Gauhati High Court
On The Death Of Nagendra Mallik @ ... vs Smti Meneki Das And 5 Ors on 10 June, 2015
Author: A K Goswami
Bench: A K Goswami
RSA 13/2004
BEFORE
HON'BLE MR JUSTICE A K GOSWAMI
10.6.2015
Heard Mr. P.K. Kalita, learned counsel for the appellants. Also heard Mr. A. Iqbal,
learned counsel for the respondent Nos. 1, 2 and 3. None appears for the other
respondents.
2. This appeal is preferred against the judgment and decree dated 14.8.2003 passed by the learned Civil Judge (Senior Division) No. 2, Guwahati in Title Appeal No. 62/1999 affirming the judgment and decree 9.11.1999 passed by the learned Civil Judge (Junior Division) No. 1, Guwahati in Title Suit No. 175/1992 dismissing the suit of the plaintiff.
3. The plaintiff sought for declaration that he had become the owner of the suit land by right of adverse possession and legitimately acquired title to the suit land and for recovery of khas possession by evicting the defendants from Schedule B land; confirmation of possession over the suit land; permanent injunction; etc.
3. On the basis of the pleadings, the learned trial court framed the following issues:
"1. Whether the suit is maintainable in its present form?
2. Whether there is cause of action for the suit?
3. Whether the suit is barred by limitation?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the plaintiff's possession over the suit land was adverse to the defendants and whether he acquired right, title and interest over the suit land by virtue of his adverse possession for more than the statutory period?
6. Whether the plaintiff had been dispossessed by the defendants from the suit land?
7. Whether the plaintiff is entitled to get decree as prayed for?
8. To what relief if any, the parties are entitled?"
4. Issue Nos. 5 and 6 were decided against the plaintiff and accordingly the suit was dismissed.
5. The learned lower appellate court concurred with the findings of the learned trial court and dismissed the appeal.
6. This appeal was admitted to be heard by an order dated 17.2.2004, on the following substantial questions of law:
"1. Whether the appellant is entitled to decree over the suit land by right of adverse possession?
2. Whether the decision of the learned court below that the plaintiff/appellant failed to establish acquisition of title by adverse possession is based on no evidence and/or improper appreciation of evidence?"
7. In Gurdw ara Sahib Vs. Gaon Panchayat Village-Cirthala and anr ., reported in (2014) 1 SCC 669 a question had arisen as to whether declaration of ownership of land on the basis of adverse possession can be sought by the plaintiff and the question was answered in the negative by the Apex Court.
8. In the said case, the plaintiff/appellant claimed ownership by adverse possession on the ground that it was in possession of the land in dispute for sufficiently long period which fact had been established and therefore, the suit cannot be dismissed. The Apex Court held that even if the plaintiff is found to be in adverse possession it cannot seek a declaration to the effect that such adverse possession had matured into ownership and only if proceedings are filed against the appellant and the appellant is arrayed as defendant then it can use this adverse possession as a shield/defence.
9. Admittedly, the suit of the plaintiff was for a declaration that the plaintiff had become owner of the suit land by right of adverse possession. The suit for declaration of title on the basis of adverse possession is not maintainable as adverse possession can be used as a shield and not as a sword.
10. In view of the above, the substantial question of law is answered against the appellants/plaintiff. In view of determination of substantial question No. 1 substantial question No. 2 is rendered redundant.
11. In view of the above finding, I find no merit in this appeal and the appeal is dismissed. No cost.
12. The Registry will send back the records.
JUDGE Madhu