High Court
Case Details
RSA 130/2004 BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL
Legal Reasoning
The Judgment and decree dated 17.5.2004 passed by the learned Civil Judge ( Sr.D iv), Dhubri in Title Appeal No.1 of 2003 is under challenge in this regular seco nd appeal. By this impugned judgment the first appellate court has reversed the decree passed by the trial court in favour of the plaintiffs. 2. Heard Mr. GP Bhowmik , learned counsel for the appellants and Mr. BR Dey , learned senior counsel for the respondents. Also gone through the judgment of the courts below. I have also perused the records. 3. This second appeal was admitted for hearing on the following substantial questions of law: Whether counter claim of the defendant of respondents is barred by the l Whether the judgment and decree passed by the lower appellate court is v (i) itiated by perversity of finding of facts effecting the merit of the case? (ii) aw of limitation? 4. The appellants case in the trial court was that they came into possessio n of the suit land on the basis of un-registered mortgaged deed dated 21.1.1949 on payment of Rs.500/- as loan amount to the predecessor in interest of the def endants. The mortgage period was only for a period of 3 years. Since the loan am ount was not returned to plaintiffs and the predecessor continued to remain in p ossession of the suit land. In the year 1958 the plaintiffs also constructed hou se on the suit land and obtained municipal holding and paid municipal tax as wel l. In view of this overtact they have perfected their title on the theory of (cid:28)ad verse possession (cid:29). 5. The defendants’ case was that the land was never given in possession of the plaintiffs on mortgage. The defendants’ case was the predecessor in interest of the plaintiffs were allowed to stay in the suit land as permissive possessor . The defendants also pleaded that despite notice the plaintiffs did not vacate the suit land. In addition to denying the title of the plaintiffs by way of adve rse possession, the defendants also made a counter claim for recovery of khas p ossession. Though the suit of the plaintiffs was decreed in favour of the plaint iffs and dismissing counter claim of the defendants the appellate court has reve rsed the findings. Hence, this appeal is at the instance of the plaintiffs. 6. Regarding the maintainability of the second appeal Mr. Dey submitted tha t High Court should not give new findings in the second appeal and cited the jud gment of the Hon’ble Supreme Court rendered in the case of Ramchandra Pandurang Sonar & Irs, -vs- Murlidhar Ramchandra Sonar & Ors.:1990 (4) SCC 45. In fact the re are scores of judgments from the Hon’ble Supreme Court limiting the scope of the High Court to interfere in the findings of the courts below, more so, if the re are concurrent findings. At the same time the powers of the High Court have n ot been curtailed to interfere with perverse findings. In the case of D. R Rathn a Murthy -vs- Ramappa ;2011(1) SCC 158 the Hon’ble Supreme Court has given the f ollowing observations: (cid:28)Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on recor d or where the core issue is not decided. There is no absolute bar on the reappr eciation of evidence in those proceedings, however such a course is permissible in exceptional circumstances (cid:29). As noted earlier this second appeal has arisen out of conflicting findi 7. ngs. Besides this, in view of the aforesaid authority from the Apex Court I am inclined to re-examine the findings of the courts below. Accordingly, the substa ntial question No.(i) is answered in favour of appellants. 8. On the merit of the case, the learned counsel for the appellants argued that the counter claim of the respondents/defendants for recovery of khas posse ssion of the suit land was barred by law. According to the learned counsel, the plaintiffs came into possession of the suit land in the month of January, 1949 a nd their possession was uninterrupted till the filing of the suit in the year 19 80. According to the learned counsel, the defendants had lost their right to get a decree of khas possession after 12(twelve) years of the expiry of the mortgag ed period and, that too, by way of filing coutner-claim in the appellants suit. In other words, according to the learned counsel the defendants could have evict ed the plaintiffs/appellants by way of filing a suit on or before January 1963. However, the counter claim was filed only in the year 1998 and since it was beyo nd the statutory period no decree for recovery of khas possession could have bee n granted by the appellate court. 9. Mr. Bhowmik, learned counsel for the appellants also submitted that even if the plaintiffs were occupying the land as permissive possessor they had ever y right to claim title on the basis of long and hostile adverse possession. Thi s submission was made on the basis of a judgment rendered by the Orissa High Cou rt in the case of Angara Bhoiani and others -vs- Kanhei Misra and another; repor ted in (AIR) 1981 Orissa 93. In this case the plaintiff was occupying a plot of land on the basis of an unregistered sale deed. Despite that it was held that th e plaintiff had a right to put up a plea of adverse possession. In the recent ju dgment of the Hon’ble Supreme Court in the Case of A. Shanmugam -Vs- Ariya Kshat riya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President And Others; reported in (2012) 6 SCC 430 the Hon’ble Supreme Court h as deprecated the practice of granting title on the pleas of adverse possession without any solid evidence of adverse possession. In this case, the plaintiff wa s engaged by a society as a watch-man and allowed him to live in the suit premis es. On the basis of such possession the watch-man claimed title on the principl e of adverse possession. The plaintiffs plea was turned down by the Apex Court h olding that the watch-man was holding the property on behalf of the principal. A t the same time, Their Lordships have observed that the court can grant protecti on to a person who has a valid subsisting rent agreement or lease agreement or l icence agreement in his favour. In this way Their Lordships have held that permi ssive possessior have limited right but, at the same time, their right to claim title over the suit property on the basis of adverse possession has not been tot ally foreclosed. In the case before me, though there is no dispute about title of the respondents the appellants are claiming title and possession on two count s. Firstly, that they came into possession of the suit land on the basis of a mo rtgage deed and , secondly, they continued in the possession of the suit land ev en after expiry of the mortgage period. 10. Mr. Dey, learned Sr. counsel for the respondents submitted that conflict ing and inconsistent pleas cannot be allowed to be taken by the plaintiffs. In t his regard, the learned Sr. counsel cited the authority of Hon’ble Supreme Court rendered in the case of Mohanlal (Deceased) Through His LRS, Kachru and Others -Vs- Mirzabdul Gaffar and Another; reported in (1996) 1 SCC 639. In this citied authority, the plaintiff had first filed a suit for specific performance under Section 53-A of the Transfer of Property Act and the said suit was dismissed. Su bsequently, when the land owner filed the suit the defendant took a plea of adv erse possession. However, that is not the situated before me. In the instant cas e, both the pleas have been taken simultaneously in the plaint itself. 11. In reply to the aforesaid objection regarding inconsistent plea, Mr. Bho mik, learned counsel for the appellant submitted that since the mortgage documen t was unregistered it can be considered as a conditional mortgage and the suit w as not entirely based on the said document. According to the learned counsel sin ce it was an important document to prove the date of possession of the plaintif fs the same was narrated in the plaint. 12. After going through the entire pleading it appears to me that by and lar ge the suit was based on the theory of adverse possession. Under Article 65 of t he Limitation Act a suit for recovery of possession can be filed within 12 years from the date it become adverse to the plaintiff. In the case at hand, there is no dispute that the plaintiffs came into possession of the suit land in the mon th of January, 1949. The plaintiffs claim that they came into possession of the land on the basis of a mortgage document and the defendants plea was that the plaintiffs were allowed to stay on the suit land as a gratuitous occupier. Even for a moment it is presumed that the predecessor-in-interest of the plaintiff w as a permissive possessor, the defendants ought to have filed a suit for recover y of possession within 12 years of service of notice to vacate the land or from the date when they came to know that the plaintiffs had constructed a house with out any permission. 13. In the written statement, a vague plea was taken that the predecessor-in -interest of the defendants, Late Ganga Kumhar, was asked to vacate the suit pro perty. No date of any such notice was mentioned in the written statement. Only i n the oral evidence, DWs-2 and 3 have deposed that Late Ganga Kumhar was request ed to vacate the property in the year 1988 and again, the plaintiffs were asked to vacate the suit land in the year 1998. At the same time, it is in the evidenc e of DW-3 that Late Ganga Kumhar died in August 1988. Hence, the Court can enter tain a lurking doubt about requesting the plaintiff’s predecessor-in-interest to vacate the land only in the year when he died. 14. The record of oral evidence of the witnesses also disclose that the plai ntiffs had constructed the house on the suit land and obtained Municipal Holding No. 739, under Exhibit-1. As per the plaintiffs, the house was constructed in t he year 1958. Exhibit -1 is the document of Demand and collection register for t he year 1962-63. If this was the position I failed to understand as to why the d efendants and their predecessor-in-interest remained silent to get their land va cated till 1988. On the other hand, the defendants’ documents under Exhibits- G and H shows that municipal taxes were paid against the Holding Nos. 831 and 944, i.e., against some other houses, which were standing on other parts of the defe ndants’ land. 15. The appellate Court has reversed the findings of the trial Court on the ground that there was no evidence of any overt act on the basis of which it can be ascertained that the plaintiffs’ possession over the suit land had become adv erse. However, this finding is perverse to the evidence of the plaintiffs’ witne sses that residential houses were constructed by the plaintiffs and municipal ho lding was also obtained and taxes were paid under Exhibit-1. The appellate Court has also held that there is no evidence of payment of municipal taxes since the year 1963. In my considered opinion, non-payment of municipal taxes after a cer tain period would have a different consequence. But the development that had tak en place prior to 1963 could not have been ignored by the appellate Court. 16. The appellate Court has also given weightage to the title documents of the plaintiffs and receipts of land revenue and municipal taxes. It is the admit ted fact of both the parties that the plaintiff’s predecessor-in-interest came i nto possession over the suit land in the year 1949 and at that time, Zamindari s ystem was prevailing in Assam. The Zamindari system was abolished only in the ye ar 1951. The land documents in favour of the plaintiffs are only of the year 196 2 and those are after the Zamindari system was abolished. Hence, it is not clear as to on what basis and title the plaintiffs were put in possession by the def endants in the land. The Exhibits- C, D, G and H are the documents of land reve nue receipts for the years 1963, 1967 and 1969. Since the plaintiffs were the la nd owners it was but natural for them to pay the land revenue. However, Exhibits - G and H clearly show that the municipal holdings were different from that of t he plaintiffs. But , this aspect has not been taken care of by the appellate Cou rt before reversing the trial Court judgment. The appellate Court has also held that no mutation of the land records h 17. ad taken place in favour of the plaintiffs. In my considered opinion, non-transf er of the name in the land records is not sine qua non to establish the plea of adverse possession. I have already mentioned earlier that there are evidences of construction of houses by the plaintiffs and payment of municipal taxes by way of obtaining municipal holding and long un-interrupted possession. Besides this, the cause of action for seeking a decree of khas possession by the defendants a rose at least from the year of construction of the houses by the plaintiffs, i.e , 1958. Though the defendants have claimed that the defendants’ predecessor-in-i nterest was asked to vacate the land in the year 1988. However, there is no doc umentary evidence of any written notice in this regard. Hence, this plea of the defendants/ respondents cannot be accepted. 18. For the foregoing reasons, I allow the appeal by way of setting aside th e appellate judgment. In other words, the judgment of the trial Court, passed in Title Suit No. 243 of 1998, by the learned Civil Judge No. 1 (Junior Division), Dhubri stands restored.