High Court
Case Details
RSA 87/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral)
Legal Reasoning
This appeal by the defendants is directed against the judgment and decree dated 25th February, 2003 passed by the learned Additional District Judge (Ad-hoc), Ka rimganj in Title Appeal No.37/2002, whereby and whereunder the appeal preferred by the present appellants has been dismissed by affirming the judgment and decre e dated 13th May, 2002 passed by the learned Civil Judge (Junior Division) No.1, Karimganj, whereby the suit of the present respondent/plaintiff has been decree d. [2] The respondent as plaintiff instituted the aforesaid suit prayin g for a decree declaring his right, title and interest over the suit land descri bed in Schedule to the plaint and also for recovery of khas possession by evicti ng the appellants therefrom contending inter alia that she is the absolute owner of the land measuring 2‰ Jasti covered by Dag No.3358 of Khatian No.1989 of War d No.9 of Karimganj Town over which the katcha house containing two rooms is sta nding. It has further been contended that the plaintiff, as per the request of the defendant No.1, allowed both the defendants to reside with the family in one of the two rooms of the suit premises until construction of their house at anot her place. According to the plaintiff, despite the request made since the defen dants did not vacate the suit premises, they have to file the suit praying for t he relief, as noticed above. [3] The defendants contested the suit contending inter alia that abo ut 17(seventeen) years ago they found the land vacant and, thereafter, took poss ession and since then they have been residing there having constructed the house thereon. The defendants have pleaded the adverse possession. [4] Based on the pleadings of the parties, the following issues were framed for determination:- (cid:28)1. Is there any cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the plaintiff is entitled to get a decree as prayed for? (cid:29) [5] Though no issue relating to the adverse possession was specifica lly framed, the parties lead evidence on the question of adverse possession and accordingly, the same was decided by both the Courts below. [6] The trial Court, based on the evidence on record as adduced by t he parties, decreed the suit of the plaintiff by declaring right, title and inte rest of the plaintiff and also for recovery of khas possession, rejecting the co ntention of the defendants that they have acquired title by adverse possession, by holding that they could not prove the ingredients to constitute adverse posse ssion. Being aggrieved, the defendants preferred the appeal, which was [7] dismissed by concurring the finding recorded by the trial Court. Hence, the pre sent appeal. [8] 2003 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 25th June, (cid:28)Whether the learned Court below committed an error of judgment in coming to the decision that in view of absence of documentary evidence as well as oral eviden ce that there is no proof of case of adverse possession as claimed by the presen t appellant-defendant? (cid:29)
Legal Reasoning
[9] Mr. N. Dhar, learned counsel appearing for the respondent. I have heard Mr. P. Sen, learned counsel for the appellants and [10] Mr. Sen, learned counsel for the appellants submits that since t he appellants are admittedly in possession of the suit land for more than 12(twe lve) years continuously, the Courts below ought not to have decreed the suit of the plaintiff, as the defendants have perfected their title over the property by adverse possession. The learned counsel submits that the Courts below, based o n the evidence adduced by the parties, therefore, ought to have dismissed the su it of the plaintiff, as the defendants have acquired title by prescription of la w. [11] On the other hand, the learned counsel appearing for the respond ent referring to the judgments and decrees passed by both the Courts below has s ubmitted that a concurrent finding of fact has been recorded by both the Courts below and though the defendants have pleaded adverse possession, they could not prove the ingredients of adverse possession, which finding, unless of course the perversity in recording such finding is demonstrated, cannot be disturbed in a second appeal, more so when the defendants could not demonstrate the perversity in recording such finding. [12] It appears from the judgment passed by the appellate Court that the evidences adduced by the parties have been discussed. The plaintiff by prov ing the two sale deeds being Exhibit-1 and Exhibit-3 could prove that she has acquired right, title and interest over the suit land by purchase. Vide Exhibit -1 sale deed, the original owner sold the suit land in favour of Maniklal Mandal on 28th November, 1977, who in turn on 10th November, 1997 vide Exhibit-3 sale deed sold the suit land in favour of the plaintiff. Both the sale deeds are reg istered instruments. The plaintiff also by adducing cogent evidence could prove that she, as per the request of the defendant No.1, allowed both the defendants to occupy one of the two rooms over the suit land with condition that they will vacate the suit premises as and when asked to do so. Such finding of fact canno t be disturbed in second appeal, when no perversity in recording such finding ha s been demonstrated. [13] As noticed above, the suit of the plaintiff has been resisted by the defendants by taking the plea of adverse possession and hence, the burden l ies on the defendants to prove the ingredients to constitute the adverse possess ion. It appears from the materials available on record as well as the judgments and decrees passed that though they have claimed to be in possession of the sui t land for about 17(seventeen) years and construction of the house, they could n ot, however, prove anything relating to construction and allotment of municipal holding, though the house in question falls within the municipal area. No overt act could also be proved by the defendants. Mere possession, however long it m ay be, would not constitute adverse possession, unless of course the person clai ming adverse possession could demonstrate by adducing cogent and reliable eviden ce that he is occupying the land openly, adversely and denouncing the title of t he rightful owner. The defendants except contending that they are in possession of the suit land for 17(seventeen) years could not demonstrate existence of oth er ingredients to constitute adverse possession. No perversity in recording the finding relating to the adverse possession could be demonstrated by the defendan ts. [14] hence, the same is dismissed.
Decision
In view of the above, I do not find any merit in the appeal and [15] hout. [16] rthwith. The parties, however, are directed to bear their own cost throug The Registry is directed to send down the lower Court records fo