Gauhati High Court
Narendra Mazumdar vs Sushil Beri And Ors on 22 December, 2016
Equivalent citations: AIR 2017 GAUHATI 32, (2017) 2 GAU LR 742 (2017) 1 GAU LT 400, (2017) 1 GAU LT 400
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 147/2013
Narendra Mazumdar ...... Appellant
-Versus-
Sushil Beri & others ..... Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellants : Mr. M Talukdar
Advocate
For the Respondents :
Date of Hearing : 22.12.2016
Date of delivery of
Judgment and Order : 22.12.2016
JUDGMENT AND ORDER (ORAL)
Heard Mr. M Talukdar, learned counsel appearing on behalf of the appellant.
2. This second appeal is against the judgment and decree dated 23.05.2011 and 06.06.2011 respectively passed by the learned Additional District Judge (FTC) No. 1, Kamrup at Guwahati in title appeal 106/2006 thereby upholding the Page 1 of 11 RSA 147/2013 judgment and decree dated 22.02.2005 passed by the learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati in title suit No. 328/2002.
3. The appellant, as the plaintiff, preferred title suit No. 328/2002 and stated in his plaint that a plot of land measuring 2K 19L under Dag No. 177 of KP patta No. 56, Dag No. 182 of KP patta No. 83 of village Khanapara under Mouza Beltola in the district of Kamrup was originally possessed by the plaintiff since last 40 years and the said landed property has been described in schedule A, B and C of the plaint. Out of the said land, schedule B land is covered by Dag No. 177 of KP patta No. 56 and the area of the said B schedule is 2K 9L. The plaintiff-appellant further pleaded that he has been paying land revenue and other taxes in respect of the A schedule land whereupon there are RCC building, Assam type house, Jirat etc. since last 40 years and the said RCC building is assessed under GMC Holding No. 594 and he got the electricity connection in the said premises. The land described in schedule C of the plaint originally belonged to Sri Sushil Ch. Das and thereafter the said land was mutated in the name of Sri Gautam Kr. Das by way of gift and there was a Raiyat/tenant, namely, one Swarupa Kairy in the said land since long who transferred the C schedule land to the plaintiff-appellant in the year 1973 and since then the plaintiff-appellant possessed the said C schedule land without any interference from the original pattadar. Further it is pleaded that one Sri Sushil Beri was trying to dispossess the plaintiff appellant from C schedule land on the pre-text that he purchased the same by registered sale deed, who initiated a proceeding under section 145/146 of the Code of Criminal Procedure (Cr.P.C) before the Executive Magistrate and in that proceeding the schedule C land was attached and possession of the disputed Page 2 of 11 RSA 147/2013 land was declared in favour of the plaintiff appellant. Further, allegation of the plaintiff appellant is that while he was possessing the said schedule C land, the defendant respondent No. 2, namely, Capt. Satya Deep Saikia tried to dispossess the plaintiff appellant from the C schedule land on 15.12.2002, 16.12/2002 and 18.12.2002 and collected materials for construction thereon. Hence, the suit was filed for the following reliefs:-
(a) the Schedule-C suit land of the plaintiff may kindly be decreed.
(b) the plaintiff's right, title, interest and adverse possession may kindly be decreed and his unflinching right may kindly be decreed and affirmed.
(c) the perpetual and permanent injunction may kindly be granted not to disturb his right, title and possession and interest which may not be disturbed by the defendants or anybody else.
(d) a precept may kindly be sent to the Revenue Court for Mutation on the suit land and issue Patta accordingly in his name.
(e) the cost of the suit may kindly be decreed against the
defendants.
(f) any other relief or reliefs to which the plaintiff are entitled
in law and equity.
4. The respondent defendants No. 1 and 2 filed their written statement and contested the suit. However, though there were other proforma defendants but they never contested and/or filed any written statement and the suit proceeded ex parte against them.
5. The respondents No. 1 and 2 pleaded that the plaintiff appellant has no cause of action to file the suit, the same is not maintainable, the suit was barred by the principle of waiver, estoppels, acquiescence, that the suit is barred by law Page 3 of 11 RSA 147/2013 of limitation etc and denied the case of the plaintiff appellant. The respondent defendants pleaded in the written statement that the defendant respondents No. 1 and his brothers acquired possession and ownership over the land covered by Dag No. 182 of KP patta No. 83 including C schedule land by virtue of a registered sale deed and subsequently sold portion of the said land to various purchasers and lastly they sold 2K 13L of land including the schedule C land to the wife of defendant respondent No. 2. After receiving possession thereof, the wife of the respondent defendant No. 2 started to fill up the schedule C land by earth and the plaintiff appellant had claimed the land on false ground of adverse possession. As per the pleading of the respondent defendants, the plaintiff had not acquired any right, title and interest over the suit land by way of adverse possession or hostile possession nor was the suit land ever possessed by the plaintiff appellant at any point of time and as such the respondent defendants prayed for dismissal of the suit.
6. Upon the pleadings, the learned trial court framed the following issues:-
1. Whether the suit is maintainable in the present form?
2. Whether there is cause of action for the suit?
3. Whether the suit is barred by limitation?
4. Whether the plaintiff is entitled to right, title, interest and adverse possession over the schedule C land?
5. Whether the plaintiff is entitled to get permanent injunction?
6. Whether the plaintiff is entitled to any relief?
7. During the trial, the plaintiff appellant side adduced 2 witnesses including the plaintiff appellant while the defendant respondents did not adduce any evidence. The learned trial court after hearing the arguments of both the parties, dismissed the suit of the plaintiff. Thereafter the plaintiff appellant preferred title Page 4 of 11 RSA 147/2013 appeal No. 106/2006 challenging the judgment and decree dated 22.02.2005 passed by the learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati in title suit No. 328/2002 which also dismissed by the learned first appellate court i.e. the court of learned Additional District Judge (FTC) No. 1, Kamrup at Guwahati vide judgment and decree as referred to above.
8. Being aggrieved, by the judgment and decree passed by the learned first appellate court as referred to above, the plaintiff appellant has preferred this second appeal.
9. Mr. Talukdar, learned counsel for the appellant, submits that the learned first appellate court refused to consider the point that the plaintiff appellant had been possessing the suit land described in schedule C of the plaint since the year 1973 and had accordingly acquired right, title and interest thereon by way adverse possession. Mr. Talukdar further submits that the judgment passed by the learned courts below are perverse, inasmuch as, the Exhibit 10 (copy of the final order passed in case No. 9M/1986, a proceeding under section 145/146 of the Cr.P.C.) was not considered in the true perspective and under such circumstances, there arose substantial question of law to be formulated to decide the points raised herein.
10. Perused the judgment passed by the learned first appellate court. The learned first appellate court came to the finding that the substantial point for determination in the first appeal was whether the trial court committed wrong in holding that the plaintiff appellant has failed to establish his adverse possession over the suit land which this court finds to be correct from the submission made by the learned counsel, Mr. Talukdar. The learned first appellate court while Page 5 of 11 RSA 147/2013 deciding the first appeal correctly held that the ratio of law in a case where there is a plea of adverse possession by one party, the burden shifts on him to prove that his possession is not only hostile and notorious but also for a period exceeding 12 years without any interruption and when a person claims adverse possession he should show all the facts necessary to constitute adverse possession like (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the fact of possession was known to the other party, (d) how long his possession continued and (e) his possession was open and undisturbed. Keeping the ratio of law as aforesaid, the learned first appellate court came to the conclusion that the plaintiff appellant admitted the fact that the land described in schedule C of the plaint originally belonged to Sri Sushil Ch. Das and thereafter the said land was mutated in the name of Sri Gautam Kr. Das by way of gift. On the other hand, the plaintiff appellant based his title over the suit land by virtue of adverse possession, claimed that one Swarupa Kairy, a Raiyat/tenant of the said land, transferred the C schedule land to the plaintiff appellant in the year 1973 and since then the suit land was under
the occupation of the plaintiff appellant. However, the learned first appellate court found that the plaintiff appellant failed to produce any document showing that the suit land was transferred to the present appellant plaintiff by Swarupa Kairy in the year 1973. Further, the learned first appellate court considered Exhibit-10 wherefrom the learned first appellate court discussed that the plaintiff appellant was found in possession of the suit land at the time when the proceeding under section 145/146 of the CrPC was initiated and concluded that the Exhibit-10 does not necessarily mean that the plaintiff appellant has been Page 6 of 11 RSA 147/2013 occupying the same since the year 1973. It was also held by the first appellate court that though the plaintiff appellant claimed that he occupied the suit land since the year 1973 after transfer of the same by the tenant/Raiyat, Swarupa Kairy, there was no evidence to show that the plaintiff appellant had been possessing the suit land from the year 1973. The learned first appellate court took note of the pleadings of the plaintiff appellant that the defendant respondent No. 1 Sri Sushil Berri having tried to dispossess the plaintiff appellant from the C schedule land on the pretext that he purchased the same by a registered sale deed the plaintiff appellant initiated a proceeding under section 145/146 of the CrPC before the learned Executive Magistrate in the year 1986 and came to a finding that overt act done by the plaintiff appellant against the interest of the true owner could be computed since the year 1986 and the plaintiff appellant filed the suit on 24/12/2002. Thus, the learned first appellate court came to the finding that the plaintiff appellant while claiming the suit land by virtue of adverse possession failed to prove by adducing sufficient evidence at the point of time when his possession became adverse against the interest of the original pattadar. Thus, finally the learned first appellate court concluded that as the plaintiff appellant initiated a proceeding under section 145/146 of the CrPC before the learned Executive Magistrate in the year 1986, so the overt act done by the plaintiff appellant in pursuance of his possession over the suit land was only from last 1986 and from that date his possession had become hostile to its true owner and accordingly as the plaintiff appellant filed a suit on 24.12.2002, the learned first appellate court found that the plaintiff appellant did not possess the suit land for a continuous period exceeding 12 years before filing the suit. Page 7 of 11 RSA 147/2013 Thus, the learned first appellate court concluded that the learned trial court did not commit any error while discussing issue No. 4 holding that there is no cogent and reliable evidence to infer the adverse possession of the plaintiff appellant over the suit land for a continuous period exceeding 12 years and accordingly the plaintiff appellant could not acquire right, title and ownership by virtue of adverse possession.
11. The law so far the adverse possession is concerned is almost settled. It is the party who takes the plea of adverse possession and trying to defeat the title of the true owner, it is for him to plead and establish all the facts necessary to constitute adverse possession and mere possession, however, long does not confer possessory title to the said person unless some overt act done in pursuance of such possession. Perused the plaint and from paragraph 7 it can be inferred that the plaintiff appellant purchased the schedule C land from one Swarupa Kairy who was a tenant/raiyat in the year 1973 and thereafter the plaintiff appellant possessing the said portion of land along with his Miyadi/Khiraj periodic patta land without any interference from the original pattadar. From paragraph 8 of the plaint it can be inferred that in the year 1986 one Sushil Berri (respondent defendant No. 1) while trying to dispossess the plaintiff appellant from the C schedule land, the plaintiff resisted whereafter Mr. Berri started a proceeding under section 145/146 of the CrPC which was registered as Case No. 9M/1986. In the said proceeding it was held (through Exhibit-10) that the plaintiff appellant was possessing the C schedule land.
12. From the pleadings of the plaint, it cannot be concluded that the plaintiff appellant had claimed his possession over the suit land on the basis of adverse Page 8 of 11 RSA 147/2013 possession, inasmuch as, his entry to the schedule C land was on the basis of a sale from the said tenant and he was possessing the same along with his Khiraj periodic patta land and no date of entry over the C schedule land is also pleaded.
Rather, it is the pleading that since the year 1973 the plaintiff appellant has been possessing the C schedule land along with his Khiraj periodic patta land without any interference from the original pattadar, namely, Sushil Ch. Das/ Gautam Kr. Das. It is also apparent from the plaint that the defendant respondent No. 1 after purchase of the schedule C land tried to dispossess the plaintiff from the said land. Having failed to do so, respondent defendant No. 1 instituted a proceeding under section 145/146 of the CrPC which was registered as Case No. 9M/1986. Thus, till the institution of the said proceeding as per the pleadings of the plaintiff appellant, the original owner never interfered with the possession of the plaintiff appellant over the C schedule land. The date of purchase by the respondent defendant No. 1 of the C schedule land has not been pleaded in the plaint and accordingly when the said defendant respondent No. 1 tried to dispossess the plaintiff appellant, he resisted and if any hostility is to be attributed on the part of the plaintiff appellant, the same would be from the date of action on the part of the defendant respondent No. 1 to dispossess the plaintiff appellant. Mere possession, however, long does not confer possessory title to the said person unless some overt act is done in pursuance of such possession. Now, from the pleadings, it is very much apparent that the plaintiff appellant except action of resistance against the defendant respondent No. 1, has failed to show that prior to the year 1986 there was any hostile overt act against the true owner with regard to his possession which is one of the ingredient to obtain title on the basis Page 9 of 11 RSA 147/2013 of adverse possession. In fact, the requisite period of 12 years coupled with the various ingredients required to prove/show the possession of the plaintiff appellant was adverse to the real owner is totally missing so far the pleadings are concerned. The learned first appellate court rightly held that the requisite time period of 12 years along with requisite ingredients as aforesaid are missing and as such the fact that the plaintiff appellant was possessing the schedule C land in hostility and/or to the adverse interest of the defendant respondent is not tenable.
13. In the case of Annakili v. A. Vedanayagam and others reported in 2007 AIR SCW 6892, the Hon'ble Supreme Court held as follows:
"22. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possession must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title"
14. From the discussions made hereinabove, the plaintiff appellant had failed to plead the aforesaid ingredients in order to prove his adverse possession over the C schedule land and that too, against the true owner, defendant respondents No. 1 and 2.
Page 10 of 11 RSA 147/2013
15. To be a substantial question of law, there must be first, a foundation for the question laid in pleadings. Secondly, question should emerge from sustainable findings of facts arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties. Now, as the pleadings of the appellant plaintiff is devoid of any of the ingredients supporting his claim of adverse possession over the C schedule land, under such circumstances, there arose absolutely no substantial question of law as pressed by the learned counsel for the appellant and as such this second appeal is accordingly dismissed.
No order as to costs.
JUDGE BiswaS Page 11 of 11 RSA 147/2013