Tripura High Court
Md. Eklach Ali vs (A) Md. Manai Khan And Ors on 15 February, 2022
HIGH COURT OF TRIPURA
AGARTALA
RSA 21 of 2018
Md. Eklach Ali
S/o- Late Madrich Ali
resident of village - Ichai Lal Cherra,
P.S. - Kadamtala, P.O. - Kadamtala.
Dist: North Tripura
-----Appellant(s)
Versus
1(a) Md. Manai Khan and Ors.
Resident of Village - Ichai Lal Cherra, P.O. and P.S. - Kadamtala.
1(b) Md. Jafur Khan
Resident of Village - Ichai Lal Cherra, P.O. and P.S. - Kadamtala,
PIN - 799261, Dist. - North Tripura
1(c) Md. Hasib Khan
Resident of Village - Ichai Lal Cherra, P.O. and PS. -Kadamtala.
1(d) Md. Kayum Khan
Resident of Village - Ichai Lal Cherra, P.O. and PS. -Kadamtala.
All are sons of late Abdul Chalam
1(e) Mst. Jayada Begam
D/o Lat Abdul Chalam
1(f) Anowara Begam
D/o Late Abdul Ali,
W/o- Md. Matachin Ali
1(g) Hachina Bhanu
W/o- Mainul Haque,
1(h) Mst. Diluara Begam
D/o Late Mainl Haque
W/o Md. Abdul Jabbar
C/o- Mst. Hachina Bhanu
1(i) Rosna Begam
D/o- Late Mainul haque
W/o- Md. Ekram Ali
C/o- Mst. Hachina Bhanu
1(j) Md. Maina Miah
S/o- Late Anbar Ali
1(k) Amina Begam
D/0- Maina Miah
1(l) Md. Khairul Haque
S/o- Late Abdul Ali
Page 2 of 18
All are residents of Village - Ichai Lal Cherra,
P.O. and PS. -Kadamtala, PIN- 799261, District: North Tripura.
1(m) Rabia Begam
W/o- Md. Chayat Ali
of village - Sakaibari
PO- Sakaribari,
PS- Dharmangar, District: north Tripura
2(a) Mst. Khairun Nessa
Wife of Late Noor Miah
Resident of Village - Sanicherra,
P.S. - Dharmanagar, P.O. - Sanicherra, PIN- 799250,
District: North Tripura
2(b) Mst. Mairun Nessa
W/o- Late Yusub ali
Of Ichai Lal Cherra
PS- Kadamtala, PIN- 799261
Dist: North Tripura
2(c) Mst. Nebarun Nessa
W/o- Md. Chanu Miah, Village: Mahehpur,
PS: Maheshpur, PO: Kadamtala, PIN: 799261,
Dist: North Tripura
2(d) Mst. Fazira Begum
W/o- Md. Atahur Rehaman
Resident of Village - Nadiyapur,
P.S. - Churaibari, P.O. - Churaibari.
PIN: 799262, Dist: North Tripura
2(e) Mst. Acharun Nessa
W/o- Md. Achab Uddin
Resident of Village - Ichailal Cherra,
P.S. - Kadamtala, PIN: 799261,
Dist: North Tripura
2(f) Mst. Ajirun Nessa
W/o- Md. Abdul Majid
Resident of Village - Sakaibari, P.O. - Dharmanagar.
PIN: 799250, Dist: North Tripura
2(g) Banesa Begum
D/o- Late Madhrich Ali
Resident of village - Ichailal Cherra, P.S. - Kadamtala,
PIN: 799261, Dist: North Tripura
3. Md. Almach Ali,
S/o- Late Madrich Ali
Resident of Village- Ichailal Cherra,
P.S. - Kadamtala, P.O. - Kadamtala.
PIN: 799261, Dist: North Tripura
-----Respondent(s)
Page 3 of 18
For Appellant(s) : Mr. H. Laskar, Adv.
For Respondent(s) : Mr. S. Bhattacharjee, Adv.
Date of hearing : 14.02.2022.
Date of pronouncement : 15.02.2022.
Whether fit for reporting : Yes.
HON‟BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
This is an appeal under Section 100 of the CPC from the appellate decree dated 31.08.2017 passed by the District Judge, North Tripura, Dharmanagar in Title Appeal No. 7 of 2017 dismissing the first appeal preferred by the defendant No.2 appellant affirming the original decree dated 29th September, 2016 passed by the Civil Judge (Jr. Division) North Tripura, in Title Suit No.25 of 2014 decreeing the suit of the plaintiff.
[2] At the outset, the controversy that led to filing of the suit may briefly be introduced. The respondents herein instituted the original suit bearing Title Suit No.25 of 2014 in the Court of Civil Judge (Jr. Division), Dharmangar, North Tripura as Plaintiff impleading the father of the defendant No.2 appellant Md. Madrich Ali (now deceased), the appellant and his brother, Md. Almach Ali as defendants for declaration of her right, title and interest over the suit land measuring 1.30 acres described in Schedule "A" of the plaint, for perpetual injunction and also for recovery of khash possession. [3] The brief facts of the plaintiff‟s case is that she is the owner and possessor of the landed property total measuring about 1.30 acres under Mouja and Tehsil Ichailalcherra, allotted in her name vide Khatian Page 4 of 18 No.534 more specifically mentioned in the Schedule „A‟. The plaintiff was possessing the suit land prior to the allotment and developed the said suit land by plantation. After allotment of the suit land the record of rights was prepared in the name of the plaintiff vide khatian No.534. [4] The defendants on 31.01.2009 came to the plaintiff and started requesting to provide a small piece of land to stay for a period of 2/3 years till they can develop their own land and took permission to stay in that portion of the suit land by constructing a kachcha hut measuring 7 cubit x 14 cubits Ekchala with bamboo structure and a ekchala kitchen bamboo structure shed measuring 6 cubits x 7 cubits and the huts area of land measuring about 02 shatak which is specifically described in the schedule „B‟. On 02.02.2013 the plaintiff asked the defendants to vacate the suit land (schedule-„B‟) by removing the huts and taking away the remains of the huts from the suit land. As requested by the defendants some time to remove the huts to vacate the suit land, plaintiff on good faith she allowed six months time to them. After expiry of six months on 10.10.2013 when the plaintiff asked the defendants to vacate the suit land by removing the huts, the defendants denying the title of the plaintiff threatened the plaintiff and her sons from dire consequences, took place hot altercation between the parties, neighbouring people gathered and the defendants threatened the plaintiff and her sons with dire consequences. Having no alternative the plaintiff is compelled to file this instant suit against the defendants. The plaintiff prayed for declaration that the plaintiff has right, title, interest, over the suit land specifically described in the Page 5 of 18 schedule-A and a decree for perpetual injunction against the defendants his mea, agents from entering into the suit land specifically described in the schedule-C and for recovery of khas possession of the suit land specifically described in the schedule „B‟ by removing the belongings. [5] With due process defendants have appeared for contesting the suit and they filed their written statement jointly. In the written statement the defendants have specifically denied all the averments of the plaint and put forth a rival story. As per the defendants they are the peaceful possessors of the suit since long and in the year 1997 the defendants have purchased the said land measuring 1.30 acre from the plaintiff by executing an unregistered deed. Due to this deed they have become the owners of the suit land and have constructed their residential hut therein. At the time of the execution of the unregistered deed the plaintiff had promised the father of the defendants namely Md. Madrich Ali (since deceased) that she was unable to register the said deed as the land was allotted and without obtaining the permission from the DM and Collector she was not in a position to register the same in his favour. She promised to register the said deed after obtaining the aforesaid permission. Time went on passing but the plaintiff did not execute and register the sale deed in favour of Md. Madrich Ali (since deceased) despite of his several requests. On 15.01.1998 Md. Madrich Ali requested the plaintiff to execute and register the sale deed but she denied and rather threatened the said Madrich Ali. Md. Madrich Ali (since deceased) and the other defendants are possessing the suit and Page 6 of 18 denying the title and right of the plaintiff and then acquired the right, title and interest over the suit land by way of adverse possession. [6] The defendant-appellant herein filed the written statement. In the written statement so filed, it has been categorically stated by the defendant-appellant that the defendants were/are the peaceful possessor of the suit land since long and in the year of 1997. The defendants purchased the said land measuring 1.30 acre from plaintiff petitioner by executing an unregistered deed & become the owner and constructed their residential hut therein & stated residing in this hut. [7] At the time of purporting the said unregistered deed the plaintiff promised one Md. Madrich Ali (now deceased) father of the defendants to that she was unable to register the said deed as it was allottee land and without permission of D.M. & Collector she could not register the same in favuor of the one Md. Madrich Ali (now deceased) father of the defendants, but she would register with the said deed in favour of Md. Madrich Ai ( now deceased) with in short period of time obtaining the permission of DM & Collector. She also expressed that she had urgent need of money and for which taking permission for selling the said land is not possible within short period. [8] Subsequently, Md. Madhrich Ali (now deceased) time and again requested the plaintiff to execute and registrar the sale deed by obtaining proper permission from the concerned authority, but the plaintiff requested Md. Madhrich Ali (now deceased) to wait for some day. Lastly on 15.01.1998 the Md. Madhrich Ali (now deceased) requested the plaintiff for execution and registration of the sale deed Page 7 of 18 then the plaintiff uses filthy languages and insulted the Md. Madhrich Ali (now deceased) like anything for which hot altercation was there in between the plaintiff and Md. Madrich Ali (now deceased) father of the defendants. The plaintiff told that she with the help of her associate outstate the defendants by force and in respect of which the Md. Madhrich Ali (now deceased) told her that at any cost he would not hand over the suit land and on and from 15.01.1998. Md. Madhrich Ali (now deceased) & other defendants has been possessing the suit land denying the title and right of the plaintiff and then acquired right, title and interest over the suit land by way of adverse possession denying the title of the plaintiff.
[9] It is also stated in the written statement that the right, title interest, over the suit land is ripen by way of adverse possession in favour of the defendants. As such the plaintiff is not entitled to get any relief as prayed for.
[10] The appellant filed the suit in the trial court for recovering of possession of the following schedules.
Schedule -A All part and parcel of landed property measuring about 1.30 acres under Khatian No.534 pertaining to present CS Plot No. 2172/3152 corresponding to old C.S Plot No. 1566P under Mouja and Tehasil - Ichailalcherra. Bounded by-
North - Husain Miah, Madhrich Ali South - Madrich Ali and Askar Ali East - Govt. Khash lunga, Madrich Ali West- Tahir Ali Where in lies below mentioned schedule "B" and "C".
Schedule-B All part and parcel of landed property measuring about 0.02 acres under Khatian No.534 pertaining to present CS Page 8 of 18 Plot No. 2172/3152 corresponding to old CS Plot No. 1566P under Mouja and Tehasil Ichallcherra. Bouded by North- Plaintiff South - Madrich Ali East- Plaintiff West- Plaintiff Schedule -C All part and parcel of landed property measuring about 1.28 acres under Khatian No.53 pertaining to present CS Plot No. 2172/3152 corresponding to old CS Plot No.1566P under Mouja and Tehasil -Ichailalcherra. Bounded by -
North - Jusain Mian Madhrich Ali South - Madrich Ali, Askar Ali East - Govt. Khash lunga, Madrich Ali West- Tahir Ali.
[11] After considering the pleadings and submission of both sides, the trial court has framed the following issues for discussion:
(i) Whether the suit is maintainable in its present form and nature?
(ii) Whether there is any cause of action for filing of the instant suit?
(iii) Whether the plaintiff has right, title, interest and possession over the suit land?
(iv) Whether the deceased father of the defendants namely Md.
Madris Ali purchased the suit land from the plaintiff by way of an unregistered sale deed and thereafter said Madris Ali started possession the suit and by constructing dwelling hut?
(v) Whether the plaintiff is entitled to perpetual injunction against the defendants, their men and agents from entering into the C scheduled suit land?
(vi) Whether the plaintiff is entitled to recovery of Khas possession of the suit land described in schedule B of the plaint?
[12] While deciding the issue No. III, the trial court has observed that DW1 Eklach Ali has specifically deposed in his cross examination that the owner of the suit land is Mst. Amirun Necha. As DW 1 himself has admitted the title of the plaintiff over the suit land thus, there is no need to seek any further evidence in this regard. The defendants are in possession of the B scheduled suit land but their possession in not Page 9 of 18 supported by any valid title. Hence I find that the plaintiff has right, title interest and possession over A schedule suit land. [13] Further while deciding the issue No.(iv), it has been observed by the trial court that if it is an agreement for sale then also the possession of the defendants is not lawful as because as per Section 54 of the Transfer of the property Act a contract for sale doe not confer any title upon the prospective purchaser. Surprisingly the defendants have taken an alternative plea of adverse possession in order to defend their possession over the B schedule suit land but I fail to understand how suddenly the possession of the defendants has become averse when initially they were admitting the title of the plaintiff. In order to establish the plea of adverse possession the defendants need to establish that they were having the animus of denying the title of the plaintiff from the very beginning and their possession was hostile, continuous, uninterrupted and known by the world at large. Moreover, it is also necessary to establish in the Court what is the date of commencement of the adverse possession. But in this case, the defendants have failed to establish any of such essential elements of adverse possession and as such the defendants have failed to establish their plea of adverse possession as well.
[14] The trial court after having examined all the records so placed in the plaint and also after examining the written statement filed by the defendant-appellant, depositions of PWs and DWs in support of the claim, has observed by the decree dated 29.09.2016 as herein under:
Page 10 of 18
"In the result, the suit is decreed on contest with cost. It is declared that the plaintiff has right, title and interest over the „A‟ schedule suit land. A decree for perpetual injunction is granted in favour of the plaintiff restraining the defendants, their men and agents from entering into the „C‟ schedule suit land. A decree for recovery of khas possession is granted in favour of the plaintiff for evicting the defendants from the „B‟ schedule suit land by removing all obstructions at the cost of the defendants."
[15] Being aggrieved and dissatisfied with the judgment and decree passed in the original suit, the appellant herein preferred an appeal being case No. Title Appeal No.07 of 2017 in the court of the District Judge, North Tripura, Dharmanagar. The said court has observed by the order dated 31.08.2017 that the defendants did not call the scribe of the said unregistered deed in the witness box to prove its contents and so it is not ascertainable as to what was the intention of the parties at the time of execution of the said deed and whether it is a sale deed or an agreement to sale. Moreover, an unregistered sale deed is inadmissible in evidence in view of Section 49 read with Section 17 of the Registration Act. Moreover, in order to establish the plea of adverse possession the defendants need to establish that they were having the animus of denying the title of the plaintiff from the very beginning and their possession was hostile, continuous, uninterrupted and known by the world at large. More so, it is also necessary to establish that what was the date of commencement of the adverse possession. So, I find no ground in this appeal and also find no error in the judgment of lower court which needs any interference by way of this appeal and the same needs to be upheld.
Page 11 of 18
It was further observed by the order dated 31.08.2017 as follows:
"In the result, the appeal is dismissed being devoid of merit. The judgment and decree dated 29.09.2016 and 05.10 2016 respectively passed by Civil Judge (Junior Division), Dharmangar, North Tripura in Title Suit No.25 of 2014 whereby and where under Ld. Trial court has decreed the suit on contest is hereby upheld in toto."
[16] Being aggrieved by the said judgment and decree of the first appellate court dated 31.08.2017, the appellant herein has preferred this instant appeal under Section 100 of the CPC. At the time of admitting this appeal, the following substantial question of law was framed by this court by the order dated 28.01.2019.
"Whether the learned Courts below committed error of law by not considering the provision of doctrine of part performance under Section 53-A of the Transfer of Property Act in view of un-registered deed dated 31.03.1997 made by the plaintiff in Exb.‟A‟?"
[17] It is a case of the appellant-defendant that the plaintiffs (respondent herein) extended unregistered sale deed and in the evidence of the PW1 he has identified the signature and he was to be under possession long back during the process the specific sale deed which has been executed which and marked as Exbt-A2. Thus, he has further relied upon the judgment of the apex court in Mool Chand Makhru and Another vs. Rohan and Others reported in (2002) 2 SCC 612 under section 53 of the Transfer of Property Act, 1882 where the apex court has observed as under:
"11. Section 53-A provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract, taken Page 12 of 18 possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contact, and the transferee has performed or is willing to perform his part of the contract then he is entitled to protect his possession in respect of the property of which he was put in possession in part performance of the agreement to sell.
12. This Court in Nathulal Vs. Phool Chand, 1969 (3) SCC 120, while interpreting Section 53-A culled out the following conditions to be fulfilled for making out the defence of part performance to an action in ejectment by the owner, as under:
"9(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract."
After culling out the aforesaid conditions, it was held:
"If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
[18] In view of the above, he prayed to allow the appeal since they are holding the unregistered sale deed in favour of the defendant/appellant. The counsel for the respondents submits that the order passed by the trial court is well appreciated and the legal position has been upheld by the lower appellate court and prayed to dismiss the Page 13 of 18 present RSA. He further submits that the evidence of PW-1 in identifying the signature does not match. He has accepted the transaction which is contended by the defendant. In cross-examination of PW1, he has categorically stated after identifying the signature his mother/vendor has had the transaction with the defendant in respect of the some other paddy land but not the said land.
[19] The counsel for the appellant has relied on the evidence of PW1, PW 2 examined the PW2 who is one of the witnessee to the Abdul Jabbar Exbt A2.
[20] In the cross-examination of DW2, so called witnessee to the document, he identified his father name as Bapon Ullah, whereas in view of the cross-examination of the DW2 the name of Abdul Jabbar is shown as Rusun Ullah. Admittedly he is not the person who signed the witness to the document. And further submits through the section 53A of the TP Act was not held, plead to that effect. Defendant is silent in written statement in the suit of scheduled property and its extended boundary and sale condition and also denied the execution of any sale deed since the suit Exbt A2 is not a sale deed. Counsel for the respondent submits that it is a kind of deed of declaration of unregistered land and prayed to dismiss the appeal confirming the orders passed by the trial court.
[21] Originally the suit is filed for declaration of the title by the plaintiff who is said to be owner of the suit land. The plaintiff in support of their filed document Exbt A2 and examined Khayrul Haque (PW1) Majar Ali (PW2), Asfar Ali (PW3) and contended that the defendants Page 14 of 18 have unauthorisedly holding some portion of the suit land. The defendant in support of their case examinee witnesses Eklas Ali (DW1), Abdul Jabbar (DW2) and also exhibited some documents. The trial court framed issues and accordingly the trial court has decreed in favour of the plaintiff. Further, the defendant preferred an appeal and in the said appeal, the lower appellate court dismissed the appeal and confirmed the order of the trial court. This court has framed substantial question of law. The counsel for the appellant has denied that Section 53A and the same is extracted herein under:
"53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
[22] The present 53A has been inserted in the TP Act in the year 2001. Whereas the Exbt A2 (sale deed) deed of declaration is instituted in the year 1997. The said document Exbt.2 which is said to be deed of Page 15 of 18 declaration categorically cannot be treated as sale deed as denied by the appellant.
Exbt.A2 Executed in favour of : Md. Madaris Ali s/o Lt Hazi Yakub ali, resident of vill-Ichailalchara, pargana, Dharmanagar, District:
North Tripura.
Executed by: Mst. Amirum Nessa, W/o-Lt. Abdul Ali, resident of Vill_Ichalilalchara, Pargana- Dharmanagar, District-
North Triprua This deed of declaration is executed to the following effect:
I, being in urgent need of cash, have delivered the possession over the total area of „bagan tila‟ class of land measuring 1.30 acre (One acre and thirty decimals) appertaining to previous plot No.1566, present Plot NO.2172/3152, recorded in Khatian NO.534, situated within mouja & tehsil - Ichailalacherra, PG- Dharmanagar by way of sale after receiving the ascertained consideration value of Rs.17,000/- (Rupees Seventeen Thousand) only in cash. Since the land was got through allotment settlement, I could not execute deed of the same. On procuring order from the authority in favour of making sale of the land, I will execute valid sale deed for the same.
I do, hereby, execute the deed of declaration voluntarily and in sound knowledge and mind.
The End 31.03.1997 Witeness
1. Khairul Hoque Scribe
2. Abdul Jabbbar Abdul Mannan [23] The Said Exbt A2 sale deed for deed of declaration is marked with objection under Section 17 Indian Registration Act. A document which is shown as the transaction of the immovable property need to be executed and duly registered before the competent authority. This court has no hesitation to say the sale deed of declaration Exbt A2 cannot be treated and cannot be equated with sale Page 16 of 18 deed. This court has no hesitation to say that it was a promise signed by the declarant/executant with conditions for obtaining the NOC from the District Magistrate and Collector or any other competent authority to present with the registration. No document with ambiguity cannot be given legal importance and cannot be given the capable value.
[24] The plaintiff when he has instituted the above suit nothing prevented the defendant to file any counter case or to file separate suit for specific performance or under any provision of law and unregistered legal proceeding to protect his so called right, title and interest. If the defendant is placing likeliness on Exbt A2 and claims legitimate possession in garb of unregistered (deed of declaration Exbt A2) and on the other hand the appellant-defendant has advanced his argument on adverse position. This to allow the argument is open to the defendant. In view of the angel of legitimate position under garb Exbt A2, the appellant has to approach the appropriate court under law and seeking appropriate relief basing on strength of the ExbtA2. If the appellant- defendant is relying on adverse position he has to comply with guidelines framed by the apex court decision in Karnataka Board of Wakf vs. Govt. of India reported in (2004) 10 SCC 779 wherein it is pointed out that the person who claims to be under adverse position is to specify mode of position, details of other particulars of the property and seek appropriate relief. The appellant has failed to do so. The requisites to prove Adverse Possession as contemplated in the above judgment are as under:
Page 17 of 18
The relevant portion of Karnataka Board of Wakf (supra) is reproduced herein under:
"11...Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
Further in Karnataka Board of Wakf. Vs. Anjuman-E-Ismail Madris-Un-Niswas reported in (1999) 6 SCC 343, the apex court has also expressed finding with regard to interference of High Court under Section 100 of CPC which reads herein under:
"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record."
[25] The evidence of DW2 who said to be witnessee to the Exbt A2 appears to be that he is not the same person as said (supra) witness who filed chief examination-in-chief is shown son of Bapon Ullah in the Page 18 of 18 examination he has deposed as son of Rusun Ullah. In view of the contrary statement made by the DW 2, this court is not inclined to accept the evidence of DW 2. Viewed from the ExbtA2 do not contain the specific boundary and schedule of the property. Proof of receipt of cash of Rs.17,000/- has not been filed before the court by the appellant before the trial court. Viewed from angle in view of the above discussion, this court is not inclined to pass order in favour of the appellant.
[26] In view of the above discussion, the judgment and decree of the lower appellate court dated 31.08.2018 and judgment and decree of the trial court dated 29.09.2016 stands affirmed and accordingly the present appeal is dismissed.
Hence the appeal is dismissed.
JUDGE Dipak