High Court
Case Details
RSA 138/2002 B E F O R E THE HO’BLE MR.JUSTICE A.K.GOSWAMI This appeal is directed against the judgment and decree, dated 04.04.2002, passe d by the learned District Judge, Goalpara, in Title Appeal No. 1/94, affirming t he judgment and decree, dated 28.08.1993, passed by the learned Munsiff No. 1, G oalpara, in Title Suit No.51/87. 2. The appellant is the plaintiff No. 1 in the suit. The suit was f iled by the plaintiff No. 1 as well as the Plaintiff Nos. 2 & 3, who were the mi nor sons of the plaintiff, being represented by the plaintiff No. 1, as their fr iend and guardian for right, title, interest and khas possession of the suit lan d measuring 1 katha 11 lechas. 3. The case set out in the plaint is that the suit land was recorde d in the name of the husband of the plaintiff No. 1, namely, late Abdul Kashem, and after the demise of late Abdul Kashem, the plaintiff No. 1, along with her t wo minor children began to stay in the suit land. The defendant is a distant rel ative of the husband of the plaintiff No. 1 and he, being very poor, requested t he plaintiff No. 1 to grant permission to him to stay in the suit land. 4. As there was no male member in the family of the plaintiff No. 1 , she permitted the defendant to live in the suit land with a verbal understandi ng that he will vacate the land as and when demanded by the plaintiff No. 1. The plaintiff No. 1, finding it difficult to live in the suit land along with her t wo children, left for Goalpara town, requesting the defendant to look after the suit land. 5. In the year 1982, the plaintiff No. 1 demanded the defendant to leave the suit premises, whereupon pleading some difficulties experienced by him , the defendant prayed for some time to vacate. As even after lapse of two years , the defendant did not leave the premises, the plaintiff No. 1 again requested the defendant, who once again, prayed for some more time to vacate the suit land . The defendant did not keep his word and once again, on 08.05.1987, the plaint iff No. 1 asked the defendant to leave the suit land. This time, she met with a response from the defendant that he is not going to vacate the suit land. Accord ingly, plaintiff No. 1 having no alternative filed the suit for declaration of t he plaintiffs’ right, title and interest on the suit land, ejectment of the defe ndant from the suit land by demolishing the houses of the defendant, decree for permanent injunction restraining the defendant from entering into the suit land, decree for mesne profit @ 500/- per month for illegal use of the suit land by t he defendant etc. 6. The defendant filed written statement contending that he was not a permissive possessor and that he, along with his father, had been continuousl y possessing the suit land since 1954 adversely to the knowledge of the plaintif f on the strength of an unregistered sale deed, executed by the late husband of the petitioner, Md. Abdul Kashem, who was the owner of the suit land, in favour of the father of the defendant, namely, Mubarak Hussain. It is pleaded that Abdul Kashem had sold the suit land to the fa 7. ther of the defendant at a consideration of Rs.148.50 by executing an unregister ed sale deed and had delivered possession of the suit land to him and thereafter , Mubarak Hussain constructed dwelling houses in the suit land in the year 1954 itself and started living in the suit land with his family members, consisting o f his wife, namely, Mazida Khatun, three sons, namely, Mazaharul Islam (the defe ndant), Mazedul Islam and Bagbul Islam and three daughters, namely, Mukshida Beg um, Masuda Begum and Saleha Khatun, till his death on 05.08.1980. It is pleaded that as Mubarak Hussain possessed the suit land co 8. ntinuously for a period of 34 years to the knowledge of the plaintiffs and their predecessors- in interest on the strength of the unregistered sale deed, he had acquired valid title to the suit land and on his death, his heirs inherited the suit land. Plea is also taken that the suit was not maintainable for not implea
Facts
The learned trial Court framed the following issues:- Whether there is a cause of action for the plaintiffs suit? Whether the suit is bad for non-joinder of necessary parties?? Whether the suit is barred by the law of limitation? Whether the defendant occupied the S/L on permission of the plaintiff No ding the other legal heirs of late Mubarak Hussain. 9. 1. 2. 3. 4. .1 with the condition to vacate the same to plaintiff as and when necessary? 5. sing the S/L since 1954 adversely to the knowledge of the plaintiff? 6. Whether Md. Kashem, the predecessor in interest of plaintiffs during his life time excented an unregistered Sale deed in favour of Mubarak Hussain, the Whether the defendant along with his father has continuously been posses Whether the plaintiffs have got right, title and interest over the suit father of defendant and gave delivery of possession? 7. land? 8. Whether the plaintiffs are entitled to get khas possession over the suit land? 9. rayed? 10. 11. Whether the plaintiffs are entitled to get the perpetual injunction as p Whether the plaintiffs are entitled to get mesene profit as prayed? To what other relief the parties are entitled under the law and equity? (cid:29) 10. During trial, the plaintiff No.1 examined herself as PW-1 and tw o other witnesses. The defendant examined himself as DW-1 and also examined anot her witness. Defendant had exhibited the unregistered sale deed, dated 16.02.195 4, as Ext- (cid:28)Ka (cid:29) and four numbers of revenue receipts as Exts- (cid:28)Kha (1) to Kha (4 ) (cid:29). The learned trial Court decided issue No. 1 in favour of the pla 11. intiffs. Issue Nos. 2, 3, 4, 5, 7,8,9,10 and 11 were decided against the plaint iffs. The issue No. 6 was also decided in favour of the plaintiffs. While decidi ng issue No. 6, the learned trial Court recorded a finding that the unregistered sale deed, dated 16.02.1954 (Ext- (cid:28)Ka (cid:29)) is not a valid document, the same havin g not been registered as required under the law and that the same can not even b e utilized for collateral purposes as the signature marked as Ext- (cid:28)Ka(2) (cid:29), whic h is the disputed signature of Abdul Kashem, apparently appeared as (cid:28)Abdo Kasem (cid:29) . Accordingly, the learned trial Court also held that it can not be accepted tha t delivery of possession of the suit land was ever done on the strength of such a document. However, in view of the findings recorded in issue Nos. 2, 3, 4, 5, 7,8,9,10 and 11, the suit was dismissed vide judgment, dated 28.09.1987, holdi ng that defendant had been in physical possession of the suit land adversely to the knowledge of the plaintiffs for not less than 15 years. 12. Title appeal being T.A. No. 1/1994 also came to be dismissed by the learned District Judge, Goalpara, vide his judgment, dated 04.04.2002. The defendant did not appear in the appeal to contest the case. 13. substantial questions of law:- (cid:28) 1) idence like the unregistered sale deed, in the case in hand executed by the vend or in favour of the Respondent while passing the impugned judgment Decree or no t? 2) Whether the findings of the courts below with regard to the long possess ion of the defendant/ Respondent in the suit premises are based on evidence or n ot? 3) d down under Order 41 Rule 31 CPC while passing the impugned Judgment or not? (cid:29) 14. I have heard Mr. S. Chauhan, learned Counsel, appearing for the appellant as well as Mr. P.K. Kalita, learned Counsel for the respondent. I have Whether both the courts below had rightly appreciated the documentary ev Whether the First appellate court had followed the provisions of law lai On 20.09.2002, this second appeal was admitted on the following also perused the records of the case. 15.
Legal Reasoning
The legal position is no doubt well settled. To establish a claim of tit In L.N. Aswathama (supra), the Apex Court stated as follows:- 18. We are however of the view that the decision in Mohan Lal relied on by t he plaintiffs is inapplicable, as the defendant therein had pleaded that he was in possession, having obtained in part-performance of a sale agreement. As the d efendant therein admitted that he came into possession lawfully under an agreem ent of sale and continued to remain in such possession, there was no adverse pos session. This case is different, as the defendant did not contend that he entere d possession under or through the plaintiffs. His case was that he was in posses sion as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot of from Gowramma in 1985. He alternatively contended that if Gowramma d id not have title and consequently his claim based on title was rejected, then h aving regard to the fact that he had been in possession by setting up title in G owramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 ye ars, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of the defendant provided he is able to est ablish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to establish his title, his possess ion would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that th e plea of adverse possession is not available to the defendant is rejected. (cid:29) 24. In G. Krishnareddy (supra), the Apex Court had approved the deci sion of the High Court to the effect that since the purchaser had taken the sta nd that by purchasing the said land under a valid sale deed he had been enjoying the cultivation and possession in his own right as owner thereof, therefore, he is precluded from setting up the inconsistent plea of adverse possession either as against the State or the grantee as follows:- It is clear from the aforesaid position that in order to overcome the af (cid:28)13. oresaid difficulties the appellant took up the plea of adverse possession by way of defence. The predecessor-in-interest of the appellant claimed title over the said land by virtue of purchase and at no stage he had put up any hostile claim to the property. The plea was of ownership by right of purchase and therefore a lawful right to enjoy the property. The learned Single Judge while allowing the writ petition filed by the respondent has made reference to the aforesaid posit ion and held that the plea of adverse possession was not available to the predec essor-in-interest of the appellant in law and in view of such legal position the authorities below erred in accepting the plea of adverse possession in respect of the granted land. There appears to be justification in the findings of the Hi gh Court (cid:29). 25. In Smti Rama Kanta Jain (supra), the Delhi High Court, following the Apex Court judgments, had stated that where in a suit for possession of pro perty, the defendant claimed himself to be the owner in possession over disputed property on the ground that he had purchased the same from the plaintiff ,the a lternative plea by the defendant that he had perfected his title by adverse poss ession cannot be allowed. 26. The learned lower Appellate Court held that as the plaintiffs fa iled to prove by adducing evidence in which year or month the defendant was allo wed to reside in the suit land and the materials on record have also established that the defendant’s father also used to reside in the suit land for more than 12 years before institution of the suit, claiming the suit land as his own, no interference was called for with the findings of the learned trial Court. In the written statement, at paragraph 2 and paragraph 11, the d 27. efendant stated as follows:- (cid:28) 2. That this suit is barred by limitation. The defendant is not a permissive p ossessor. The defendant along with his father has continuously been possessing t he suit land since 1954 adversely to the knowledge of the plaintiffs on the stre ngth of an unregistered sale deed executed by Abdul kashem, the then owner of th e suit land, in favour of Mubarak Hussain, the father of the defendant. & & & & & & & & & & & & & & & & & & & & & & & & & 11. That the case in brief is that the predecessor of the plaintiff late Abdul K ashem was the owner of the suit land. Said Abdul Kashem in the year 1954 sold th e suit land to Mubarak Hussain, the father of the defendant at a consideration o f Rs.148.50 (one hundred forty eight and fifty paises) and executed an unregiste red sale deed in favour of Mubarak Hussain and delivered him possession of the s uit land. Mubarak Hussain after obtaining possession constructed dwelling houses in the suit land in 1954 and began to occupy the same continuously along with h is family members consisting of his wife Mazida Khatun, three sons namely Mozaha rul Islam the defendant, Mazedul Islamand Bagbul Islam and three daughter namely Mukshida Begam, Masuda Begum and Saleha Khatun till 5/8/80 when he died leaving his above heirs. Said Mubarak Hussain possessed the suit land continuously for a period of 34 years to the knowledge of the plaintiffs and their predecessor in interest on the strength of aforesaid unregistered sale deed and thereby he acq uired valid title to the suit land and after the death of Mubarak Hussain the de fendant and the aforesaid heirs inherited the suit land and they are continuousl y occupying the suit land as before. The title acquired by Mubarak Hussain to th e suit land has devolved to his aforesaid heirs who have also acquired valid tit le to the suit land. The plaintiffs have no title to the suit land and hence the y have no right to institute this suit. (cid:29) 28. From the aforesaid, it is crystal clear that the defendant had t aken the plea that on the strength of the unregistered sale deed, executed in th e year 1954, they came into possession of the suit land and thereby acquired val id title and that since 1954, had been in possession in the suit land adversely to the knowledge of the plaintiffs. As has been held in P.T. Munichikkanna Reddy (supra), the said plea of title and adverse possession are mutually inconsisten t. It is also noticed that the plea regarding title by purchase was not renounce d by the defendant. In the facts of the case, it cannot be said that the pleas s et forth by the defendant are not inconsistent pleas but alternative pleas avail able on the same facts which was the case in L.N. Aswathama (supra). 29. Both the Courts below, as has been noticed earlier, had held tha t Ext- (cid:28)Ka (cid:29) was not a valid sale deed and that delivery of possession to the def endant was never done on the strength of such a document. It is also admitted po sition that the defendant did not dispute that late Abdul Kashem was the owner o f the suit land. In law, possession follows title. In view of the fact that the plea of purchase was disbelieved and negated by the Courts below, there is no ma nner of doubt that the plaintiffs will have title to the suit property and will be entitled to decree for possession, unless their right to the suit property wa s extinguished by reason of the defendant being in adverse possession for a peri od of 12 years prior to the suit. The learned Courts below gave much emphasize o n physical possession of the suit land by the defendant and his family. 30. From the evidence of the plaintiffs’ witnesses, it would appear that father of the defendant Mubarak was also allowed to live in the suit land b y the husband of the appellant. This was not the pleaded version in the plaint. Mr. Kalita may be right that there is some inconsistency as to when the defendan t came to occupy the suit land. However, in the facts and circumstances of the c ase, the same may not be of much consequence. Even if the father of the defendan t along with his family was also allowed to live in the suit land by the late h usband of the plaintiff No.1, it appears that after the death of her husband, th e plaintiff No.1 permitted the defendant to stay in the suit land and that she a lso entrusted him to look after the suit land. The claim of the defendant is fou nded on the unregistered sale deed Ext- (cid:28)Ka (cid:29) and there is no other evidence rega rding hostile possession. The learned Court below dismissed the suit of the plai ntiffs only because the defendant was found to be in possession of the suit land for not less than 15 years, perversely holding the same to be adversely to the knowledge of the plaintiffs. 32. Though in view of the pleadings and prayer made in the plaint for decree for mesne profit of Rs.500/- per month, issue No.10 was framed to that effect, no evidence was led by the plaintiffs in that regard and PW1 only stated that th e case was filed only to recover possession from the defendant after evicting hi m. During the course of argument also, no argument was advanced by Mr. Chouhan w ith regard to prayer for decree for mesne profit. 33. In view of the discussions made above, the second appeal is allowed. The impugned judgments and decrees of the learned Courts below are set aside. Excep t the prayer for decree for mesne profit, the suit is decreed as prayed for. 34. Send back the LCRs.
Arguments
Mr. Chauhan submits that as had been noted by the learned lower appellate Court, the fate of the suit depended on the issue Nos. 4 & 5. Learne d Counsel submits that there is no dispute that the husband of the appellant is the owner of the suit land and the purported sale made by him by an unregistered sale deed, (Ext-’Ka (cid:29)) has been disbelieved by the learned trial Court. Mr. Chau han submits that there is no pleading with regard to adverse possession by the d efendant in the written statement and the entire case of the defendant rested on the alleged unregistered sale deed. The learned Courts below having held that E xt- ’Ka (cid:29) is not a valid document and that no delivery of possession had passed o n to the defendant on the basis of such a document, the learned Courts below rec orded a perverse finding that the defendant had been adversely possessing the su it land to the knowledge of the plaintiffs for not less than 15 years. The learn ed Counsel also submits that as the defendant had taken a plea of purchase of th e suit land, he is precluded from setting up an inconsistent plea of adverse pos session. The learned Counsel relies on the following judgments in support of his submissions: AIR 1996 SC 869 (Dr. Mahesh Chand Sharma -Vs.- Smti Raj Kumari Sharma an AIR 1995 SC 895 ( Annasaheb Bapusaheb Patil and others. -Vs.- Balwant al (1996) 1 SCC 639 [Mohan Lal (deceased) through his LRs. Kachru and other AIR 1999 Delhi 281 (Smti Rama Kanta Jain -Vs.- Ms. Jain & others.). (2011) 13 SCC 226 [G. Krishnareddy -Vs.- Sajjaappa (dead) by LRs. and a i) ii) nother]. iii) s -Vs.- Mirza Abdul Gaffar and another]. iv) ias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc. v) d others.). vi) (2009) 13 SCC 229 (L.N. Aswathama and another -Vs.- P. Prakash). 16. Mr. P.K. Kalita, learned Counsel appearing for the respondent, s ubmits that both the Courts below had concurrently held that the possession of t he defendant has become adverse to the interest of the plaintiffs for more than 15 years and the said finding of fact is based on evidence on record and in thi s second appeal, no interference is called for with regard to the said finding o f fact. It is contended by him that it is an established proposition of land tha t the plaintiff must prove his case and in the instant case, the plaintiffs had made contradictory statements even in the plaint, more particularly, at paragrap hs 5 and 7 thereof. The plaintiffs miserably failed to prove that the defendant was in possession of the suit land in his capacity as a permissive occupier and there are inherent inconsistencies in the evidence of the witnesses examined by the plaintiffs. It is also submitted by him that it is permissible for the defen dant to take contradictory pleas in the written statement and therefore, the con tention of Mr. Chauhan that it is impermissible for the defendant to set up a pl ea of adverse possession after taking a stand of purchase, is wholly not correct . Apart from paragraph 17 of L.N. Aswathama (supra), upon which reliance was p laced also by Mr. Chauhan, the learned Counsel relies on paragraph 18 thereof as well as on (2007) 6 SCC 59 ( P.T. Munichikkanna Reddy and Others -Vs.- Revamma and Others). 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 t he title by adverse possession. Adverse possession, in a sense, is based on the presumption that the owner has abandoned the property to the adverse possessor o n the acquiescence 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 ble nded one of fact and law. A person who claims adverse possession must show: (a) on what date he came into possession, (b) what was the nature of possession, (c) whether the factum of possession was known to the other party, (d) how long has his possession continued, and (e) his possession was open and undisturbed. In order to succeed a person pleading adverse possession must clearly plead and est ablish all facts necessary to establish his adverse possession. In terms of Arti cle 65 of the Limitation Act, 1963, the starting point of limitation does not co mmence from the date when the right of ownership arises to the plaintiff but com mences from the date the defendant’s possession becomes adverse. Therefore, ther e must be intention to dispossess. Animus possidendi is one of the ingredients of adverse possession. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario is necessary to constitute adverse pos session. The evidence of PW-1 was recorded on 07.08.1991. In her evidence 18. , PW-1 had stated that her husband did not sell the said property to anyone. It is deposed by her that after the death of her husband, after residing in the sui t land for some time, she came to Goalpara after entrusting the defendant to loo k after the suit land. In cross-examination, she has stated that her husband die d about 18 years back, meaning thereby on or about in the year 1973. She also de posed that Mubarak had started living in the suit land along with his family aft er taking the same from her husband. She denied that her husband had allowed Mub arak to reside in the suit land as he had purchased the same from her husband. P W-2 deposed in cross-examination that the defendant and his family were residing in the suit land for 14/15 years and Mubarak died about 10/12 years back. His e vidence was recorded on 28.04.1992 and cross-examination on 06.07.1992. PW-3, a mongst others, deposed to the effect that the defendant was allowed to reside in the suit premises. 19. DW-1 had deposed that his father, Mubarak Hussain had purchased the suit land in the year 1954 by an unregistered sale deed and since then, was in possession of the said land. His father died on 05.08.1980 and after the deat h of his father, he and the other heirs of late Mubarak Hussain were in possessi on of the suit land as his legal representatives. DW-2 is the brother of Abdul K ashem and he deposed that Abdul Kashem had sold the suit land and he had signed as a witness in Ext- (cid:28)Ka (cid:29). He also deposed that Mubarak Hussain died in the year 1980 and that Abdul Kashem died about 15/16 years back. His evidence was record ed on 14.07.1993. 20. ollows:- In Annasaheb Bapusaheb Patil (supra), the Apex Court stated as f (cid:28)13. Article 65 of the Schedule to the Limitation Act, 1963 prescribe s that for possession of immovable property or any interest therein based on tit le, the limitation of 12 years begins to run from the date the defendant’s inter est becomes adverse to the plaintiff. Adverse possession means a hostile asserti on i.e. a possession which is expressly or impliedly in denial of title of the t rue owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequ ivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleg ed by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circ umstances of each case. The person who bases his title on adverse possession, th erefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed . 14. Where possession can be referred to a lawful title, it will not be consi dered to be adverse. The reason being that a person whose possession can be refe rred to a lawful title will not be permitted to show that his possession was hos tile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title cannot divest another of that title by pr etending that he had no title at all. (cid:29) 21. In Dr. Mahesh Chand Sharma (supra), the Supreme Court emphasized that a person pleading adverse possession has no equities in his favour and tha t as he is trying to defeat the rights of the true owner, it is for him to clear ly plead and establish all the facts necessary to establish his adverse possessi on. 22. In P.T. Munichikkanna Reddy (supra), the Apex Court referred to Karnataka Board of Wakf -Vs.- Government of India, reported in (2004) 10 SCC 779 as well as Mohan Lal (supra) and stated as follows:- (cid:28)33. In Karnataka Wakf Board, it is stated : (cid:28)12. A plaintiff, filing a title suit should be very clear about the ori gin of title over the property. He must specifically plead it. In P. periasami v . P. Periathambi this Court ruled that: (cid:28) Whenever the plea of adverse possession is projected, inherent in the plea is that 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: ’4.As regards the first plea, it is inconsistent with the second plea. Having co me into possession under the agreement, he must disclaim his right thereunder an d plead and prove assertion of his independent hostile adverse possession to the 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 y ears i.e. up to completing the period his title by prescription nec vi, nec clam , 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 lan d lawfully under the agreement and continued to remain in possession till date o f the suit. Thereby the plea of adverse possession is not available to the appel lant. (cid:29) 23. (cid:28)17. le by prescription, that is, adverse possession for 12 years or more, the posses sion of the claimant must be physical/ actual, exclusive, open, uninterrupted, n otorious and hostile to the true owner for a period exceeding twelve years. It i s also well settled that long and continuous possession by itself would not cons titute adverse possession if it was either permissive possession or possession w ithout animus possidendi. The pleas based on title and adverse possession are m utually inconsistent and the latter does not begin to operate until the former i s renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for p rescription will not commence. (Vide P. Periasami v. P. Periathambi, Md. Mohamma d Ali v. Jagadish Kalita and P.T. Munichikkanna Reddy v. Revamma.).