Gauhati High Court
Page No.# 1/2 vs Farman Ali And 10 Ors on 17 February, 2025
Page No.# 1/20
GAHC010205262012
2025:GAU-AS:1616
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/110/2012
NURUL ISLAM and 2 ORS.
S/O LATE AHMMAD ALI
2: ABDU MANNAN
S/O MD. GUMAR ALI
3: ABDUL KHALEQUE
S/O MD. GUMMAR ALI
ALL ARE RESIDENTS OF PASCHIM DABALIAPARA
MOUZA-GHILAZARI
P.S. and DIST. BARPETA
ASSAM
VERSUS
FARMAN ALI and 10 ORS.
S/O LATE NUR MOHAMMAD
2:ABDUL JAYNUL
S/O LATE SHAMSHER ALI
3:SAJEDA BEGUM
D/O LATE SHAMSHER ALI
4:LALSAN ALI
S/O LATE SHAMSHER ALI
5:SIRAJ ALI
S/O LATE SHAMSHER ALI
6:MOHAR ALI
S/O LATE SHAMSHER ALI
Page No.# 2/20
ALL ARE RESIDENTS OF VILL. DHAKILIAPARA
P.S. and DIST. BARPETA
ASSAM.
7:HAJARAT ALI
S/O LATE SOWAN FAKIR
8:AFAJUDDIN
S/O LATE SOWAN FAKIR
9:TAIZUDDIN
S/O LATE MOKADAS ALI
10:OSMAN GONI
S/O LATE KUDDUS FAKIR
ALL ARE RESIDENTS OF VILL. DHAKALIAPARA
MOUZA-GHILAJARI
P.S. and DIST. BARPETA
ASSAM
Advocate for the Petitioner : MR.B BANERJEE, MR.D F A AHMED,MR.J LASKAR
Advocate for the Respondent : MRM H AHMED, MS.N SULTANA,FOR CAVEATOR
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT
17.02.2025 Heard Mr. D. Mazumdar, learned Senior Counsel assisted by Mr. D.F.A. Ahmed, learned counsel for the appellants. Also heard Mr. M. Ahmed, learned counsel for the respondents.
2. This appeal, under Section 100 of the CPC, is directed against the judgment and decree dated 03.04.2012, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 19/2011.
3. It is to be noted here that vide impugned judgment and decree dated 03.04.2012, the learned Civil Judge, Barpeta ('first appellate Court', for short) Page No.# 3/20 had decreed the appeal by setting aside the judgment and decree dated 04.02.2011, passed by the learned Munsiff No. 1, Barpeta ('trial Court', for short), in Title Suit No. 23/2006, by which the suit of the plaintiffs/respondents herein was dismissed.
4. The background facts, leading to filing of the present appeal, are briefly stated as under:
"The respondents herein as plaintiffs instituted a suit, being Title Suit No. 23/2006, before the learned Munsiff No. 1, Barpeta for a decree of declaration of right, title and interest and khas possession of the suit land with cost and other reliefs. The plaintiffs' case is that a plot of land measuring 2 bighas 2 kathas 11 lechas, covered by Dag Nos. 148, 149 and 150, under Periodic Patta No. 101(new), originally stood in the name of Suban Fakir and Nur Mamud who had equal share thereon. They were in peaceful possession of their respective shares of the aforesaid plot of land measuring 1 bigha 1 katha 11 lechas, but, the share of Nur Mamud, which is the suit land specifically described in Schedule-'B' of the plaint, measuring 1 bigha 1 katha, covered by Dag Nos. 148 and 149, under Periodic Patta No. 101, after his death one Ahmed Ali had mutated his name in place of Nur Mamud on 13.03.1975, by right of inheritance without the knowledge of the legal heirs of Nur Mamud and said Ahmed Ali is neither related to Nur Mamud nor to the legal heirs of Nur Mamud and after the death of Ahmed Ali, the defendant No. 1, Nurul Islam had mutated his name in place of his father Ahmed Ali on 30.03.1995, by way of inheritance though he was not related to Nur Mamud nor he had possession of the Schedule-'B' land. And as such, he is not entitled to get mutation by right of inheritance in place of Nur Mamud and the mutation Page No.# 4/20 orders dated 13.03.1975 and 30.03.1995, according to the plaintiffs are illegal mutation orders and liable to be declared as illegal. Thereafter, on 16.10.2005, on the strength of illegal mutation, the defendant No. 1, along with some anti-social elements came to the suit land and dispossessed the plaintiffs' from the suit land forcefully and though the plaintiffs requested the defendants to vacate the suit land, the defendants paid no heed to the same. And being aggrieved, the plaintiffs' had instituted the title suit before the learned Munsiff No. 1, Barpeta.
The defendants' had contested the suit by filing written statement. Their stand is that there is no cause of action, the suit is barred by limitation under Sections 58/64/65 of the Limitation Act, the jurisdiction of the Court to proceed with the suit is also barred under Sections 39/50/154 of the Assam Land and Revenue Regulation, 1886 and the suit is bad for non-joinder and mis-joinder of necessary parties and it was undervalued. Their further stand is that Nur Mamud had transferred the suit land to Ahmed Ali at a consideration of Rs. 90/- orally and put Ahmed Ali in exclusive possession thereof and thereafter, mutated the land in the name of Ahmed Ali as mark of the transfer, which has been described in the jamanbandi of Periodic Patta No. 101 of village Dhakaliapara as per order of the SDC, Barpeta, dated 13.03.1975 and after the death of Ahmed Ali, it was mutated in the name of his son Nurul Islam and it was inserted in the chitha, vide order of the SDC, Barpeta dated 30.03.1995. Thereafter, Ahmed Ali had also given some land to his other brothers such as Gumar Ali and Tarik Hussain and after amicable partition of the property among the brothers, the land covered by Dag No. 148, covered by Periodic Patta No. 101, fell in the share of Gumar Ali and after his death, the defendant Page No.# 5/20 Nos. 2 and 3 are in possession of the same even though their names had not been mutated, and therefore, it was contended to dismiss the suit.
Upon the aforementioned pleadings of the parties, the learned trial Court had framed the following issues:
1. Whether there is cause of action for the suit?
2. Whether the plaintiffs' suit is barred under the provision of Assam Land and Revenue Regulation?
3. Whether the plaintiffs have right, title and interest over the suit land?
4. Whether the mutation orders dated 13.03.75 & 30.03.1995 passed by the Revenue authority are illegal and liable to be set aside?
5. Whether the plaintiffs are entitled for the decree of 'khas' possession of the suit land?
6. Whether the plaintiffs are entitled for the decree as prayed for in the suit?
7. To what other relief or reliefs the parties are entitled?
Thereafter, before the learned trial Court the plaintiffs' had examined as many as three witnesses and had exhibited one certified copy of the jamabandi and the defendants had also examined three witnesses and exhibited five numbers of documents, being Ext. A, B, C, D and E. And thereafter, considering the evidence and the documents so placed on record, the learned trial Court had dismissed the suit of the plaintiffs'.
Being aggrieved, the plaintiffs' had preferred an appeal, being Title Appeal No. 04/2009, before the learned Civil Judge, Barpeta and the learned Civil Judge, Barpeta had formulated one point for determination which is read as under:
Page No.# 6/20 Whether the impugned judgment and decree had been passed erroneously without proper appraisement of evidence on record and is not legally sustainable?
Thereafter, hearing both the parties, the learned first appellate Court had allowed the appeal by setting aside the judgment and decree, dated 19.12.2008, and remanded the matter back to the learned trial Court invoking the jurisdiction under Order 41 Rule 23A of the CPC to frame an additional issue as under:
1.(a) Whether the defendants have been possessing the suit land adversely to the plaintiffs for a statutory period of 12 years, which has the effect of extinguishing the title of the plaintiffs by the operation of the Section 27 of the Limitation Act?
Thereafter, the learned trial Court had framed an additional issue and afforded opportunity of being heard to both the parties and after hearing both the parties, again dismissed the suit of the plaintiffs.
Being aggrieved, the plaintiffs again preferred an appeal, being Title Appeal No. 19/2011, before the learned Civil Judge, Barpeta and thereafter, hearing both the parties, the learned Civil Judge, Barpeta (first appellate Court) had allowed the appeal granting the following reliefs to the plaintiffs:
(a) Plaintiffs have right, title and interest over the B schedule land.
(b) The plaintiffs are entitled for recovery of khas possession of the schedule B land by evicting the defendants or any other persons claiming through them.
c) A permanent injunction is granted against the defendants restraining them from entering into the suit land after recovery of khas possession in due process of law.
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d) Plaintiffs are entitled for correction of the records of right by getting their name mutated and by deleting the name of the defendants.
e) Plaintiffs are also entitled for partition of the schedule B land through collector, Barpeta in accordance with provision of ALRR.
f) Plaintiffs are also entitled for cost of the suit from the defendants.
Being aggrieved, the defendants as appellants have preferred this second appeal under Section 100 of the CPC challenging the correctness or otherwise of the judgment and decree dated 03.04.2012, passed in Title Appeal No. 19/2011, passed by the learned first appellate Court."
5. Thereafter, this appeal is admitted on the following substantial question of law:-
Whether the First Appellate Court was justified in reversing the judgment and decree of the trial court holding that the defendants have failed to prove the question of extinguishment of title of the plaintiffs under Section 27 of the Limitation Act, 1963?
6. Mr. Mazumdar, learned Senior Counsel for the appellants submits that the plaintiffs in the plaint admitted about mutation of the suit land by Ahmed Ali on 13.03.1975 and thereafter, his son Nurul Islam mutated his name in place of his father on 30.03.1995 by way of inheritance. However, the suit was filed in the year 2006, only, though the dispossession was allegedly done on 16.10.2005 and as such, in view of Section 27 of the Limitation Act, 1963, the title of the plaintiffs over the Schedule-'B' land stood extinguished. Mr. Mazumdar further submits that the plaintiffs' as respondents' admittedly left the village where the suit land is situated and now living at Kirkira village, located at a distance of 8- 10 miles away from the suit land and they were never in possession of the suit Page No.# 8/20 land.
6.1. Mr. Mazumdar also submits that the defendants/ appellants herein, are in possession of the suit land adversely to the plaintiffs' the factum of which is apparent from the words 'exclusively' and 'completely' used in the written statement and though the other plea of the defendants was that their predecessor in interest namely, Ahmed Ali had purchased the suit land by paying a sum of Rs.90/ being the price of the same and an unregistered deed was also executed to that effect and on 13.03.1975 his name was mutated and the defendants had acquired the title by way of inheritance, such contradictory pleas are permissible in view of decision of Calcutta High Court in the case of Aniruddha Ghosh and Anr. vs. Somnath Ghosh, reported in (2022) 0 Supreme(Cal) 760.
6.2. Further, Mr. Mazumdar submits that the learned trial Court, having considered all the aspects of the matter, had rightly arrived at that finding and thereafter, dismissed the suit of the plaintiffs and as such, the impugned judgment and decree passed by the learned first appellate Court is not sustainable, and therefore, it is contended to set aside the same. In support of his submission, Mr. Mazumdar has referred to the following decisions:-
(a) Usha Balasaheb Swami and Ors. vs. Kiran Appaso Swami and Ors., reported in (2007) 5 SCC 602.
(b) Collector of Bombay vs. Municipal Corporation of the City of Bombay and Ors., reported in (1951) SCC 987.
(c) Achal Reddy vs. Ramakrishna Reddiar and Ors., reported in (1990) 4 SCC 706.
7. Per contra, Mr. Ahmed, learned counsel for the respondents submits that Page No.# 9/20 the appellants herein, as defendants could not prove oral sell of the suit land to the father of the defendant No. 1 and admittedly, there was no registered sale deed and their initial possession was not related to any legally admissible document. Mr. Ahmed also submits that though a claim was being made that the defendants had acquired title by way of adverse possession, yet, there was no such pleading not to speak of any proof to support the said claim. It is the further submission of Ahmed that the finding of the learned trial Court in respect of Additional issue No. 1(a), is perverse as the plea of adverse possession was not there in the written statement and it is contradictory also and having not been pleaded and proved, the finding so recorded by the learned trial Court in this regard is illegal, arbitrary and perverse. Further, Mr. Ahmed submits that adverse possession and legal title cannot be pleaded together and that the learned first appellate Court had rightly decreed the suit in favour of the plaintiffs' and no interference of the same is required in this second appeal by this Court. In support of this submission, Mr. Ahmed has referred to the following decisions:
(i) Bangalore Development Authority vs. N. Jayamma, reported in AIR 2016 SC 1294.
(ii) D.N. Venkatarayappa and Anr. vs. State of Karnataka and Ors., reported in (1997) 7 SCC 567.
(iii) Deva (dead) thr. LRs vs. Sajjan Kumar (dead) by LR.s, reported in AIR 2003 SC 3907.
(iv) Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale and Ors., reported in (2009) 12 SCC 101.
(v) Government of Kerela and Anr. vs. Joseph and Ors., reported in 2023 0 AIR(SC) 3988.
(vi) Annasaheb Bapusaheb Patil and Ors. vs. Balwant alias Page No.# 10/20 Balasaheb Babusaheb Patil (dead) by LR.s and Heirs and Ors., reported in (1995) 2 SCC 543.
(vii) Mohan Lal (deceased) through his LR.s Kachru and Ors.
vs. Mirza Abdul Gaffar and Anr., reported in (1996) 1 SCC 639.
8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the memo of appeal and the substantial question law and also gone through the impugned judgment and decree, dated 03.04.2012, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 19/2011 and the judgment and decree dated 04.02.2011, passed by the learned Munsiff No. 1, Barpeta, in Title Suit No. 23/2006.
9. It appears that the substantial question of law, so framed here in this appeal, revolves around Section 27 of the Limitation Act, which provides for extinguishment of right to property. The Section reads as under:-
"27. Extinguishment of right to property.--
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
10. It is to be noted here that the period prescribed for recovery of possession of the suit land as per Article 64 of the Limitation Act is 12 years.
11. In the case in hand, the learned trial Court, while dealing with the issue No. 1(a), held that the defendants had taken a plea that Late Nur Mamud had sold away his landed property measuring 1 bigha 1 katha, covered by Dag No. 148 and land measuring 1 katha 15 lechas covered by Dag No. 149 to Ahmed Ali, orally, in the year 1975 and gave possession of the same and thereafter, Page No.# 11/20 Ahmed Ali had mutated his name over the purchase of land on 13.03.1975 and since then, the family members of Ahmed Ali had been possessing the said land and so there is no possession of legal heirs of Late Nur Mamud and after the death of Ahmed Ali, Nurul Islam had mutated his name over the suit land and now, partition was affected among the brothers of Ahmed Ali i.e. Gumar Ali and Tarik Hussain and thereafter, their names were mutated over the said plot of land.
11.1 The learned trial Court also held that to substantiate their plea, the defendants' side had examined D.W.1 Nurul Islam, who, in his evidence-on- affidavit had reiterated the same facts as mentioned in their written statement and also exhibited one unregistered sale deed as Ext.A, which reveals that the suit land was shown sold away by the legal heirs of Late Nur Mamud and therefore, the same cannot be accepted and trusted at this moment, but, D.W.1, during his course of cross-examination, reiterated that they were in possession of the suit land since 1975 and denied the dispossession of the plaintiffs from the suit land, with effect from 16.10.2005. D.W.2 - Akmot Ali is also the witness of the unregistered katcha sale deed and in his evidence he had corroborated the evidence of D.W.1. And D.W.3, Abdul Mannan stated that he is in possession of the suit land along with Abdul Khaleque and the said fact stood corroborated from the report of the earlier Presiding Judge of the learned trial court, who had visited the suit land in local inspection and found Abdul Khaleque and Abdul Mannan in possession of the suit land. Besides, P.W.2 Motleb Ali and P.W.3 Nazumuddin had also admitted that Abdul Mannan and Abdul Khaleque is in possession of the suit land by constructing their dwelling houses.
11.2 The learned trial Court further held that Ext.1, the certified copy of the Page No.# 12/20 jamabandi of the suit land reveals that the name of Ahmed Ali was mutated over the land covered by Dag No. 148 as legal heir of Late Nur Mamud and there is no mutation over the land covered by Dag No. 149, and against the name of all the legal heirs of Nur Mamud are mutated over the land covered by Dag Nos. 149 and 150 in place of Nur Mamud, which indicates that Ahmed Ali's name was mutated as legal heirs of Nur Mamud, even though said Ahmed Ali was not related to Nur Mamud, which also shows that the mutation order passed in favour of Ahmed Ali is illegal.
11.3 Thereafter, the learned trial Court had arrived at a finding that from the evidence of P.W.(s) could not be established that they have been dispossessed by the defendants, rather it is established that Abdul Mannan, Abdul Khaleque are in possession of suit land and the P.W.(s) could not say how they have entered into the suit land. The learned trial Court also found that the defendants are in possession of the suit land for about 55 years and during that period, the plaintiffs had never raised any objection of possessing the suit land by the defendants who had admitted during cross-examination that they started living at Kirkira village after 5 years of death of their father and at the time of death of their father, the P.W.1 was 15 years old and he also admitted that his mother and elder brother, namely, Rashid also died at village Kirkira.
11.4 Thereafter, the learned trial Court had arrived at a finding that the defendants are in possession of the suit land continuously and the possession was exercised as a right for a period exceeding the statutory period and that the defendants had possessed the suit land adversely to the plaintiffs for a period of 12 years, which had the effect of extinguishing the title of the plaintiffs' by the operation of Section 27 of the Limitation Act and thereafter, decided the issue in affirmative and dismissed the suit of the plaintiffs.
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12. On the other hand, the learned first appellate Court, while dealing with the issue in the impugned judgment and decree had held that a cursory reading of the written statement of the defendants, particularly paragraph No. 14, there is no specific claim that they are possessing the land adversely against the interest of the plaintiffs or the other minimum requirements of adverse possession i.e. three nec 'nec-vi-nec', 'nec clana' and 'nec precario' i.e. possessing the land openly, notoriously and continuously, and that the defendants had failed to prove their lawful purchase and having no express or implied pleading of possession in the land openly with hostile attitude, held that the defendants failed to make out a case of long possession into a case of adverse possession, and that the plaintiffs' brought in their evidence and pleadings that they were dispossessed by the defendants on 16.10.2005 and on being asked to vacate the suit land, they failed to vacate the same and also held that the evidence of the plaintiffs remained unshaken and reliable and they established their possession till 2005 and as such, it had been held that the defendants had failed to prove their plea of purchase as they are not legally allowed to take the plea of adverse possession, which otherwise also they had failed to prove, and that there is no question of extinguishment of title by operation of Section 27 of the Limitation Act and thereafter, decreed the suit in favour of the plaintiffs, after deciding the other issues in favour of the plaintiffs.
13. But, having examined the findings so recorded by the learned first appellate Court and also going through the written statement of the defendants, which is enclosed at page 106 of the memo of appeal, and having perused the same with the assistance of Mr. Mazumdar, learned Senior Counsel for the appellants, I find that the defendants/appellants herein had taken the plea of limitation in paragraph Nos. 1, 2, 6, 9, 11, 14(a) and 14(d). It is also stated in Page No.# 14/20 no uncertain terms that the defendants are in exclusive and complete possession of the suit land. For better appreciation of the fact, this Court deems it appropriate to reproduce the paragraph No. 14(d), herein below:-
"(d) That since 13-3-75 till the date of submission of the suit about more than 30 years have been passed as such the provision section 90 of the Evidence Act and Section 27 of the Limitation Act may be applicable and hence no type of demand of the plaintiffs for the landed property as claimed and stated in the Schedule 'B' can raise at all."
14. Thus, it appears that the finding of the learned first appellate Court that no such plea was taken by the appellants herein in the written statement before the learned trial Court is not based on materials on record and as such, the same is perverse.
15. It is fact that the defendants/appellants had taken two pleas. One relates to purchasing of the land by Ahmed Ali through oral transfer, by paying a sum of Rs.90/ and thereafter Ahmed Ali was put in exclusive possession of the suit land and the name of Ahmed Ali was mutated in the Chitha as a mark of transfer on 13.03.1975. And the other relates to exclusive possession of the suit land adverse to the interest of the plaintiffs' since 13.03.1975, for more than 30 years, in view of Section 27 of the Limitation Act, the right of the plaintiffs' over the suit land stands extinguished. No doubt these are two inconsistent pleas. But, in view of decision of Calcutta High Court in the case of Aniruddha Ghosh (supra), the defendants can take such an inconsistent and contradictory pleas. Mr. Mazumdar, the learned Senior Counsel for the appellant/defendants had rightly pointed this out at the time of argument and this court is inclined to record concurrence to the same.
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16. I have carefully gone through the decisions relied upon by Mr. Mazumdar, learned Senior Counsel for the appellants and I find that the same also strengthened his submission. In the case of Collector of Bombay (supra), in paragraph No. 17, Hon'ble Supreme Court had held as under:
"17. What, in the circumstances was the legal position of the respondent Corporation and its predecessor-in-title in relation to the land in question? They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent Corporation and its predecessor-in-title was that of a person having no nevertheless legal title but holding possession of the land under the colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor-in-title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor- in-title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Government's prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the government resolution as if a legal grant had been made to it. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Government's right to assess in excess of the specific limit established and preserved by the government resolution within the meaning of Section Page No.# 16/20 8 of Bombay Act 2 of 1876."
17. In the case of Achal Reddy (supra), in paragraph Nos. 9 and 10, Hon'ble Supreme Court has held as under:
"9. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate court as well as the second appellate court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent findings that the plaintiff had title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex. A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between July 10, 1946 and July 17, 1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the Page No.# 17/20 transferor in the property, and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.
10. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest him- self of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date Page No.# 18/20 of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamali v. Muthiah cannot, therefore, be doubted."
18. In the case of Usha Balasaheb Swami (supra), in paragraph No. 27, Hon'ble Supreme Court has held as under:
"27. Since we have already held that in the case of amendment of a written statement, the defendant is entitled to take new defence and also to plead inconsistent stand and in view of our discussions made herein above that by making the application for amendment of the written statement, admission was not at all withdrawn by the appellants nor a totally inconsistent plea was taken by the appellants in their application for amendment of the written statement, the High Court had failed to appreciate that by the proposed amendment, the appellants were not withdrawing their admission in respect of the half share in the ancestral property rather they only added that the plaintiff and defendant nos. 3 to 8 could be entitled to such share if they proved to be the legitimate children of Appasao (since deceased) who was entitled to half share in the property of late Veersangayya. That apart, it appears from the record that the written statement filed by the appellants was before the death of defendant no.1 (first wife of Appasao). After the death of defendant no.1, when plaintiff and defendant nos. 2 to 8 claimed themselves as heirs and legal representatives of defendant No.1, the appellants sought amendment of the written statement challenging the legitimacy of plaintiff and defendant nos. 2 to 8. In view of the discussions made herein above, we do not think that it was impermissible in law for the appellants to seek amendment of the written statement in the manner it was sought for."
19. In the case of Aniruddha Ghosh (supra), Calcutta High Court has held that:
"In a civil proceeding a defendant can take even inconsistent and contradictory plea in the same proceeding in support of his evidence."
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20. I have also gone through the decision referred by Mr. Ahmed, the learned counsel for the respondent/plaintiffs'. In the case of D.N. Venkatarayappa (supra), Hon'ble Supreme Court has held that:
"In the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
21. Since in the case in hand, there is specific plea in respect of the adverse possession and extinguishment of right of the plaintiffs, this Court is of the view that the decision of Hon'ble Supreme Court in D.N. Venkatarayappa (supra), would not come into the assistance of Mr. Ahmed, learned counsel for the respondents.
22. I have also gone through the other decisions referred by him and I find that the aforementioned cases proceed on their own facts and are distinguishable from the facts of the case in hand and as such, the same would not come into his assistance.
23. In the result, I find sufficient merit in this appeal and accordingly, the same stands allowed. The impugned judgment and decree dated 03.04.2012, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 19/2011, stands set aside and quashed. Consequently, the judgment and decree dated 04.02.2011 passed by learned trial court in T.S. No. 23/2006, stands restored.
24. In terms of above, this second appeal stands disposed of. Send down the record of the learned courts below with a copy of this judgment.
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25. The parties have to bear their own costs.
JUDGE Comparing Assistant