Calcutta High Court
Smt. Basanti Devi And Anr. vs Fulchand Mondal And Anr. on 17 May, 2006
Equivalent citations: AIR2007CAL8, AIR 2007 CALCUTTA 8, 2007 (2) AJHAR (NOC) 376 (CAL), 2007 (1) AKAR (NOC) 127 (CAL), 2007 A I H C (NOC) 38 (CAL), (2007) 2 ICC 216, (2006) 2 CAL LJ 622
Author: Pratap Kr. Ray
Bench: Pratap Kr. Ray
JUDGMENT Pratap Kr. Ray, J.
1. The second appeal arose out of challenge of judgment and decree dated 29th November, 2000 and 14th December, 2000 respectively passed by learned Court of Civil Judge (Senior Division) at Kalna, District - Burdwan in Title Appeal No. 5 of 2000 affirming the judgment and decree dated 30th September, 1999 passed by learned Court of Civil Judge (Junior Division) at Kalna, District Burdwan in Title Suit No. 375 of 1996. The present appellants who are the plaintiffs of the suit have filed this second appeal. Under Order XLI, Rule 11 of Code of Civil Procedure, at the time of admission hearing of the appeal on 29th August, 2001, the Division Bench (Co-ram : Tarun Chatterjee & Asit Kumar Bisi, JJ.)(as their Lordships then were at the material time) admitted the appeal for hearing on framing the following substantial questions of law:
(i) Whether in view of the admitted fact that the defendants themselves had made out case that they were inducted as licensees by the vendors/plaintiffs/appellants and in view of the case made out by them that there was an agreement for sale of the suit property and entered into by the vendors /plaintiffs/appellants, the Courts below erred in law substantially by not holding that the defendant/defendants could not acquire the right, title and interest of the suit property by way of adverse possession.
(ii) Whether, in the facts and circumstances of the case, the Courts below erred in law substantially by not holding that the case of adverse possession on the basis of the defence of the defendants/respondents could not at all be found.
2. The case of the plaintiffs in the suit was to this effect:
R.S. Khatian No. 675 Dag No. 1543 measuring 3 or 2 cottahs with the homestead under mouza and P.S. Kalna, Dist. Burdwan, is the suit property, which belonged to Jitendranath Saha, Upendranath Saha and Surendranath Saha. Renubala Dasi purchased such property in 1961 by a registered sale deed. In course of enjoying ownership and possession therein she gifted the same to daughter Rekharani Dasi by executing registered deed of gift in 1984. Rekharani started living therein ever since. As she had been deserted by husband and she had good relationship with the defendants (hereinafter called respondents) she granted them licence to reside in the suit property and they resided therein. Subsequently, Rekharani changed her place of residence and sold the suit property to the appellants by virtue of registered sale deeds and prior to such sale the respondents along with Sadhan Mondal (non-suited) who has also been residing as licensee under Rekharani undertook that they would quit and vacate the suit property one month after the sale in favour of the appellants. But the defendants resiled from their commitments. As they did not quit and vacate the property despite several rounds of talk and made preparation for making new construction in the suit properties with a view to change its nature and character, the plaintiffs had to file M.P. No. 408 of 1996 under Section 144 Cr.P.C. before Id. S.D.E.M. Kalna. After institution of such proceeding the plaintiffs sent notice to the defendants through their Id. Advocate terminating the licence. They received such notice by signing A.D. cards. On intervention of the local persons and the order of the Id. S.D.E.M. the defendants could not raise any construction in the property. Since they have not vacated the suit property despite termination of their licence and also as the plaintiffs apprehended irreparable loss and injury if the defendants succeeded in effecting change in the property they filed the suit for recovery of Khas possession of the property.
3. It was the case of the defendant of the suit to this effect:
Defendants contested the suit by filing a joint written statement. Challenging the maintainability of the suit on technical grounds viz. of plaintiffs and their predecessors being out of possession for over 12 years and for non filing of the suit within the prescribed time limit the suit barred by limitation, want of cause of action, non payment of proper Court fee, non-joinder of necessary party, applicability of the principle of estoppel, waiver and acquiescence, mis-description of the suit property and denying the material allegations of the plaintiffs, defendants contended that they resided at Talbona. Grandson of Renubala being familiar with them he acted as intermediary between them and Renubala in the matter of sale of the suit property in their favour and he brought them to the suit property. He had discussion with his grandmother who agreed to transfer two sataks of land situated at the eastern side of Renubala's Ghar and the defendants agreed to purchase the said land at Rs. 1,000/- out of which Rs. 500/- was paid to her. The defendants acquired possession in the property about 20 years ago. Renubala assured them that she would execute and register deed of sale in their favour on receipt of the remainder consideration. Defendants constructed separate Ghars in the suit land and began residing therein. They approached Renubhala to execute the deed in their favour on acceptance of the balance consideration. But she declined to execute the deed on the plea of increase in the value of the land. Defendant No. 2 constructed a BEDI and a CHALA for Goddess Kali 16 years ago to the contiguous east of his Ghar and has been worshipping Goddess Kali every year. According to them Renubala caused the breach of con-, tract by not accepting the balance amount. The defendants have been residing and performing puja uninterruptedly, peacefully and nobody has ever raised any objection against the defendants use of property. The transfer of the property by Renubala by executing a deed in favour of her daughter in 1984 is a mere paper transaction. She never had possession in the property possessed by the defendants. She had no right to gift the property. Rekharani had never acquired possession therein. She had no interest in the property. The defendants do not reside in the suit property on the licence of the plaintiffs predecessors. Besides their own interest, the defendants have been in, continuous, uninterrupted possession of the suit property for over 12 years to the knowledge of Renubala and Rekharani. Therefore, they have acquired good title therein. Thus they prayed for dismissal of the suit.
4. The Trial Court framed the following issues:
1. Has the plaintiff any cause of action to sue?
2. Is the suit maintainable in its present form?
3. Is the suit bad for defect of parties?
4. Is the suit barred by limitation?
5. Is the suit barred by the principles of estoppels, waiver and acquiescence?
6. Is the suit bad for want of proper Court fees?
7. Is the plaintiff entitled to get a decree as prayed for?
8. To what other relief/reliefs, if any the plaintiff is entitled.
5. Issue Nos. 1, 2, 3 and 6 aforesaid were decided in favour of the plaintiffs of the suit i.e. the present appellants.
6. Issue No. 4 decided against the plaintiffs on holding suit was not maintainable as it was filed for declaration of the title on recovery of the possession beyond the time limit of 12 years in terms of Article 65 of the Limitation Act. Learned Trial Court held that the suit was filed beyond 12 years on holding, inter alia, that Renubala, the original owner of the property transferred the suit property to Rekharani, her daughter on 11th May, 1984 by a registered deed of gift marked as Exhibit 8 and as soon as such deed of gift was executed, the licence as granted by the original grantor Renubala in favour of the defendants of the suit was revoked with effect from 11th May, 1984 and since that period as the defendants are retaining possession of the suit property as a. trespasser accordingly they have acquired a title by adverse possession in the suit property.
7. Issue Nos. 5, 7 and 8 was decided in. favour of the defendants by holding that the defendants failed to substantiate his defence about agreement to sale of the suit plot and making of part payments thereof to retain the possession of the suit premises, but defendants as a trespasser retained the possession on the basis of the plaintiffs case that they were licensee. The Trial Court further held that as permanent structure was made expending the money, the licence was irrevocable and the plaintiffs were estopped from disturbing the same and as a resultant effect the possession as retained after expiry of licence as soon as deed of gift was executed by Renubala in favour of her daughter, Rekharani, the defendants in the status of trespasser in the suit land acquired a title. With that findings and observations, the relief as prayed for by the plaintiff was refused.
8. Hence, on the aforesaid findings and observations, the Trial Court dismissed the suit.
9. An appeal was laid by the present appellants being Appeal No. 5 of 2000 assailing the judgment and decree of Trial Court aforesaid. The Appeal Court in the judgment and decree under appeal held to this effect, namely, (1) occupation of the property by the respondents as trespasser for more than 12 years by itself entitled them to gain title in the suit property, even if there was no issue framed on adverse possession by the Trial Court, as the same did not cause any prejudice to the plaintiffs in view of the evidence as laid by the parties and accordingly the findings of the Trial Court about the title of the defendants in the suit property by way of adverse possession was justified; (2) as Rekharani, the daughter of Renubala, the original owner got the property by deed of gift executed on 11th May, 1984 even if the registration was completed subsequently but in calculating the relevant date to count the limitation under Section 65 of the Limitation Act, the same would start from 11th May, 1984 and as such, the suit was time barred being instituted after 12 years when already the defendants as trespasser for more than 12 years acquired a right; (3) as a construction was made, which was permanent in nature as appears from the report of the local Commissioner, their possession should not be disturbed, more particularly, for the reason that the defendants are in possession of the suit premises as trespasser for more than' 12 years and thereby acquired a title by dint of adverse possession though the defendants case as made out, namely, agreement to sale was the right of entry to the suit premises, failed and though the defendants did not take any steps to perfect their title praying mandate from theCourt under specific performance of contract either against Ranubala or Rekharani during such periods.
10. Learned Advocates for the appellants of this second appeal submits that when the Initial entry having been admitted by the defendants in their written statement as well as in the evidence on the strength of the right in terms of oral agreement to sale upon part payment of Rs. 500/-, there was no scope to reach a finding of adverse possession as a means to acquire the title of the property as the sine qua non of the applicability pf the principle of adverse possession, namely, the entry must be hostile and not permissive, which both the Courts below failed to take notice from the evidence on records and thereby on the basis of the material evidence on records came to an absolutely erroneous conclusion, which is touching the jurisdiction point itself as it is falling within the domain of non-exercise of proper jurisdiction vested under the law.
11. Learned Advocates for the appellants further has submitted that Easement Act, 1882, has no applicability in the State of West Bengal and as a resultant effect, the principle of irrevocable licence as applied in substance not to decree the suit in favour of the plaintiff is contrary to the legal provision of law. To substantiate the point that the adverse possession concept and the permissive possession concept both are contradictory to each other and destructive of the material evidence of both the said concept, reliance has been placed to the judgment passed in the cases Viswanatha Achari v. Kanakasabapathy ; Mohan Lal (Deceased) through his LRs Kachru v. Mirza Abdul Gaffar ; Gaya Parshad Dikshit v. Dr. Nirmal Chander and Anr. and Ejas Ali Qidwai and Ors. v. Special Manager, Court of Wards, Balrampur Estate and Ors. . So far as non-applicability of Easement Act, reliance has been placed to the judgment passed in the case Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. .
12. Learned Advocates for the appellant further has submitted that Article 65 of the Limitation Act had no applicability as in view of the defence case they were in permissive possession in view of claim that right to possess derived lawfully from oral agreement to sale. As such, the period of 12 years as counted with effect from the execution of the gift deed by Rekharani on 11th May, 1984, has no applicability to attract said Article.
13. Learned Advocate for the respondents, however, has opposed the appeal by contending, inter alia, that the plaintiff failed to prove their own case as per their pleading about possession of the defendants as licensee and revocation of such, hence, judgment and decree passed by both the Courts below were proper and right. It has been further alleged that as the defendants are in possession of the property for a considerable period, equity demands that they should be allowed to retain their possession.
14. Having regard to the rival contention of the parties and the substantial question of law as framed aforesaid, the issue could be resolved on interpretation of the statutory provisions of the law on reflection of the material evidence on records and the case of the plaintiffs and defendants.
15. Since both the Courts below considered the matter in the angle of defendant's right to possess the land on applying the principle of adverse possession and thereby came to a concurrent finding that the possession was hostile by constructing their own houses by mud built wall and thatched roof made of straw, for a continuous period of more than 12 years and thereby acquired a right to possess but evidence on record speaks that initial entry was on alleged right derived from oral agreement to sale first and second substantial questions of law were framed accordingly.
16. It is the case of the defendants in the written statement as well as in the evidence as laid that their entry in the suit plot during the period when Renubala was holding the right, title and possession of the suit plot was not permissive but on the strength of the right in view of oral agreement to sale of the said plot for which the defendants paid Rs. 500/- as part payment of consideration money out of full consideration money as was fixed to the extent of Rs. 1000/-. It is the further case of the defendant that Renubala, the predecessor in title of suit plot of appellant refused to execute the sale deed despite they were ready to perform their contractual obligation. Renubala with an oblique purpose to deprive them by not executing any sale deed transferred the property by way of gift to her daughter, Rekharani on 11th May, 1984 and that deed accordingly was a paper transaction and ineffective and Rekharani never acquired any right, title and possession of the property. As a resultant effect the appellants also did not accrue any right, title and possession.
17. Second limb of defence of defendant was the defence on adverse possession due to possession of the land for more than 12 years on hostile action within the knowledge of the predecessor in title of the property of the appellant and thereby acquiring of a right to possess the land.
18. It is a settled law that if someone wants to take a plea of adverse possession, it implies that initial entry was not under any right to possess the property but it must be commenced in wrong and is maintained against the right. The basic ingredient of adverse possession theory is that the possession must be in hostile without any right of first entry thereon. From the evidence as laid by the defendant No. 1 himself and his witnesses as well as from the admission in the written statement it is the categorical case that the initial entry was not in wrong but it was in terms of the agreement to sale as orally made on part payments of consideration money, i.e. as of right. Hence, from the own admission of the defendants in their written statement as well as in evidence since the defendants themselves made out a case that their entry was not wrong, not permissive but under a right, surely the findings of the learned Court below that by adverse possession for more than 12 years the defendant acquired an independent right to possess the land is contrary to the basic principle of the law on adverse possession. Reliance may be placed to the judgment passed in the case Achal Reddy v. Ramakrishna Reddiar and Ors. , wherein Paragraph 10, the Apex Court had discussed the point of law elaborately. For effective adjudication of this appeal, the same is quoted herein below (Para 9):
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 acknowledgment 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 himself 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 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.
10. It is also an admitted position as it appears from the evidence laid by the defendants and their witnesses and also the written statement as filed that initial entry in the suit plot was in terms of oral agreement of sale on part payments of consideration money and as such, it was not a permissive possession but a possession with a right expecting to have the execution of the sale deed to perfect the title. Relevant evidence on record reads such:
Deposition of witness No. 1 for the defendant, Mr. Mritunjay Bairagya.
I am one of the defendants in this suit.... We had got this property from Renubala Ghosh. There was an agreement between Renubala Ghosh and us and as per agreement I paid Rs. 500/- and when we were ready to pay the balance amount, Renubala Ghosh refused to accept the same, by stating that, the price has gone up, she would not accept the amount. There was no discussion with Renubala's daughter regarding the sale of the suit plot.
Not a fact that, we are residing in the suit plot by permissive possession....
XXX...I cannot file any papers regarding the said agreement between Renubala and us as it is lost. I cannot produce any paper to show that we constructed the house on our own on the suit plot. Renubala used to reside in the suit plot till death along with her daughter and grandchildren. We have not sent any notice to Renubala to accept the balance amount agreed upon nor we have filed any suit against Renubala for refusing the balance amount nor we had sent any lawyer's notice to Renubala.
I had stated to my lawyer that there was an agreement between Renubala and me to sell the suit plot. We were ready to purchase the plot from Renubala and we had stated the same to Renubala. I came to know about 10/12 years back that Renubala had transferred the suit property and till date, we have not filed any legal proceeding against them.
Not a fact that, there was no agreement between us and Renubala. Not a fact that, we have not constructed any house on the suit plot. Not a fact that, we have not been performing any Kalipuja for last 12/14 years. Not a fact that, we are not the owners of the suit property. Not a fact that, we are in permissive possession of the suit property. Not a fact that, our claim is false.
Deposition of witness No. 2 for the defendant, Jogesh Bapari.
...The defendants had paid Rs. 500/- to Renubala Ghosh about 15/16 years back. There was an agreement between them that Renubala will sell the property for Rs. 1000/- and subsequently after receiving the balance amount she would register the deed.
XXX.... I cannot say the month, date and year on which the agreement between the defendant and Renubala had taken place, none else was present at the time of agreement between Renubala and the defendants excepting me....
Not a fact that, there was no agreement between the defendants and Renubala. Not a fact that, the defendants are residing there by permissive possession. Not a fact that, I am deposing falsely.
Deposition of witness No. 4 for the defendant Anil Haider ...
XXX...Renubala Ghosh & we constructed out house together. I cannot say when the other houses were constructed. I also cannot say how many rooms are there in every house. I have come to depose on the saying of Mritunjay. Not a fact that the defdts do not perform Kalipuja there. Not a fact that the defdts did not construct their house. 1 cannot say the date when the defdts. constructed their house. Not a fact that the defdts. are in permissive possession of Renubala.
20. As it is admitted not only in the written statement but in the evidence by the defendant himself and his witnesses that entry to the suit plot was on the basis of the oral agreement of sale no part payments of consideration money to the tune of Rs. 500/-, now the issue to be considered as to whether their possession would be deemed as adverse possession to oust the claim of the appellant who purchased the property by valuable consideration in terms of the deed of sale executed and registered by Rekharani. From the aforesaid admission of the defendants, it appears that during the tenure of Renubala, in terms of the oral agreement of sale, they were holding the property in contemplation of execution of a regular registered sale deed, which clearly leads to only conclusion that the possession of the defendants throughout during the tenure of Renubala and thereafter during the tenure of succession in title, Rekharani as well as of the appellant before this Court was the possession of the property belonging to the vendor of the appellant as well as predecessor of title of Rekharani i.e. for Renubala. Under the law, accordingly, it to be presumed that the possession of the defendants in such type of cases as admitted was within the domain of derivative character and in clear recognition of and in acknowledgment of the title of the Renubala, which passed on by registered deed gift to Rekharani and thereafter to the appellant. In that view, the possession of the suit plot by the defendants prior to filing of the suit i.e. on 16th December, 1996 when the defendants had set up a case of adverse possession of acquiring a title due to alleged hostile action denying the right of the appellant, the possession of the defendants all through till 15th December, 1996 was the possession in terms of the executory contract, and as such, the same remained as permissive possession or derivative till the date of registration by proper document perfecting the title of the defendants and such possession under the law would be deemed as on behalf of the owner i.e. the predecessor in title of the appellant.
21. In that view of the matter, Article 65 of the Limitation Act got no applicability to dislodge the claim of the plaintiff by holding that the suit was not maintainable being the concurrent findings of both the Courts on the ground that suit was filed after long lapse of 12 years from the date of handing over of the possession as the possession of the defendants remained althrough as a representative of the owner in terms of the executory contract as admitted by the defendants in contemplation of perfecting their title by registered instrument and as the appellant's predecessor in title under the law would be deemed as in possession through the defendants and defendants also were in possession as a representative of a owner having title over the property. This view is clearly elucidated in the aforesaid judgment Achal Reddy AIR 1990 SC 553 (supra).
22. Furthermore, it appears on analysis of the findings and observation of both the Courts below that the defendants never filed any case of specific performance of contract against the predecessor in title of the appellant, namely, either against Rekharani and/or Renubala, though it is the positive case of the defendants not only in the written statement but in the evidence as laid that they were not in permissive possession of the suit plot but were in possession on the strength of a right accrued within the domain of executory contract in contemplation of perfecting a title by registered instrument. Having regard to the issue on that angle also, the concurrent findings of both the Courts below was not only erroneous but it goes to the root of the matter and accordingly for such mis-direction by non-considering the settled legal position that the adverse possession and permissive possession both cannot dwell together because they are strange bed partners, judgment and decree under appeal accordingly is being considered as judgment and decree passed by not exercising the jurisdiction for which the Courts were vested with the power.
23. The finding of the learned Court below i.e. the trial Court that defendant failed to prove that there was an agreement to sale to purchase the property with Renubala was also not challenged by the defendants by filing a cross appeal when the present appellant laid an appeal challenging the judgment and decree of the trial Court whereby the suit was dismissed. The said findings became absolute and final, hence, on that score, defendants cannot retain possession denying right of lawful purchaser, the appellant.
24. It is also a settled law that plea of adverse possession is not sustainable when an alternative plea for retention of possession by operation of Section 53-A of Transfer of Property Act is made as first plea by a plea of part performance of contract on basis of argument. Adverse possession plea being totally inconsistent with the second plea of retention of possession by operation of Section 53A of Transfer of Property Act. Reliance has been placed to the judgment passed in the case Mohan Lal (deceased) through his LRs. Kachru v. Mira Abdul Gaffar , which reads to this effect:
As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e. upto completing the period of his title by prescription nee vi nee clam nee precario. Since the appellant's claim is founded on Section 53-A, it does without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.
25. Though Section 53-A of the Transfer of Property Act speaks of the written agreement to sell, whereas in the instant case there is an oral agreement of sale as admitted by the defendants themselves, still then, the principle of law has the applicability as such the plea as taken by the defendants, namely, the adverse possession and alternative plea for retention of possession in view of oral agreement of sale and part payments of consideration money, both being inconsistent with each other was not legally tenable to be addressed and both the Courts below did not explore and adjudicate the basic legal proposition, which goes to the root of the matter.
26. Furthermore it is a settled position of law that Easement Act, has no applicability in the State of West Bengal, but the principle of justice, equity and good conscience could be applied, which are common law principles. In the instant case as the defendants never had set up a plea to that effect and there was no foundation and materials in the written statement as well as in oral evidence and the findings of both the Courts below, by framing an issue to that effect, the same cannot be considered by this Court sitting in the second appeal jurisdiction to grant any relief to the defendants by allowing possession of the suit property Reliance maybe placed to the judgment pissed in the case Viswanatha Achari (supra) and B. Leelavathi v. Honnamma reported in 2005 (11) JT (SC) 589.
27. There is no doubt that under Section 100 of the Code of Civil Procedure the power of the Court while exercising the jurisdiction under second appeal is limited and Court will not disturb the concurrent findings of the facts as a general principle of law but there are exceptions to that principle, namely, where both the Courts below failed to appreciate the oral and documentary evidence properly to reach their findings, which goes to the root of the matter. Reliance may be placed to the judgment passed in the case Ramlal v. Phagua Mohan Lal v. Nihal Singh, . In the case Ramlal (supra) both the Courts below, namely, Trial Court and First Appellate Court wrongly addressed the issue by not considering the evidence properly and thereby came to a finding that the concerned deed was sale absolute though it was the case of the plaintiff that it was a mortgage by conditional sale. High Court interfered with such concurrent findings of the fact by re-appreciating the evidence and thereby held that it was a mortgage by conditional' sale and the Apex Court also did not interfere with such judgment and decree of the High Court passed in second appeal by interfering with the concurrent findings of the facts of both the Courts below.
28. In the instant case, both the Courts below came to a concurrent findings of fact of acquiring of the title of the property by adverse possession by the defendants concerned without considering the principle of the law that in view of initial entry of the defendants on the strength of oral agreement to sell along with part payments of the consideration money, the plea of adverse possession was not only inconsistent but not legally sustainable. Finding of the trial Court to that effect reads such:
...In this case, it is seen that Renubala transferred the suit property to Rekharani on 11.5.1984 by Deed No. 3133 marked Ext. 8 and as such, the licence was revoked from 11.5.84 and since then, till date the defendants are continuing to remain in suit property being merely a trespasser and as such, it can be safely held that as the defendants have remained in possession of the suit property for over 12 years, after revocation of licence, the defendants have acquired title by adverse possession in the suit property. It is also laid down in the law for Adverse Possession that an adverse claim must be hostile at its inception and phrase hostile in its inception does not relate to the original entry of the dissiesor but to the act by which the possession became adverse. In other words, the possession must be hostile for the statutory period. The possession in order to be adverse has to be open and as of right. It is seen in this case that, these defendants are continuing in possession as trespasser from 11.5.84 till date. Accordingly, this issue is decided against of the plaintiff.
...But it is seen that the defendants are residing on the suit plot even after Renubala refused to sell the plot to the defendants and after the transfer by Renubala the defendants continuing to remain in possession of the suit plot as trespasser.
(Underline is of mine)
29. The 1st Appellate Court came to a finding on adverse possession to this effect:
As regards the finding of the ld. Judge on adverse possession I find myself in agreement with the submission of the Id. Advocate for the respondents. The respondents who were occupying the suit property as licencees under Renubala became trespassers right from the moment of transfer of interest by Renubala in favour of Rekharani on 11.5.1984. Section 61 of the Registration Act speaks about the completion of registration of a registered instrument. The effect of transferable interest operates from the date of transfer by virtue of Section 47 of the said Act. As a result, the occupation of the respondents in the suit property as trespassers became effective from 4.5.1984 and such occupation was well within the knowledge of Rekharani and the present appellants. It is the specific stand of the respondents that they constructed their respective ghars in the suit property. Since the house of the appellants is found divided against themselves on the scare of existence of ghars for want of consistent and convincing evidence, I do not see any valid reason to differ with the finding of the Id. Court below that the respondents constructed their respective 'Ghars', Bedi for Kalipuja etc. Conclusion of the Id. Court below that the respondents acquired title in the suit property by adverse possession is quite justified.
As regards the absence of an issue on adverse possession as pointed out by the ld. Advocate for the appellants, I must appreciate his submission. The Id. Court below ought to have framed an issue before arriving at a finding on such point. But from the evidence on record, I cannot, but support the conclusion of the ld. Court below because the title by way of adverse possession appears to be a case of gift by the appellants to the respondents and there is hardly any scope to arrive at a different finding in this case. Therefore, it will be an exaggeration to point out that framing of an issue of adverse possession at this stage would merely be an academic exercise.
(Underline is of mine)
30. From the aforesaid findings it is explicitly clear that both the Courts below failed to address the issue in proper and legal perspective and applying the settled law of the land, hence, the judgment and findings are nothing but perverse and as such, this Court in exercise of the jurisdiction under Section 100 of the Civil Procedure Code, is within the jurisdiction to interfere with such concurrent findings of the fact.
31. Having regard to such state of affairs, the substantial question of law as framed in view of the reading of this Court' by considering the evidence on record, oral and documentary, which goes to the root of the matter on the materials to that effect as already discussed by answering in affirmative way, the appeal succeeds. The judgments and decrees of both the Courts below, namely, Trial Court and First Appellate Court, accordingly, are set aside and quashed. The suit is decreed in favour of the appellants in terms of prayers (a) and (b) of plaint by directing the defendants of the suit to deliver vacant possession of the suit plot to the plaintiffs of suit within six months from this date. Failing to do such, the plaintiffs of the suit will proceed with execution of decree as per law. Having regard to the facts there will be no order as to costs. Registry is directed to send back the Lower Court Records forthwith.