Patna High Court
Jamuna Devi vs Girija Devi And Ors. on 26 November, 1982
Equivalent citations: AIR1983PAT77, AIR 1983 PATNA 77, 1983 BBCJ 29 (1983) PAT LJR 158, (1983) PAT LJR 158
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Mohan Sharma, J.
1. This appeal arises out of a suit filed by the appellant for eviction of respondent No. 1 from a house in Gaya town.
2. The house in question had been purchased by one Munder Kuer in 1917. According to the plaintiffs case, she was the concubine of the plaintiff's Mamu. She executed a deed of gift in 1947 in favour of the plaintiff but did not deliver possession and continued to stay in the house. In 1951, she filed a suit which was registered as Title Suit No. 102 of 1951 challenging the gift in favour of the present plaintiff on the allegation that it was brought in existence as a result of fraud and was inoperative. After the filing of the plaint, she executed another deed of gift on 16-11-1951 in favour of Basanti Kuer, defendant No. 1 in the present suit and Basanti Kuer was added as the second plaintiff in the suit. In 1952 Munder Kuer died and the suit was prosecuted by Basanti Kuer. On trial, it was dismissed in 1954, but defendant No. 1 continued in possession. She filed a title appeal which was dismissed on 8-7-1955. She then unsuccessfully came to this Court in S. A. 1216 of 1955. In spite of the plaintiff consistently succeeding in three Courts, the possession of the house remained with Basanti Kuer. The present suit was, therefore, filed on 12-1-1960 for her eviction.
3. In her written statement, Basanti Kuer reiterated the stand taken by her and Munder Kuer in the earlier suit and asserted title. She also pleaded limitation.
4. The trial Court agreed with the defence that the suit was barred by limitation and dismissed the suit. The plaintiff appealed. The learned subordinate Judge who heard the appeal disagreed with the trial Court and decreed the suit holding that the defendant No. 1 was in possession for a period less than 12 years and she was not entitled to tack the possession of Munder Kuer for the purpose of acquisition of a title based on adverse possession. The defendant, then, filed a second appeal in this Court which was numbered as S. A. 641 of 1965, and was heard by Mr. Justice Raj Kishore Prasad and was allowed by the judgment under appeal. He, however, granted leave to appeal under Clause 10 of the Letters Patent Accordingly, this appeal has been filed.
5. The learned single Judge relied on the decisions in Ratan Kumar Mahto v. Kangal Kumar Mahto (AIR 1919 Pat. 176), Bibhuti Bhusan Modak v. Girish Chandra Pal (AIR 1950 Pat 191), Jatu Das v. Mt. Sulochana Mundain (AIR 1957 Pat. 37) and Secretary of State v. Debendra Lal Khan (AIR 1934 PC 23) and held that the defendant was entitled to tack the possession of Munder Kuer to her possession and the two periods together exceeded 12 years. The suit was accordingly dismissed.
6. Mr. Krishna Prakash Sinha, appearing in support of the appeal, contended that where a trespasser in adverse possession of a property dies and another trespasser comes in possession, the rightful owner must in the eye of law be presumed to have come in possession of the property at least for a moment. Consequently, if a number of trespassers remain successively in possession of a property but each one for a period less than 12 years, the title of the rightful owner would not be lost. He relied on the observations in Janakinath Saha v. Baikuntha Nath Chollak (AIR 1922 Cal 176). I am afraid, the argument in the general form as it has been pressed, is not sound and cannot be accepted. It has been firmly established that the periods of adverse possession of two or more trespassers can be tacked together if one trespasser derives his interest from the other. Mr. Sinha emphasised the fact that since Munder Kuer was not left with any title in the property after her gift to the plaintiff in 1947, the defendant Basanti Kuer cannot be assumed to have derived any title from Munder Kuer and she, therefore, cannot be held to have derived any interest in the property to enable her to tack Munder Kuer's possession to her own possession. It is true that if we come to the question of title in the house, the defendant must be held to have derived none, but this cannot defeat free right to tack the two periods of possession. The question of lacking of possession can arise only where the trespassers nave no tide. The fact that Munder Kuer was left with no title to transmit to Basanti Kuer in 1951 is, therefore, not helpful to the plaintiff. It was rightly observed by a learned single Judge of this Court in Ratan Kumar Mahto v. Kangal Kumar Mahto (AIR 1919 Pat 176) that the possession of a trespasser, although without title, confers upon him a devisable and transferable interest in toe property and his devisee can maintain an action against another trespasser; and further, that a devise of a trespasser can tack on the period of his devisor's possession to that of his own to resist a suit for ejectment.
7. The other two decisions of this Court referred to in the judgment of Mr. Justice Raj Kishore Prasad have followed the ratio in Secretary of State v. Debendra Lal Khan (AIR 1934 PC 23) and fully support the view he has taken.
8. In Janakinath Saha v. Baikuntha Nath Chollak (AIR 1922 Cal 176) the trespasser was claiming possession independently and not through the person who was in possession earlier. In those circumstances, the observations on which Mr. Sinha has relied were made. As in the present case, the claim of Basanti Kuer has been through Munder Kuer, the Calcutta decision is distinguishable and the Privy Council and Patna decisions mentioned above apply. I, therefore, hold that the learned single Judge of this Court rightly held that the defendant was entitled to tack to her possession the adverse possession of Munder Kuer. Since the possession of Munder Kuer became adverse in 1947, the present suit having been filed in I960 must be dismissed on the ground of limitation.
9. Mr. Sinha next argued that since the defendant in her written statement has not pleaded of having derived any interest in the house from Munder Kuer, she cannot be allowed to tack the earlier possession on the principle stated above. He placed the written statement before us in detail and urged that the pleading amounts to an assertion of the defendant's possession in her own right for about 40 years and since the Courts have not accepted her possession before the death of Munder Kuer, she must fail. It is true that the allegations in the written statement are not set out with clarity and there is scope for pressing the argument as indicated, but a close perusal of the written statement specially paragraphs 10 to 1-5 thereof leads to the conclusion that the defendant has advanced her claim to the house on the basis of the ineffective deed of gift executed by Munder Kuer in her favour and her possession thereunder. In paragraph 11 she said "that Suit. Munder Kuer executed a registered deed of gift in favour of this defendant and this defendant was impleaded a co-plaintiff on 16-11-1951". In paras 10, 13, 14 and 15, she has stated about her residence in the house, but not in her own independent capacity but as a dependant or licensee of Munder Kuer. Mere residence and possession are not synonymous. For finding out the true nature of the defence, the entire written statement has to be examined and if that it done, the inference is that the defendant has pleaded the possession of Munder Kuer till her lifetime and thereafter her possession on the basis of the gift mentioned in para 11. The second argument addressed on behalf of the plaintiff must also, therefore, be rejected.
10. In the result, the appeal fails and is dismissed; but in the circumstances without costs.
S. Sarwar Ali, C.J.
I agree.