High Court
Case Details
RSA 36/2004 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL)
Legal Reasoning
This appeal by the plaintiff, is directed against the judgment a nd decree dated 13.03.2003 passed by the learned Civil Judge (Sr. Division), Goa lpara, in Title Appeal No.10/2002, dismissing the appeal by affirming the judgme nt and decree dated 28.02.2002 passed by the learned Civil Judge (Jr. Division) No.2, Goalpara, in Title Suit No.16/1995, whereby and whereunder the suit of the present appellant has been dismissed. 2. The appellant as plaintiff instituted the aforesaid suit praying for dec laration of right, title, interest and recovery of khas possession in respect of 4 bighas 1 katha 11 lechas of land described in schedule to the plaint, contend ing inter alia that the suit land originally belonged to his father Diwansing Da imary, after whose death he has inherited the same as the sole heir. It has furt her been pleaded that 6/7 years prior to institution of the suit, the plaintiff’ s father Diwansing Daimary allowed the defendants to occupy the suit land as per missive occupier, with the condition that as and when demand for vacating the po ssession is made, they have to comply with the same. The plaintiff further plead ed that though he demanded vacation of the possession, the defendants, however, did not do so, for which the suit has to be instituted. The defendants filed the joint written statement contending inter alia t 3. hat the plaintiff’s father and defendants’ predecessor-in-interest were the brot hers and after the death of Diwansing Daimary both of them, therefore, acquired right, title and interest over the suit land by inheritance and they are possess ing their specific share, which is the suit land. In the alternative it has also been pleaded that since the defendants are possessing the suit land for more th an 12 years with the knowledge of the plaintiff, their right has been perfected by prescription of law i.e. by adverse possession. Based on the pleadings of the parties the Trial Court framed the followi Whether there is cause of action for the suit? Whether the suit is maintainable in its present form? Whether the suit is barred by law of limitation? Whether the plaintiffs have right, title over the suit land? Whether the defendants have permissive possession and possessory right o 4. ng issues for determination:- (i) (ii) (iii) (iv) (v) ver the suit land? (vi) land by way of adverse possession? (vii) Whether the defendants acquired right, title and interest over the suit To what other relief the plaintiff is entitled under law and equity? The Trial Court upon appreciation of evidence on record adduced by the p 5. arties, dismissed the suit of the plaintiff. The Trial Court though has held tha t the plaintiff has right, title and interest in respect of the suit land by rej ecting the claim of the defendants that they have inherited the same through the ir father, it has, however, been held that the plaintiff has lost title because of the adverse possession by the defendants. Being aggrieved though the plaintif f preferred the said appeal, it has been dismissed by concurring with the findin g recorded by the Trial Court. Hence the present appeal. The appeal was admitted for hearing vide order dated 02.03.2004 on the f 6. ollowing substantial questions of law:- (i) Whether the learned courts below were justified in dismissing the suit i n not taking into consideration Section 97 vis-à-vis Section 107 of the Goalpara Tenancy Act, 1929 in view of Ext.-7 where in the name of late Dewan Singh Daima ry has been recorded as Khatian Holder and the plaintiff inherited the said prop erty and thereby the right, title, interest has been established? (ii) Whether the question adverse possession is available to the defendants i n view of the pleadings that their grandfather late Dewan Singh Daimary was the owner of the suit land and the plaintiff and defendants are uncle and the questi on of adverse possession again having not been pleaded, the learned courts below were not justified in holding that the defendants had perfected the title by ad verse possession? 7. K.P. Sarma, learned Sr. counsel appearing for the respondents.
Legal Reasoning
I have heard Mr. B. Banerjee, learned counsel for the appellant and Mr. 8. Mr. Banerjee, the learned counsel referring to the judgments and decrees passed by both the Courts below, has submitted that since the finding relating to right, title and interest of the plaintiff has been recorded by both the Cour ts below, the first substantial question of law as formulated vide order dated 0 2.03.2004 does not exist in this appeal. The learned counsel, however, has submi tted that both the Courts below were not justified in dismissing the suit of the plaintiff by holding that the plaintiff has lost title because of the adverse p ossession, in the absence of any overt act on the part of the defendants, though the defendants may be in possession of the suit land for 32 years. The learned counsel submits that mere possession of the land, however, long it may be, would not constitute adverse possession, unless of course the person pleading adverse possession demonstrate by adducing cogent and reliable evidence that he is poss essing the said land continuously and uninterruptedly, denouncing the title of t he plaintiff, which ingredients of adverse possession the defendants having fail ed to prove, the Courts below ought not to have dismissed the suit of the plaint iff. 9. On the other hand, the learned Sr. counsel appearing for the respondents supporting the judgments and decrees passed by the Courts below has submitted t hat it is apparent therefrom as well as from the evidence of the plaintiff’s and also the defendants’ witnesses that the defendants are possessing the suit land for last more than 30 years prior to institution of the suit with separate boun dary and constructing houses thereon uninterruptedly and without any objection f rom the plaintiff, who is occupying the land adjacent to the suit land and hence the defendants could prove the ingredients to constitute adverse possession. Th e learned Sr. counsel, therefore, submits that the Courts below did not commit a ny illegality in passing the impugned judgment and decree. It has also been subm itted that though the plaintiff has claimed that he is the sole heir of Diwansin g Daimary, in the evidence the plaintiff’s witness, however, has admitted that D iwansing Daimary had another son, namely, Dharanidhar Daimary, who is the brothe r of the plaintiff and hence the plaintiff’s suit for declaration of right, titl e and interest in respect of the suit land and that too in the absence of any pr oof of partition, without making Dharanidhar Daimary as a party, is not maintain able. 10. Mr. Banerjee, the learned counsel appearing for the appellant in reply h as submitted that since Dharanidhar Daimary died issueless prior to institution of the suit, the right over the property devolved on the plaintiff and hence the plaintiff’s suit is maintainable. 11. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by the Courts below. I have also perused the evidence adduced, though the Second Appellate Court nee d not marshal the evidence on record, unless of course there is allegation of pe rversity in recording such finding. Both the Courts below have recorded the finding that the plaintiff has t 12. he right, title and interest over the suit land measuring 4 bighas 1 katha 11 le chas. The Courts below, however, while recording such finding has completely ign ored Exts.-7 and 8 documents and also the evidence of PW-4, the Latmandal, where from it appears that the plaintiff has another brother, namely, Dharanidhar Daim ary, who is the son of Diwansing Daimary. There is also no evidence on record th at Dharanidhar Daimary has died and that too issueless prior to institution of t he suit. There is also no evidence on record that there was partition of the lan d left by Diwansing Daimary between Dhirendra and Dharanidhar and the suit land fell in the share of Dhirendra. On the other hand, it is the claim of the plaint iff that he was the only son of Diwansing Daimary, which as discussed above, is not correct. The plaintiff’s suit, therefore, in the absence of Dharanidhar as a party to the proceeding ought not to have been decreed declaring his right, tit le and interest in respect of the suit land. 13. That apart, the plaintiff’s witness has admitted the possession of the d efendants for more than 12 years prior to institution of the suit. The defendant Nos.1 and 2 in their evidence have also specifically stated that they are posse ssing the suit land for about 30 to 32 years by constructing houses, uninterrupt edly and without any objection from the plaintiff. The plaintiff could not produ ce any evidence to demonstrate that the defendants are not in possession for 32 years and such possession is not uninterrupted and peaceful. The story put forwa rd by the plaintiff i.e. the permissive possessor has been demolished by the pla intiff’s own witnesses, namely, PWs-2 and 3, who during cross-examination have s tated that they do not know about putting the defendants into permissive possess ion of the suit property, though in the in-chief they have claimed that they wer e present when the defendants were allowed to occupy the land by the predecessor -in-interest of the plaintiff. There is also no bar in setting up of the alterna tive plea of adverse possession by the defendants while claiming that the suit i s their ancestral property. 14. al and hence the same is dismissed. No costs. In view of the aforesaid discussion, I do not find any merit in the appe 15. Registry is directed to send down the records.