him from the father of the plaintiff but there was some mistake in number of t he Dag. Defendant No. 1 had lent Rs. 1,500/- to the father of the plaintiff in the year 1978 and being unable to repay the amount, the father of plaintiff sold the Schedule-B land to Defendant No. 1 by making endorsement in the concerning Chitha, instead of a sale deed, though requested by the Defendant No. 1. 1B 2K 5 L of Dag No. 90 (114) which is transferred by the plaintiff is to the east of t he land purchased by Defendant No. 1 from Sanibor Nath and thus the Defendant No . 1 became the owner and possessor of 2B 2K 5L of land. Mutation order was pass ed on 13.03.1987, though he was in possession from 1978. The Defendant No. 1 ha d raised many constructions in the said plot of land-a full wall pucca house in 1978/1979 in the northern side, another pucca house on the western side of Sched ule-B land, a tin-roofed house in the southern side, etc. by spending about 2 (t wo) lakhs. In the additional written statement filed, it was stated that plainti ff had endorsed his note with signature in the concerned Chitha which was duly r ecorded and the mutation order was passed with the consent of the plaintiff hims elf. It is further stated that the plaintiff had not challenged a memorandum wit h regard to Scheduled-B land, ordered at the instance of the learned trial Court . 5. earned trial Court: (cid:28)Whether there is cause of action to instilate the suit? 1) Whether the suit is maintainable in its present form? 2) Whether suit is bad for non-joinder of necessary parties? 3) Whether schedule ’A’ land is a Sarkari land or periodic patta land? 4) 5) Whether plaintiff’s father Kolaram Baruah sold 1B of land to Sanibar Nat h and whether Sanibar Nath sold the land so purchased to defendant Khasnur Ali a s alleged in para 12(II) of the W/S? 6) a 12 (VI) of the W/S and whether the defendants name was mutated on 13/3/87. 7) Whether the defendant has been possessing the schedule ’B’ land since 19 78-79 continuously against the interest of the plaintiff and whether he construc ted pacca house, bathroom etc. As alleged in para 12 (VIII) IX and X of the W/S and whether he spent about Rs. 2 Lakhs in constructing these houses and other st ructure etc. On the suit land? 8) nd? 9) Whether the plaintiff has got right, title and interest over the suit la On the basis of the pleadings, the following issues were framed by the l Whether plaintiff sold 1B 2K 5Ls land from Dag No. 114 as alleged in par To what relief, if any, are parties entitled? (cid:29) 6. Subsequently one more additional issue was framed, which is as under: (cid:28)Additional issue 1. Whether the Defendant No. 1 without knowledge of the plaintiff collusive ly with revenue authority got his name mutated in respect of 1B-2K-5 Lessas of l and out of schedule land? (cid:29) 7. During trial, plaintiff examined 4 (four) witnesses and the Defendant No . 1 also examined 7 (seven) witnesses. Both the parties had also exhibited a nu mber of documents. 8. The learned Trial Court, in issue No.4, recorded the finding that pre-po nderance of evidence goes to show that Schedule-A land is a periodic patta land. While deciding issue No.5, the learned Court held that Ext. ’Unga’ having not been proved in accordance with law as laid down under Section 67 of the Indian E vidence Act, no right, title and ownership could have been conferred on the basi s thereof upon Sanibor Nath by sale deed No. 2543 dated 04.02.1978 in respect of 1B of land out of Schedule-B land and consequently, defendant No. 1 also acquir ed no right over the said plot of land by virtue of Ext. ’Gha’. While dealing w ith issue No.6, the learned Trial Court took note of the fact that Defendant No. 1 had admitted that no registered sale deed was made by the plaintiff in respec t of 1B 2K 5L of land under Dag No.90 (114), forming part of Schedule-B land. T he learned Trial Court held that though Chitha mutation Ext. ’Ka’ was executed b y the plaintiff, the same cannot transfer a valid title upon the Defendant No. 1 . The plea of adverse possession was negatived in issue No.7 by holding that on the face of plea of the Defendant No. 1 that he had been possessing the suit la nd by virtue of purchase, he cannot set up a plea of adverse possession. The lea rned trial Court decided issue No.8 regarding plaintiff’s right, title and inter est over the suit land on the premise that it was an admitted position that plai ntiff’s father was the owner of the suit land and as Defendant No. 1 failed to p rove that he purchased land from the father of the plaintiff, therefore, plainti ff has got right, title and interest over the suit land. The learned trial Court was wrong in opining that it was an admitted fact that the father of the plaint iff was the owner of the suit land. The suit land comprises of two schedules: Sc hedule-A and Schedule-B. So far as Schedule- B is concerned, in paragraph 22 (ii ), the defendant admitted that Schedule-B land belonged to father of the plainti ff. But there was no such admission with regard to Schedule-A land. The Addition al Issue No.1 was also decided in favour of the plaintiff and thus the trial Cou rt decreed the suit, declaring right, title and interest over the suit land with a direction to the Defendant No. 1 to vacate possession over the suit land in f avour of the plaintiff within 6 (six) months from the date of delivery of judgme nt failing which decree could be executed in accordance with law. 9. The learned lower Appellate Court recorded a finding that there is no ev idence on record that Schedule-A land is a Sarkari land and on the contrary, the evidence on record shows that both Schedule-A and Schedule-B are periodic patta land since the days of late Tanu Koch. The Appellate Court had discounted the purported purchase by the father of the plaintiff Kalaram Baruah alias Kalaram K och as the purchase was made by Chitha entry and not by execution of sale deed i n his favour. Having held so, the learned Appellate Court opined that (cid:28)such voi d transfer of ownership of land and delivery possession puts the transferee in p ossession with clear animus on distinct understanding that from that time onwar ds the transferor has no right or title to the property and the transferee adve rsely possesses the property from the date of such illegal transfer (cid:29), and as Kal aram was in possession for more than 12 (twelve) years by way of adverse possess ion, he acquired title of ownership in respect of the suit land by way of advers e possession and plaintiff, by right of inheritance, except an area of 1B of lan d in Schedule-B sold to Sanibor Nath by his father Kalaram. 10. The learned lower Appellate Court also held that the Defendant No. 1 fai led to prove sale of land by the father of the plaintiff to Sanibor Nath by Ext. ’Unga’ and correspondingly by Sanibor Nath to the Defendant No. 1 vide Ext. ’Gh a’. However, as Ext. ’Ka’ (1) in the Chitha showed that name of the Defendant No . 1 was mutated in respect of 1B of land out of Schedule-B land on the strength of purchase from Sanibor Nath and as Defendant No. 1 was possessing the land com prised in Dag No. 90 (114) for more than 15 (fifteen) years from 31.08.1978, Def endant No. 1 had acquired title by way of adverse possession. It is further held that in respect of 1B 2K 5L of land in Dag No. 90 (114), Ext ’Kha’, a certified copy of Jamabandi, showed that name of Defendant No. 1 was mutated on 13.03.199 7 and the period being only 7 (seven) years till the date of institution of the suit, Defendant No. 1 did not acquire any title by way of adverse possession in respect of the said plot of land. Accordingly, the decree of the learned title Court was modified to the e 11. xtent that the Defendant No. 1 had title in respect of land measuring 1B bounded by Topeswar Nath in the north, Ram Avatar in the south, plaintiff in the east a nd mathauri in the west. 12. This second appeal was admitted to be heard on 28.09.1999 on the substan tial question of law as to whether the Lower Appellate Court erred in law in com ing to a finding without any pleading and issue as regards adverse possession. 13.
Legal Reasoning
(cid:28)17. It is settled law that mere possession, even if it is true, for any number of years will not clothe a person in enjoyment of the property with the title b y adverse possession. Adverse possession, in a sense, is based on the presumptio n that the owner has abandoned the property to the adverse possessor on the acqu iescence of the owner to the hostile acts and claims of the person in possession . Plea of adverse possession is not a pure question of law, but a blended one of fact and law. A person who claims adverse possession must show: (a) on what dat e he came into possession, (b) what was the nature of possession, (c) whether th e factum of possession was known to the other party, (d) how long has his posses sion continued, and (e) his possession was open and undisturbed. In order to su cceed a person pleading adverse possession must clearly plead and establish all facts necessary to establish his adverse possession. In terms of Article 65 of t he Limitation Act, 1963, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession becomes adverse. Therefore, there must be i ntention to dispossess. Animus possidendi is one of the ingredients of adverse p ossession. A peaceful, open and continuous possession as engraved in the maxim n ec vi, nec clam, nec precario is necessary to constitute adverse possession. (cid:29) 21. The reliance placed by the learned appellate court in Achal Reddi -Vs- R amakrishna Raddiar and Others, reported in AIR 1990 SC 553, on the basis of whic h the learned lower appellate court passed the impugned judgment applying the la w of adverse possession is not attracted in the facts and circumstances of the c ase. In Achal Reddi (supra) the Apex Court had laid down that in case of agreem ent of sale, the party who obtained possession acknowledges title of the vendor even though agreement of sale may be invalid. It is an acknowledgement and recog nition of the title of the vendor which excludes the theory of adverse possessio n. It was also held that position is different in a case where in pursuance of a n oral transfer or a transfer not registered, the owner of the property transfer s the property and puts the transferee in possession with the clear animus on th e distinct understanding that from that time onwards he shall have no right or t itle to the property. The Apex Court also laid down that such proposition is to be applied where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. In the instant, case neither the plaint nor the written statement was structured so as to warrant invocation of the principle laid down in Achal Reddi (supra). To reiterate, there is no pleadi ng whatsoever regarding adverse possession, both by the plaintiff and by the Def endant No. 1. 22. The reliance placed by Mr. Chouhan in Manindra Kumar (supra) has no appl ication to the facts of the case as the ratio laid down in the said case is that objection to mode of proof put forward must be taken at trial before the docume nt is marked as an Exhibit and admitted into record. 23. In Karnataka Board of Wakf -Vs- Government of India and Others, reported in (2004) 10 SCC 779, the Apex Court stated as follows:- (cid:28)12. A plaintiff, filing a title suit should be very clear about the origin of t itle over the property. He must specifically plead it. In P. Periasami v. P. Per iathambi this Court ruled that: (cid:28)Whenever the plea of adverse possession is projected, inherent in the plea is t hat someone else was the owner of the property.’ The pleas on title and adverse possession are mutually inconsistent and the latt er does not begin to operate until the former is renounced. Dealing with Mohan L al v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (cid:28)4. As regards the first plea, it is inconsistent with the second plea. Having c ome into possession under the agreement, he must disclaim his right thereunder a nd plead and prove assertion of his independent hostile adverse possession to th e knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec cla m, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of la nd lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appe llant. (cid:29) 24. As was indicated earlier, while the learned trial Court had granted a de cree on the suit land on the basis of admission, the appellate Court had granted a decree on the basis of adverse possession. In view of the discussions above, this Court holds that the plaintiff will be entitled to a declaration of right, title and interest in respect of Schedule-B land and the Defendant No. 1 shall b e liable to be ejected from Schedule-B land. The mutation order in favour of Def endant No. 1 in Schedule-B land is also declared to be illegal and void. It is also held that the plaintiff has failed to prove right, title and interest in Sc
Arguments
Heard Mr. S Chouhan, learned counsel for the appellant. Also heard Mr. T Islam, learned counsel for the respondent. I have also perused the materials on record. Learned counsel for the appellant submits that in view of the findings r 14. ecorded by the learned trial Court in issue No. 7, which is not interfered with by the learned lower Appellate Court, the modification of the impugned appellate judgment to the extent of grant of decree of 1B in favour of the Defendant No. 1, is not sustainable in law. 15. He also submits that the learned Court below had recorded concurrent fin ding of fact that Schedule-A land is periodic patta land and that the Defendant No. 1 could not prove purchase of land measuring 1B from Sanibor Nath and land m easuring 1B 2K 5L from the father of the plaintiff. It is argued by him that whe n the specific case of the Defendant No. 1 was based on transfer of land from Sa nibor Nath and the father of the plaintiff, the learned lower Appellate Court co mmitted grave error of law in passing the judgment holding that Defendant No. 1 acquired title in respect of 1B land by way of adverse possession. It is also pl eaded by him that in addition to that, there is also no pleading by Defendant No . 1 claiming adverse possession and no issues were also framed. It is also submi tted by him that in his written statement, Defendant No. 1 had admitted that the father of the plaintiff had right, title and interest in the Schedule-B land an d therefore, no further proof was required. 16. The learned counsel, in respect of his submissions, places reliance on t he following judgments: (i) Nagindas Ramdas -Vs- Dalpatram Ichharam alias Brijra m and Others, reported in AIR 1974 SC 471 (ii) RSA 138 2002 decided on 01.02.201 3 (Mumtaz Begum and 2 Others -Vs- Md. Mazaharul Hoque @ Mukul) (iii) Manindra K umar Dey and Others -Vs- Mahendra Suklabaidya and Others, reported in 1999 (1) G LT 30 and (iv) Narendra Kumar -Vs- Vishnu Kumar Nayyar, reported in AIR 1994 De lhi 209 . Mr. T Islam, learned counsel for the respondent/Defendant No.1 submits 17. that though there was an admission by the Defendant No. 1 in the written stateme nt to the effect that Schedule-B land originally belonged to the father of the p laintiff, notwithstanding the same, it was incumbent on the plaintiff to prove t hat he was still the owner of Scheduled-B land in view of the averments made in the written statement that there had been transfers of land comprised in Schedul e-B land and this burden the plaintiff failed to discharge. It is submitted by h im that the plaintiff had only brought into evidence documents pertaining to rec ord of rights, which cannot be the only basis for establishing right, title and interest. As the plaintiff is to prove his case and as the plaintiff had failed to prove his right, title and interest in the suit property, judgment of the lea rned courts below cannot be sustained in law. It is further submitted by him tha t plaintiff was also granted decree by the learned lower appellate court below o n the basis of adverse possession, though not pleaded and therefore, the substan tial question of law formulated at the instance of the appellant is also squarel y applicable to him. According to him, if it is held that the judgment and decre e of the learned lower appellate court is bad inasmuch as title of ownership was declared in favour of Defendant No. 1 by adverse possession, the cross-objectio n is also liable to be allowed as the decree of the learned lower appellate cour t below was also on the basis of adverse possession, which was not pleaded by th e plaintiff. In support of his submissions, learned counsel places reliances on the following judgments: (i) Ambika Prasad Thakur and Others -Vs- Ram Ekbal Rail (dead) by his legal representatives and Others, reported in AIR 1966 SC 605, (i i) Balwant Singh and Another -Vs- Daulat Singh (dead) by his legal representativ es and Others, reported in AIR 1997 SC 2719, (iii) State of Himachal Pradesh -Vs - Keshav Ram and Others, reported in AIR 1997 SC 2181 (iv) Hindustan Steel Limit ed Rourkela -Vs- Smti Kalyani Banerjee & Others, reported in AIR 1973 SC 408 an d (v) Punjab Urban Planning & Development Authority -Vs- Shiv Saraswati Iron and Steel Re-Rolling Mills , reported in (1998) 4 SCC 539. 18. In Nagindas (supra) the Apex Court had said that admission, if true and clear, is by far the best proof of the facts admitted and they by themselves ca n be made the foundation of the rights of the parties. It has also been held tha t admission in pleadings stands on a higher footing than evidentiary admission a nd the former class of admission is fully binding on the parties that make them and constitute a waiver of proof. The admission by themselves can be made the fo undation of the rights of the parties and on the other hand, evidentiary admissi on can be shown to be wrong. In Narendra Kumar (supra) the Delhi High Court reit erated the proposition that facts which are admitted need not be proved. It is n o doubt true as held in Shiv Saraswati (supra) that the plaintiff must succeed o r fail on his own case and cannot take advantage or weakness in the defendant’s case to get a decree. Admission and weakness are two different things and operat e at different fields. I am unable to accept the submission of Mr. Islam that i nspite of aforesaid admission in the written statement, it was necessary for the plaintiff to prove his right, title and interest by tendering into evidence doc uments of title. In Ambika Prasad (supra) on which Mr. Islam, in the context of admission, relies, is not applicable in the facts and circumstances of this case as the Apex Court had said that admission in that case was made under some susp icious circumstances at the end of the trial of the case when the argument had b egun, by way of a petition and without amending the written statement, and thus such admission had weak evidentiary value. The specific case of the Defendant No . 1 was transfer by way of sale from the Schedule-B land by the father of the pl aintiff as well by the plaintiff himself. Both the Courts below have concurrentl y held that Defendant No. 1 had failed to prove the sale of land in accordance w ith law. It was a burden which the defendant had to discharge. 19. In Hindustan Steel Ltd., (supra) the Apex Court has laid down that proce edings for mutation of names are not judicial proceedings and they are in the na ture of fiscal inquiries instituted in the interest of the State and that mutati on proceedings cannot be treated as a conclusive evidence of propriety right. I t has also been held that an entry in the revenue extract may, prima facie, be g ood evidence of possession and even of the right to hold the land but in law i t is not conclusive. In Keshav Ram (supra), the Apex Court had reiterated that a n entry in the revenue papers by no stress of imagination can form the basis for declaration of title. Similar view has been taken in Balwant Singh (supra) and it has been held that mutation in the revenue record neither creates nor extingu ishes title nor has it any presumptive value on title and that it only enables t he person in whose favour mutation is ordered to pay the land revenue in questio n. 20. In respect of Schedule-A land the plaintiff had relied on Ext.5, a certi fied copy of Jamabandi. Similarly, in respect of 1B 2K 5L of land, Defendant No. 1 relied on Ext. Kha, which is also a certified copy of Jamabandi. In view of t he law laid down by Apex Court, no title can flow on the basis of such revenue r ecord. In Mumtaz Begum (supra), this court had held that plea of title on the ba sis of a un-registered sale deed and adverse possession are mutually inconsisten t. Neither the plaintiff nor the Defendant No. 1 had pleaded adverse possession. However, the learned appellate court decreed the suit on the basis of adverse p ossession except 1B of land in Schedule-B land, on which also title was conferre d on Defendant No. 1 on the basis of adverse possession. In Mumtaz Begum (supra) , this court stated as follows:
Decision
hedule-A land. 25. The second appeal and the cross objection are accordingly disposed of mo difying the decree of the learned appellate court in terms of the above. No cost s. 26. Send back the lower Court records.