Calcutta High Court (Appellete Side)
Gita Rani Das vs Smt. Jayabati Dutta & Ors on 23 June, 2017
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice Tapash Mookherjee
S.A. 431 of 1999
Gita Rani Das
-versus-
Smt. Jayabati Dutta & Ors.
For the Plaintiff/Appellant: Mr. Tapas Kr. Bhattacharya
Mr. Hindol Nandi
Mr. Aviroop Bhattacharya
For the Defendants/Respondents: Mr. Pratik Kr. Bhattacharjee
Heard on: 20.6.2017 and 21.06.2017.
Judgment on : 22.06.2017 and 23.6.2017
Tapash Mookherjee, J.
The present second appeal is directed against the judgement dated 30th January, 1999 passed by the learned Civil Judge (Senior Division), Ranaghat, Nadia in Title Appeal No. 50 of 1995 by which the Appellate Court affirmed the 1 judgement and decree passed by the learned Munsif, Additional Court, Ranaghat on 30.8.1995 in Title Suit No. 5 of 1995.
The defendants in the suit are the appellants and the plaintiff in the suit is the respondent herein.
The plaintiffs' case in the suit may be summarized, in short, as follows: -
The suit property is a piece of land in R.S.Plot No.254 Measuring an area of five 'Katha' in Mouza Taherpur under Police Station-Ranaghat in the District of Nadia detailed in schedule to the plaint, originally belonged to the Relief and Rehabilitation Department of the State of West Bengal. The suit property was at first allotted to the plaintiff's husband who migrated in India as a refugee from erstwhile East Pakistan. Subsequently, the Government of West Bengal by an indenture dated 3rd June, 1989 gifted the suit property to the plaintiff. After the death of plaintiff's husband, she started to reside at her place of work because of which the plaintiff engaged her neighbour one, Anil Kumar Basu to look after the suit property. The said Anil Kumar Basu let out the suit property to one, Santosh Karmakar as a tenant but subsequently, the said tenancy was surrendered. Thereafter, the said Anil Kumar Basu without any permission from the plaintiff, allowed her daughter and son-in-law who are the defendant nos. 1 and 2 in the suit to possess the suit property on condition that they would vacate the suit property as and when asked for. Subsequently, the defendant nos. 1 and 2 refused to vacate the suit property. Hence, the plaintiff filed the present suit 2 praying for declaration of her title in the suit property and recovery of her possession and other related reliefs as well.
The defendant nos. 1 and 2 contested the suit filing their written statement in which all the material allegations in the plaint were denied in general terms. Besides, it was the specific case of the defendant nos. 1 and 2 that the suit property was a jungle, full of trees and bushes 22 - 22 years ago and they cleared the jungle and constructed a small house therein, in which they have been continuously residing and thus by residing in the suit property continuously for a period of 22 - 23 years they have acquired the title over the suit property by the law of adverse possession.
Both the parties adduced their evidence in the Trial Court. Considering the evidence adduced by the parties, the Trial Court was of the view that the plea of adverse possession was taken up by the defendants as their substantive defence and not as an alternative defence. It was also the view of the Trial Court that the claim of adverse possession was not properly pleaded in the written statement of the defendant nos. 1 and 2 and essential ingredients of title by adverse possession was neither pleaded in the written statement nor proved in evidence by the defendants. The Trial Court refused to believe the defendants' case of continuous possession and other claims of the defendants.
For the aforesaid reasons as well as the other reasons, the Trial Court passed decree in the suit..
Being dissatisfied with the judgment and decree of the Trial Court, the defendants filed an appeal being Title Appeal No. 50 of 1995. The Appellate Court concurred with all findings of the 3 Trial Court and dismissed the appeal. Being also aggrieved by the judgment of the First Appellate Court, the defendants in the suit filed the present second appeal.
At the time of admission of the appeal, the Division Bench formulated the following substantial question of law, on 24.6.1999 "whether the period of limitation will be twelve years or thirty years for claiming title by adverse possession as against a settlee of the Government in respect of a Government land".
In this second appeal, the appellant has filed an application bearing CAN No. 8988 of 2015 praying for the liberty to produce additional evidence, the said application has also been heard along with the appeal.
Learned Advocate Mr. Tapas Kumar Bhattacharyya appearing for the appellant submitted that according to the plaintiff, the suit property was originally allotted to the plaintiff's husband, Monoranjan Dutta by the State Government. But there is no averment in the plaint that such allotment was ever withdrawn or cancelled by the settler and the fact being so, there cannot be any allotment of the suit property in favour of the original plaintiff, Jayabati Dutta as claimed. Mr. Bhattacharyya has further submitted that the original plaintiff claimed to have engaged one, Anil Kumar Basu as the Care Taker for the suit property in the year 1979-1980, although according to her, the suit property was settled to her by the State of West Bengal on 3rd June, 1989 and hence, the entire case of the respondent is baseless. It was further submitted by him that the appellant by cogent evidence could prove his continuous possession over the suit property for more than 20-23 years prior to the suit and thus the appellant acquired valid title over the suit property, by adverse possession against the appellant as per the provision in Section 65 of the Limitation Act. He further mentioned that since the State of West Bengal is not a party in the litigation, the question of adverse possession against the State should not be considered in this case.
Mr. Bhattacharyya has also submitted that during the pendency of this appeal, the appellant has received certain documents to strengthen his claim of continuous possession over the suit property and for the purpose of getting those 4 documents admitted in evidence, the appellant has filed the application under Order 41, Rule 27 of the Code of Civil Procedure. It is also the submission of Mr. Bhattacharyya that the substantial question of law was erroneously framed in the suit and as such the substantial question of law should be reformulated and the appeal should be heard on such reformulated question of law. He has cited a decision on the point reported in (2007) 3 SCC 114.
In reply, learned advocate Mr. Pratik Kumar Bhattacharyya has submitted that since there is a concurrent finding on all points by both the courts below and no such finding being perverse, there is hardly any scope to interfere with the findings of the courts below. He has further submitted that the ingredients necessary to claim title over any property by adverse possession has not been pleaded in the written statement. So such a claim of the appellant must fail. He has further submitted that the suit property was allotted to the respondents by the R.R. Department of the State of West Bengal by a registered indenture dated 3rd June, 1989 which has been admitted in evidence as Exbt. 1 and some other documents have also been produced and proved by the respondents to show her possession over the suit property. On the other hand, the appellant could not produce any document whatsoever to prove his claim of reclamation of the suit property and possessing it for a long period and thereby acquiring title over the suit property by adverse possession. He has further added that the appellant has claimed adverse possession against the State of West Bengal, whereas, it is the claim of the appellant himself that he is possessing the suit property for about 22-23 years only. Adverse possession over a property against the State is always needed to be hostile possession continuously and openly for at least 30 years as stated in Article 112 of the Limitation Act. So the claim of the appellant at its face is devoid of any legal basis whatsoever.
Mr. P.K. Bhattacharyya has cited a decision of the Hon'ble Apex Court in the case of Hamaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Anr. down loaded through internet 5 system as claimed by him, to suggest the necessary ingredients of acquisition of title by adverse possession. A copy of the judgment is also served upon the learned advocate for the appellant.
The appellant in her application under Order 41 Rule 27of the Code of Civil Procedure wanted to allow her to prove three documents marked Annexures 'X', 'Y' and 'Z', the copies of which have also been annexed in the application. Both the annexures 'X' and 'Y' came into existence in the year 1988 i.e. long after filing of the suit and annexure 'Z' also came into existence after a considerable period from filing of the suit. No explanation has been offered as to why those documents were not produced either in the trial Court or in the first appellate Court. In such circumstances, such a prayer should not be allowed in such an old suit.
On perusal of the judgments of the courts below it is found that all the questions of fact involved in the suit have been considered properly by the courts below. The only substantial question of law involved in the suit is whether the appellant can claim adverse possession against the State in this case. So the substantial question of law has been correctly formulated. The judgment reported in (2007) 3 SCC 114 cited by the learned advocate for the appellant has no application in the present case, as the basic facts are different in the two cases.
The respondents claimed their right, title and interest over the suit property on the basis of a registered deed of gift executed in favour of their predecessor in interest by the Government of West Bengal (Exbt. 1). It is true that the respondents claimed that the suit property was at first allotted by the State to the husband of the original plaintiff, Monoranjan Dutta, but she never claimed that such an allotment was by any valid document. So the question of cancellation or withdrawal of such settlement by the State does not arise.
From the recital in the deed of gift in favour of the original plaintiff (Exbt.1) it is found that the Government of West Bengal took a policy decision to rehabilitate the displaced refugees migrating from the erstwhile East Pakisthan, in the land owned by the State, on the basis of physical possession of the land by such displaced refugees. The suit property was allotted on the basis of such policy of the State and it is stated in the deed that the original plaintiff possessing the suit property at the time of its settlement. The question of continuity of such possession of the respondents has been considered and decided by both the courts below. 6
On the other hand, the appellant could not file any document to prove his claim of continuous possession over the suit property.
The appellant claimed title over the suit property by adverse possession but the necessary ingredients needed to prove such claim of adverse possession have not been pleaded in the written statement. In fact, there is no such pleading for the appellant on the point, who was the real owner of the suit property against whom he claimed adverse possession and from when such possession, if any, became adverse. However, during evidence, defendant no.1 stated that the State was the owner of the suit property and he claimed adverse possession against the State.
Mr. Tapas Kumar Bhattacharyya, learned Advocate appearing for the appellant submitted that the appellant claimed adverse possession against the original plaintiff only. So, according to the Article 65 of the Limitation Act, the period of limitation would be twelve years. He has further submitted that the State is not a party in the suit, the question of adverse possession against the State should not be considered in this case.
As discussed earlier, there is no specific averment in the written statement of the appellant regarding the person against whom he claimed adverse possession at the time when his alleged possession became adverse. The manner of hostile possession has not also been pleaded and all those ingredients are essential to prove a claim of adverse possession. It has not been specifically pleaded in the written statement that the State of West Bengal is a necessary party in the suit. So the suit cannot be treated as bad for non-joinder of necessary party.
The claim of the appellant in the suit as stated in his written statement was that about 22/23 years ago from the filing of the suit, the suit property was a jungle and he on his own, cleared the jungle and started residing in it, constructing a small dwelling house thereon. He denied the original plaintiff's claim of allotment of the suit property in her favour by the State of West Bengal through registered deed. But the said registered deed was produced and marked exhibit -1 in the Trial Court. So, the onus lied upon the appellants to prove the essential ingredients of acquisition of title by adverse possession, but neither such ingredients have been properly stated in the written statement, nor they were stated by the appellant during his evidence.
7
Although, not stated in the written statement, but during his evidence, the appellant clearly stated that the State was owner of the suit property and he claimed adverse possession against the State. According to Article 112 of the Limitation Act, the period for adverse possession is 30 years. The appellant himself claimed in the written statement that he was in the possession of the suit property for about 22/23 years and during his evidence he claimed possession in the suit property for 25 years. So, according to the appellant's own claim, he was not in possession to the suit property for 30 years. So, the claim of adverse possession against the State, has no legal basis. That apart, the essential ingredients of adverse possession have neither been pleaded in the written statement nor explained by the appellant during his evidence.
The Courts below, especially the Trial Court, has discussed in detail the respective cases of both the parties, in respect of the title and possession over the suit property and came to the conclusion that the original plaintiff was the legal owner of the suit property. All findings of the Courts below are based on evidence on record and any such findings do not suffer from any gross illegality or perversity. In the circumstances, there is no scope to interfere with any finding or decision of the Courts below in this appeal. The appeal therefore fails.
Accordingly, the second appeal being S.A. 431 of 1999 is dismissed on contest with costs. The judgments and decree of the Courts below are affirmed.
For the reasons stated the CAN 8988 of 2015 is also dismissed.
Order of stay, if any, passed in this appeal is vacated.
After the above order is passed the learned Advocate, Mr. Tapas Kumar Bhattacharyya appearing for the appellant prays for stay of the operation of the judgment and order.
Learned Advocate, Mr. Pratik Kumar Bhattacharyya appearing for the respondent, opposes the prayer.
Considered.
I find no justified reason to allow such prayer. The prayer is rejected. Return the LCRs along with a copy of this judgment to both the Courts below. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
8 (Tapash Mookherjee,J.) 9