High Court · 2012

This appeal by the plaintiff is directed against the judgment of reversal dated 20.5.2004 passed by the learned Civil Judge (Senior Division), B ongaigaon in Title Appeal No. 9/2002, allowing the appeal by setting aside the j udgment and decree dated 7.6.2002 passed by the learned Civil Judge (Junior Divi sion), Bijni in Title Suit No. 24/2000, whereby and whereunder the suit of the p laintiff/appellant was initially decreed. The appellant as plaintiff instituted the aforesaid suit for declaration of righ t, title and interest and for possession in respect of the land described in sch edule B of the plaint contending that during the lifetime of Chairam Rajbongshi, the father of the plaintiff, entire land was partitioned amongst the brothers. It has further been contended that by such partition the land described in sched ule B fell in the share of one of the brother Upen Das who though married he bei ng issueless, after his death the plaintiff continued to possess the said land ( schedule B land). It is also the case of the plaintiff that Upen Das gifted his share of land (schedule B) to the plaintiff by oral gift and as such he acquired right, title and interest over the schedule B land. According to the plaintiff in any case since he has been possessing the land which fell in the share of Upe n Das for more than 12 years openly denouncing the title of the lawful owner he acquired his title by adverse possession. The defendants on receipt of the summons appeared and contested the suit by fili ng written statement denying the partition as well as the gift. It has been cont ended by the defendants that the entire property left by Chairam Das devolved on all the brothers and sisters and they are the joint owners. The trial court on the basis of the pleadings of the parties framed the followin g issues for consideration and decision: - (cid:28)1. Whether there is any cause of action against the defendants? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is bad for non joinder of necessary parties? 4. Whether the suit is valued properly? 5. Whether the plaintiff is the owner of the suit land? 6. Whether late Upen Das made an oral gift of his share in his lifetime in favou r of the plaintiff? 7. Whether Chai Rajbongshi divided his landed properties during his life amongst his heirs?

8. Whether the defendants got mutation in connivance with the revenue staff? 9. Whether the plaintiff is entitled to a decree as prayed for right, title and interest over the suit land for correction of record of right by inserting the n ame of the plaintiff in lieu of the defendants and for permanent injunction? 10. To what relief/reliefs are entitled to the parties? (cid:29) The learned trial court upon appreciation of the evidences on record decreed the suit of the plaintiff declaring the right, title and interest of the plaintiff in respect of the schedule B land by holding that his right has ripen by adverse possession. Being aggrieved, the defendants preferred Title appeal No. 9/2002 which is allow ed by the learned first appellate court by the aforesaid judgment dated 20.5.200 4 setting aside the judgment and decree passed by the learned trial court. Hence the present appeal. I have heard Mr. I Hussain, learned counsel for the appellant as well as Mr. Sha rma, learned senior counsel for the respondents. It has been contended by the learned counsel for the appellant that since the pl aintiff is in possession of the land falling in the share of Upen Das (schedule B) openly and denouncing the title of the rightful owner he had acquired right, title and interest by adverse possession over the schedule B land which was righ tly held by the learned trial court after discussing the evidences, which has be en reversed by the learned first appellate court without discussing the evidence s on record. The learned counsel, therefore, submits that the appeal may be admi tted for hearing by formulating the substantial question of law accordingly. The learned senior counsel appearing for the respondents, however, has submitted that even if the plea taken by the plaintiff relating to partition of the prope rty amongst the brothers and sisters is accepted after the death of Upen Das, on e of the brother of the plaintiff and the defendants, the property left by Upen Das devolved on the plaintiff as well as the defendants and as such they become the co sharers of the property and hence the plaintiff even if in possession can not claim title by adverse possession against the other brothers and sisters his possession being on behalf of all the co sharers. The learned senior counsel, t herefore, submits that no substantial question of law is involved in the present appeal so as to admit the appeal. The plaintiff/appellant claimed that during the lifetime Chairam Rajbongshi divi ded the land belonging to him amongst the brothers namely the plaintiff and the defendants and Upen Das. The said property described in schedule B according to the plaintiff fell in the share of Upen Das who died issueless and hence after h is death the property devolved on all the brothers namely the plaintiff and the defendants. Even if the plea of partition taken by the plaintiff in the plaint i s accepted, after the death of Upen Das, the property described in schedule B wo uld devolve on the plaintiff and the defendants they being the brothers of Upen Das. The plaintiff being one of the co sharers, therefore, cannot claim title by right of adverse possession as against the other co sharers, as the plaintiff’s possession of the land in schedule B is on behalf of other co sharers. The plai ntiff though claimed that the land described in Schedule B was gifted to him ora lly, he, however, could not substantiate the same. Moreover no right, title and interest by way of oral gift can be acquired by the plaintiff in view of Section 123 of the Transfer of Property Act, the parties being governed by Hindu Law. T hat apart the partition of the land, as pleaded by the plaintiff, could not be p roved by him. In view of the above, no substantial question of law is involved in the present appeal so as to admit the appeal and hence the same is dismissed. No cost.