High Court
Case Details
RSA 24/2001 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the plaintiff is directed against the judgment an d decree dated 12th January, 2001 (decree drawn on 25th January, 2001) passed by the learned Civil Judge (Senior Division), Nalbari in Title Appeal No.9/2000 se tting aside the judgment and decree dated 1st September, 2000 passed by the lear ned Civil Judge (Junior Division) No.1, Nalbari in Title Suit No.66/1995, whereb y and whereunder the suit of the plaintiff was decreed. [2] The appellant as plaintiff instituted the aforesaid suit in the Court of the learned Civil Judge (Junior Division) No.1, Nalbari against the res pondent Nos.3, 4, 5 and 6 as main defendants and the predecessor-in-interest of the present respondent Nos.1(a) and 1(b), namely, Ramasis Shah, apart from the p resent respondent No.7 as well as against Smti Birchi Urang and 9(nine) others a s proforma defendants, praying for a decree for declaration of right, title and interest and recovery of khas possession in respect of the land measuring 1 Kath a in Dag No.168 covered by Kheraj Myadi Patta No.85 of village: Uttarpara under Mouza: Madhyam Baska, morefully described in the schedule to the plaint, contend ing inter alia that Smti Birchi Urang, the proforma defendant No.8, who was the owner and possessor of the said land transferred the same in favour of the plain tiff on 25th April, 1989 for valuation consideration of Rs.8000/-, by executing a registered deed of sale being No.504/89 (Exhibit-5) and handed over the posses sion. It has further been pleaded in the plaint that the main defendant Nos.1 t o 4 (present respondent Nos.3, 4, 5 and 6) in association with the proforma defe ndant Nos.5, 6 and 7 [predecessor-in-interest of the present respondent Nos.1(a) and 1(b) and present respondent No.7] instituted a proceeding in the Court of t he learned Executive Magistrate under Section 145 Cr.P.C. and taking advantage o f pendency of the said proceeding, they dispossessed the plaintiff from the suit land, which necessitated institution of the suit for declaration of right, titl e and interest and for recovery of khas possession. [3]
Legal Reasoning
The present respondent Nos.1 to 7 have filed their joint written statement contending inter alia that they were allowed to occupy the suit land by the father of Smti Birchi Urang, namely, Pannalal Urang in the year 1950 and since then, they are occupying the said land by constructing houses and by doing business thereon. The plea of handing over possession by Smti Birchi Urang in favour of the plaintiff and the subsequent dispossession of the defendants has b een denied. The defendants have set up the plea of adverse possession in the wr itten statement contending that they are possessing the suit land for more than 12(twelve) years openly and denying the title of the lawful owner and without re cognizing them. [4] med the following issues for determination:- The trial Court on the basis of the pleadings of the parties fra 1. 2. 3. Whether there is any cause of action for the suit? Whether the suit is bad for non-joinder of necessary party? Whether the suit is barred by limitation? 4. lal since 1950? Whether defdts have possession the S/L. under permission from Late Panna 5. Whether the suit land is adversely possessed by the defendants? 6. 7. 8. Whether plaintiff has any right title and interest over the S/L? Whether the plaintiff is entitled to decree as prayed for? Any other relief/reliefs the parties entitled? [5] The plaintiff/appellant in order to prove his case, examined 5(f ive) witnesses including the plaintiff himself and proved a number of documents including the sale deed dated 25th April, 1989 as Exhibit-5. The defendants in support of their pleadings in the written statement have examined 4(four) witnes ses and proved the certificate issued by the former President of the Gaon Pancha yat dated 3rd July, 1989, which has been marked as Exhibit-Ka, under objection. [6] The trial Court upon appreciation of the evidence on record has decreed the suit of the plaintiff by declaring that the plaintiff has acquired r ight, title and interest in respect of the suit land by virtue of the purchase v ide Exhibit-5 sale deed and the defendants being trespassers, the plaintiff is e ntitled to the decree for recovery of khas possession. The trial Court has rej ected the plea of adverse possession taken by the defendants in the written stat ement by holding that they could not prove the ingredients to constitute the adv erse possession. [7] Being aggrieved, the predecessor-in-interest of the present resp ondent Nos.1(a) and 1(b) and the present respondent Nos.2 to 7 filed Title Appea l No.9/2000 in the Court of the Civil Judge (Senior Division) No.1, Nalbari, whi ch has been allowed by judgment and decree dated 12th January, 2001 by setting a side the judgment and decree passed by the trial Court, thereby dismissing the s uit of the plaintiff with regard to the claim for the decree for recovery of kha s possession. The first appellate Court has set aside the decree for recovery o f khas possession passed by the trial Court on the ground that though the defend ants could not prove that they have acquired the title by right of adverse posse ssion, they being permissive occupier and have paid the rent initially to Pannal al Urang then to Smti Birchi Urang, they continued to be the permissive occupier under the transferee, namely, the plaintiff, and hence, no decree for recovery of khas possession can be passed. Hence, the present appeal. [8] The appeal was admitted for hearing vide order dated 26th April, 2002 on the following substantial question of law:- (cid:28)Whether the learned lower appellate court was justified in dismissing the suit of the appellant/plaintiff on the ground that as the respondent/defendant was a permissive occupant of the suit property under the vendor of the plaintiff/appel lant he was not liable to be evicted therefrom? (cid:29) [9] During pendency of the appeal, the respondent No.1, Ramasis Shah , expired and in his place, the respondent Nos.1(a) and 1(b), the legal heirs an d on whose right to sue survive, have been substituted.
Legal Reasoning
[10] nt and Mr. B. Kalita, learned senior counsel appearing for the respondents. I have heard Mr. N. Chakraborty, learned counsel for the appella [11] Mr. Chakraborty, learned counsel for the appellant referring to the pleadings of the defendants in the written statement and also the finding re corded by the first appellate Court against issue No.7 has submitted that since it is not the pleaded case of the defendants in the written statement that they are permissive occupier of the land on payment of rent, the first appellate Cour t ought not to have held the defendants as permissive occupier paying the rent t o the owner, more so, when it is the pleaded case of the defendants that they ar e possessing the suit land for more than 12(twelve) years denying the title of t he rightful owner, which plea, however, has been rejected by both the Courts bel ow. The learned counsel submits that since the evidence led by the defendants r elating to the payment of rent and permissive occupation has not been pleaded in the written statement filed, that part of the evidence could not have been take n into consideration by the first appellate Court, while deciding the issue No.7 . It has also been submitted that the defendants even could not prove the factu m of payment of rent and also that they are permissive occupier and that they ha ve attorn the plaintiff as the owner so as to disentitle the plaintiff from gett ing the decree for recovery of khas possession. [12] Per contra, Mr. Kalita, learned senior counsel submits that it i s evident from the deposition of witnesses examined by the defendants that the p redecessor-in-interest of Smti Birchi Urang, namely, Pannalal Urang, allowed the defendants to occupy the suit land, by virtue of which they came into possessio n of the suit land and continued to pay rent initially to Pannalal and thereafte r, on his death, to his daughter Birchi Urang. It has also been submitted that since the defendants are the permissive occupier of the land and continued to pa y the rent, the plaintiff is not entitled to a decree for recovery of khas posse ssion, in as much as, he would acquire that much of right over the property to w hich his vendor was entitled to. The learned senior counsel, therefore, submits that the first appellate Court has rightly set aside the decree for recovery of khas possession as passed by the trial Court. [13] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the records including the judgments passed by both the Courts below, apart from the evidence adduced by the parties , since the decree passed by the trial Court has been set aside by the first app ellate Court. Both the Courts below have decreed the suit of the plaintiff wit [14] h regard to the declaration of right, title and interest. The defendants have n ot challenged the decision of both the Courts below against issue No.6, namely, whether the plaintiff has any right, title and interest over the suit land? Tha t being the position, the decision on the said issue need not be gone into in th e second appeal, which is also not the substantial question of law formulated. The issue No.5 relating to acquisition of title by the defendants by prescriptio n of law, i.e. by adverse possession, has also been decided by both the Courts b elow against the defendants. The finding recorded in the said issue having not been challenged by the defendants, also need not be gone into in the second appe al. Though the trial Court has decreed the suit of the plaintiff for recovery o f khas possession also, the same, however, has been negated by the first appella te Court while deciding the issue No.7, i.e. whether the plaintiff is entitled t o decree as prayed for? As noticed above, the decree for recovery of khas posse ssion has been set aside by the first appellate Court on the ground that the def endants were the permissive occupier initially under Pannalal Urang and then und er Birchi Urang, who used to pay the rent to the owner. [15] The defendants in the written statement though have pleaded that Pannalal Urang had allowed them to occupy the land, there is even not a whisper relating to the payment of any rent. The defendants’ witnesses, except DW-3, i n their deposition have not claimed the payment of any rent by them either to Pa nnalal Urang or to Birchi Urang. The deposition of DW-3 relating to payment of rent initially to Pannalal Urang and thereafter, to Birchi Urang has not been su pported by any of the witnesses examined by the defendants and hence, such versi on of the defendant No.3 cannot be accepted. The defendants in their evidence h ave also stated that Pannalal Urang expired 10/11 years before their date of dep osition. In the written statement filed they have taken a specific plea of adve rse possession stating that they are possessing the land for more than 12(twelve ) years by constructing houses and without recognizing the title of the rightful owner. The said plea contradicts the version of the DW-3 relating to the payme nt of rent. The said plea taken in the written statement also contradicts the d efendants’ version of permissive occupation. The defendants, therefore, cannot held to be the permissive occupier, which is the ground for setting aside the de cree passed by the trial Court for recovery of khas possession. As noticed abo ve, the plea taken by the defendants relating to the adverse possession has been negated by both the Courts below. [16] In view of the aforesaid discussion, I am of the view that the j udgment and decree passed by the first appellate Court in relation to setting as ide the decree passed by the trial Court for recovery of khas possession needs t o be set aside, which I accordingly do. [17] rected to bear their own costs throughout. The appeal is accordingly allowed. The parties, however, are di [18] The Registry is directed to send down the records.