Gauhati High Court
On The Death Of Prafulla Lahkar His Legal ... vs On The Death Of Bipul Ch. Baruah His Legal ... on 24 January, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 109/2002
On the death of Prafulla Lahkar, his legal heirs
Smti. Arati Lahkar & others ...... Appellants
-Versus-
On the death of Bipul Chandra Baruah, his legal heirs-
Sri Abhijit Baruah & another ..... Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellants : Mr. J Deka
Advocate
For the Respondents : Mr. BD Deka
Advocate
Date of Hearing : 24.01.2017
Date of delivery of
Judgment and Order : 24.01.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. J Deka, learned counsel appearing on behalf of the appellants and Mr. BD Deka, learned counsel appearing on behalf of the respondents.
2. The respondents, as plaintiffs, instituted title suit No. 48/1991 against the defendant/ appellants praying for a decree of khas possession by evicting the defendant including the persons who are occupying the house under him (defendant/ appellant) and also by removing the thatched structures and Chalis Page 1 of 19 RSA 109/2002 and also for declaration of title. The case of the plaintiff/ respondents is that they are the owner and in possession of 2K 10L of land covered by Dag No. 482/483 of KP Patta No. 63 which is described in the Schedule A of the plaint. The said land was purchased by the deceased plaintiff Priyambada Baruah from one Kaliprasad Baruah and other co-owners by registered sale deed dated 27.02.1970 where-after possession was delivered to her. Her name was duly mutated vide order dated 06.01.1988 in Mutation Case No. 1160/1986-87. Immediately after taking possession, the deceased plaintiff (the present respondents are her legal heirs) constructed a thatched house and allowed some labourers to stay there. But the suit land was lying vacant as those labourers left the place.
3. During the last part of the year 1983 the defendant appellant started business of bamboo and tarja on the road side of the land of the PWD road abutted on the front side of the suit land by making a thatched chali. In the year 1984, the defendant appellant occupied the thatched house of the plaintiff respondents and used the same for his business purpose. The defendant appellant also raised two other challis on the suit land and allowed to stay one dhobi and a cycle mechanic. The plaintiff respondents protested to such action of trespass whereupon the defendant appellant promised to vacate the suit land as soon as he could arrange other accommodation. The defendant appellant also told that as the authority concerned evicted them from the road side chali, so he had shifted his business to the thatched house and he had raised the chali for the dhobi and cycle mechanic as they too had no shelter. The defendant Page 2 of 19 RSA 109/2002 appellant also allowed three other outsiders to raise chali over the suit land. But the defendant appellant did not vacate the suit land as promised.
4. In 1988, the original deceased plaintiff came to know that the defendant appellant obtained the holding No. 543 of GMC in his name in respect of the said thatched house and challis. The plaintiff respondents raised objection before the GMC whereafter the GMC vide order dated 07.01.1989 corrected the entries and recorded the name of the deceased plaintiff. In spite of repeated request and demand made by the plaintiff respondents, the defendant appellant and his men did not vacate the suit land. A notice through his counsel on behalf of the plaintiff respondents was also sent. In spite of the receipt of the said notice, the defendant appellant failed to vacate the suit land which compelled the plaintiff to institute the suit.
5. The defendant appellant has contested the suit by filing the written statement alleging that the suit land is ceiling surplus land and he has been residing over the suit land since 08.07.1970. In the year of 1977, the Public Health department (PHE) used to keep some iron pipe for about 1½ years. The Officer In-charge under whom the said pipes were stored, asked the defendant appellant to start tea stall so that the staff engaged in the works could have their refreshment within a closed distance. The defendant appellant started the tea stall w.e.f. 15.04.1977.
6. The plaintiff having come to know visited the spot and asked the Officer In-charge to remove the pipes from the said land. The Officer In-charge accompanied by the defendant appellant proceeded to the Office of the SDO and on verification came to know that the land was a ceiling surplus. After some time Page 3 of 19 RSA 109/2002 the iron pipes were shifted to respective places and the place was made vacant where-after the defendant appellant constructed two other houses and let out to other persons without any hindrance from any corner and he has acquired right over the suit land by way of adverse possession. The defendant appellant denied that the plaintiff respondents had possession over the suit land by constructing thatched house. Further it was pleaded that the holding No. 543 was allotted to him and he has been paying the municipal taxes also. The defendant appellant also took the plea that the suit was barred by limitation. Finally, he prayed for dismissal of the suit.
7. Upon pleadings, the learned trial court of the then Civil Judge (Jr. Divn.) No. 2 framed the following issues:-
1. Whether there is cause of action for the suit?
2. Whether the plaintiff has right, title and interest over the suit land?
3. Whether the suit is barred by limitation?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the plaintiff is entitled to the relief prayed in the suit and/or any other relief?
Additional Issues:-
6. Whether the suit is maintainable in its present form?
7. Whether the defendant has acquired any title over the suit land by right of adverse possession?
8. Whether the suit is ceiling surplus land?
8. Both the parties adduced evidence in support of their claim and the learned trial court after hearing the parties decreed the suit vide judgment and decree dated 10.03.2000 passed by the learned Civil Judge (Jr. Divn.) No. 2 at Guwahati in title suit No. 48/1991.
9. The defendant appellant preferred title appeal No. 27/2000 in the court of learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati challenging the Page 4 of 19 RSA 109/2002 judgment and decree dated 10.03.2000 passed by the learned Civil Judge (Jr. Divn.) No. 2, Guwahati. The learned first appellate court after hearing the parties dismissed the appeal vide judgment dated 24.01.2002.
10. Being aggrieved, the defendant appellant preferred this second appeal against the said judgment and decree dated 24.01.2002 passed in title appeal No. 27/2000 by the learned Civil Judge (Sr. Divn.) No. 3, Kamrup at Guwahati. During the pendency of the present second appeal, the original defendant appellant Prafulla Lahkar died after which he was substituted by his legal heirs. Similarly, the respondent plaintiff No. 1, namely, Bipul Chandra Baruah died and was substituted by his legal heirs. This second appeal was admitted on 15.11.2002 on the following substantial questions of law:-
1. Whether a decree can be passed for delivery of khas possession of the suit land without declaration of right, title and interest?
2. Whether Issue No. 2, i.e., whether the respondents/ plaintiffs have right, title and interest over the suit land can be framed and decided in the absence of such pleading in the plaint?
11. Mr. J Deka, learned counsel for the appellant, submits before this court that both the learned courts below failed to take into consideration the evidence on record in the proper perspective while deciding issue No. 7 i.e. as to whether the defendant has acquired any title over the suit land by right of adverse possession and as such the learned counsel for the appellant submits another substantial question of law to be formulated to the effect that whether findings with regard to issue No. 7 by the courts below are perverse. Mr. BD Deka, Page 5 of 19 RSA 109/2002 learned counsel appearing on behalf of the plaintiff respondents, submits that there is no perversity in the findings so arrived at with respect to the issue No. 7 as both the learned courts below have appreciated the material piece of evidence in the proper perspective. Considering the submissions of both the learned counsel, this court feels that the term 'adverse possession' is a mixed question of both law and facts and this court as the second appellate court has the power to enter into the facts even in concurrent findings. In the case in hand, the learned first appellate court though negated the claim of adverse possession of the defendant appellant but the same lacks of the findings so far the ingredients more specifically the intention of the defendant appellant is concerned to show his animus possidendi. So the third substantial question of law is accordingly formulated as follows:-
3. Whether findings with regard to issue No. 7 by both the learned courts below are perverse?
12. Before entering into the substantial questions of law No. 1 and 2, let me take the substantial question of law No. 3 to examine the findings of the learned courts below with regard to the perversity, if any.
13. In P.T. Munichikkanna Reddy and others v. Revamma and others reported in (2007) 6 SCC 59, the Apex Court held as follows:-
"8. Therefore, to assess a claim of adverse possession, two- pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "wilful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-
owner.
Page 6 of 19 RSA 109/2002
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."
"11. This brings us to the issue of mental element in adverse possession cases - intention.
1. Positive intention.
"18. On intention, Powell v. McFarlane is quite illustrative and categorical, holding in the following terms:
"If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi').
* * * * If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
* * * * In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
* * * * What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper Page 7 of 19 RSA 109/2002 title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
"19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence."
Findings of the learned first appellate court:-
14. The first appellate court had concluded that as the plaintiff respondent had sought for the relief of khas possession on the basis of his title, so Article 65 of the Limitation Act, 1963 will govern the relief and the plaintiff respondent is to institute the suit within 12 years from the date when the possession of the defendant appellant becomes adverse to the interest of the plaintiff.
15. The learned first appellate court considered the pleadings of the defendant appellant and the facts narrated like dumping of pipes over the suit land and subsequent starting of tea stall and the verification of land in the office of the SDO.
16. The defendant appellant, as DW 1, deposed about the threatening to vacate the suit land by one Ashok Baruah and Anil Baruah, sons of deceased plaintiff. The mutation for GMC holding in the name of defendant appellant was started as Case No. 1160/1986-87 (Exhibit-2) and the plaintiff respondents filed the cancellation case being No. 1782/1988 (Exhibit-4). The court accordingly Page 8 of 19 RSA 109/2002 disbelieved the possession of the defendant appellant from 08.07.1970 and finally held that the defendant appellant failed to show that his possession was continued uninterruptedly for the statutory period of 12 years. The registered sale deed, Exhibit-1 was considered and it was held that the plaintiff respondents purchased the suit land on 27.02.1970 and name of the deceased plaintiff was mutated on 06.01.1988. The defendant appellant stated that he had been possessing the suit land w.e.f. 08.07.1970 and paying revenue in the name of vendor of the plaintiff respondents. Finally, the court below came to the conclusion that though the defendant had been possessing the suit land for long time but such possession cannot be termed as adverse possession and as such the suit is not barred by limitation. So, the learned first appellate court upheld the findings of the learned trial court in issue No. 7 whereby the same was decided against the appellant defendant.
17. In Union of India v. Ibrahim Uddin and another reported in (2012) 8 SCC 148, the Hon'ble Supreme Court held as follows:
"70. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the Court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the Court comes to the conclusion that the question(s) framed could not be the substantial questions(s) of law. There is no prohibition in law to frame the Page 9 of 19 RSA 109/2002 additional substantial question of law if the need so arises at the time of the final hearing of the appeal.
18. This court accordingly had already formulated the aforesaid substantial question of law and as such in order to examine animus possidendi of the defendant appellant decides to enter into the evidence of the parties.
19. One Bipul Chandra Baruah, the substituted legal heir of the original plaintiff, as PW 1 exhibited the registered sale deed No. 2271 dated 27.02.1970 as Exhibit-1 by way of which Kali Prasad Baruah and other co-owners sold land measuring 2K 10L covered by Dag No. 482 and 483 of KP Patta No. 63 of village Japorigog under Mouja Beltola in the district of Kamrup to Priyambada Baruah, the mother of PW 1. The mutation order dated 06.01.1988 in the name of the purchaser was also exhibited as Exhibit-2. The mutation order with respect to holding No. 543 over the suit land in favour of Priyambada Baruah which was standing in the name of defendant appellant in Mutation Case No. 1782/1988 and vacated by the GMC authority by order dated 07.03.1989 is exhibited as Exhibit-3. The land revenue paying receipts and the GMC Tax Paying receipts are also exhibited. The Advocate notice dated 10.04.1989 asking the defendant appellant to quit and vacate the suit land is exhibited as Exhibit-6.
20. In cross examination, the PW 1 stated that the suit land bounded by walls on three sides leaving the northern side as there is PWD road. He denied that the land was acquired by the Government under the U.L.C. Act, 1976. The thatched house was also constructed in the year 1979-80. The PHE department dumped pipes in the year 1983 and denied the suggestion that the defendant appellant was residing over the suit land since 1970 by raising thatched houses. He also Page 10 of 19 RSA 109/2002 denied the suggestion that the PHE department dumped pipes in the year 1977. In the cross, the said PW 1 deposed that the defendant appellant was asked to take back his business carried over the drain on the front side of the suit land. However, no police case was lodged after the entry of the defendant appellant in the thatched house over the suit land as he promised to vacate the same on his own. He also denied that the defendant appellant had raised the thatched house.
21. From the aforesaid evidence and considering the exhibits it is clear and apparent that the title of Priyambada Baruah over the suit land has been established and nothing could be elicited from the said PW 1 to disprove the title of his mother, late Priyambada Baruah.
22. The defendant appellant examined himself as DW 1 and exhibited GMC Tax Paying receipts against the holding No. 543 (which was cancelled vide Exhibit-3) for the period of 1984-85, 1988-89 as Exhibits Kha, Kha1, Kha2, certificate (hand written) purportedly issued by the Office of the Deputy Commissioner showing the land under Dag No. 483 to be ceiling surplus as Exhibit- Ka, electricity bill as Exhibit- Ga and possession certificate as Exhibit- Unga.
23. In cross examination, DW 1 stated that he was not aware that the plaintiff respondent was having land measuring 2K 10L. He has no record to show that he entered the land covered by Dag No. 483 by raising his thatched houses. He was issued licenses by the GMC to run the tea stall and bamboo business but he neither exhibited nor produced the same. He had paid land revenue in the name of Kali Prasad. During the pendency of the suit, he constructed 8 nos. of Chali houses without permission of the court. The land over Page 11 of 19 RSA 109/2002 which he constructed his houses falls within the GMC area. He had not replied to the notice Exhibit-6.
24. In chief, the DW 1 stated that since 08.07.1970 he has been residing over the suit land. He at first raising his Chali started Pan shop. Latter in 1977, PHE department dumped pipes and started bamboo business and thereafter a tea stall. He came to know latter that the land was ceiling surplus but raised two rooms with half walls. He was threatened to vacate the land by Anil Baruah and Ashok Baruah.
25. DW 2, Khagendra Nath Kakati, deposed in his chief that he has been residing in Narikel Basti since 1968. He raised thatched house over the suit land. In 1977 PHE dumped pipes over the vacant plot adjacent to his house. None has tried to dispossess the DW 1.
26. In cross examination, the DW 2 stated that DW 1 raised thatched house in 1970. But he did not know the owner of the house. He does not know if the DW 1 had been carrying business as permitted by the plaintiff respondents. he cannot say as to when the DW 1 raised the tin chali house.
27. DW 3, Prafulla Chandra Das, in his chief deposed that he has been residing in Gitanagar since 1977. He saw pipes and shops over the suit land. Defendant had his houses over the suit land. None resisted him (DW 1) while carrying out the construction over the suit land.
28. In cross examination, DW 3 stated that he cannot say if the defendant appellant was running his tea stall and bamboo business as per the permission of the plaintiff. The half wall houses as stated by the defendant are over the suit land but he cannot say as to when the same were constructed. Page 12 of 19 RSA 109/2002
29. In P.T. Munichikkanna Reddy and others (supra), the Hon'ble Apex Court held in paragraph 34 as follows:-
"34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p. 1256, para 5) "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so taht the starting point of limitation against the party affected can be found."
30. Thus it is the burden on the plaintiff respondent to prove the title only and then onus of proof would be on defendant appellant to show as to when possession becomes adverse so that the starting point of limitation against the plaintiff could be ascertained for the purpose of point of limitation.
31. The plaintiff respondent has proved the title of the suit land by exhibiting Exhibit 1 registered sale deed. Mr. J Deka, learned counsel for the appellant, had argued that the Exhibit-1 is invalid as it was not executed by the executant on the proper authority of some of the co-owners, inasmuch as, the number of registered deed of general power of attorney has not been mentioned therein the sale deed Exhibit-1 and there are discrepancies with regard to date of execution and registration of the same. Mr. BD Deka, learned counsel for the respondents, on the other hand, argued that no such plea was raised in the written statement Page 13 of 19 RSA 109/2002 nor was there any specific denial of the validity of the Exhibit-1 and there was no cross examination to that effect. On perusal of the written statement by this court it is found that no specific denial with respect to the validity of Exhibit-1 was pleaded nor the defendant appellant's side had cross examined the PW 1 to that effect. Under such circumstances, the Exhibit-1 is found to be valid.
32. Coming to the discharge of the onus of proof on the part of the defendant appellant - (i) the defendant appellant in his plea in the written statement had failed to mention any specific plea as to when his possession had become adverse in order to take the benefit of Article 65 of the Limitation Act, 1963. (ii) the defendant appellant in his evidence in chief had made a mention that he was threatened by Anil Baruah and Ashok Baruah to vacate the suit land. But the same cannot be considered as the other witnesses of the defendant's side deposed that the action of the defendant appellant for construction over the suit land and/or possession was never resisted by any one. One of the two witnesses was residing nearby the residence of the defendant appellant since 1968 and the other one knew the defendant appellant since 1977. If at all any intent can be taken into consideration that the plaintiff respondent tried to dispossess, it was in the year 1984 when he paid the GMC taxes against his holding No. 543, Exhibit- Kha (1), the Tax Paying receipt. The said holding was subsequently mutated in the name of the original plaintiff after cancelling the name of the defendant appellant vide Exhibit-3. Even under such circumstances, the suit for recovery of possession was filed in the year 1991 that too well within the prescribed period of 12 years under the Limitation Act, 1963. Further the fact that defendant appellant was running his tea stall and the bamboo business over the suit land Page 14 of 19 RSA 109/2002 cannot be believed as he failed to produce the licenses issued by the GMC as apparent from his cross examination.
33. Mr. J Deka, learned counsel for the appellant, argues that from Exhibit-6, the Advocate's notice issued to the defendant appellant itself shows that the defendant appellant had been branded as a trespasser and so his possession over the suit land itself cannot be treated as permissive one and the same was adverse to the interest of the plaintiff respondent. This cannot be the real proposition of law in case of a person claiming adverse possession against the real owner. As discussed herein above in situation where a person's initial entry is a trespass then there must be compelling evidence to show that the defendant appellant has done such acts to dispossess the plaintiff continuously from the date of entry over the suit land in order to fulfil his "intent" of dispossessing the plaintiff-respondent though she is the paper owner of the suit land. But there is no iota of evidence as to such intent to that effect to show the requisite animus possidendi of defendant appellant as referred hereinabove.
34. Finally, the defendant appellant failed to show as to when his possession started to be adverse to the interest of the plaintiff respondent in order to strip off the right of the plaintiff respondent to come to the Court for the relief of recovery of possession by evicting the defendant appellant within the prescribed period of 12 years under Article 65 of the Limitation Act, 1963. Thus, there is no perversity in the findings of the learned courts below while deciding issue No. 7. So, this substantial question of law is decided in negative. Page 15 of 19 RSA 109/2002
Substantial question of law No. 1: Whether a decree can be passed for delivery of khas possession of the suit land without declaration of right, title and interest?
35. This substantial question of law evolves out of a suit filed by the plaintiff respondent against the defendant appellant with the prayer for recovery of khas possession of the suit land and if necessary, for declaration of right, title and interest of the plaintiff respondent over the suit land. However, no fixed ad- velorem court fee was paid by the plaintiff respondent for declaration. So, Mr. J Deka, learned counsel for the appellant defendant, submits that the relief of recovery of khas possession against the defendant appellant cannot be granted by the learned courts below, inasmuch as, the relief of recovery of possession is consequential relief flowing from the main relief of declaration of right, title and interest over the suit land of the plaintiff respondent and the suit is hit by Section 34 of the Specific Relief Act, 1963.
36. Mr. BD Deka, learned counsel for the respondent plaintiff, submits that the plaintiff respondent is the best person to seek for the reliefs in a suit as per the pleadings and/or on the basis of the facts upon which the cause of action has/ had occurred on the part of the plaintiff respondent. Moreover, he submits that the defendant appellant as against the claim of the plaintiff respondent had raised the plea of the adverse possession and such claim cannot be taken into consideration to the effect that a cloud has been created over the title of the plaintiff respondent. So, the learned courts below had rightly passed the judgment and decree for recovery of khas possession.
Page 16 of 19 RSA 109/2002
37. Considered the submissions of both the learned counsel. This is a case wherein the defendant appellant had taken the defence that on the basis of his adverse possession over the suit land he had ripened his title over the suit land and as such the suit is liable to be dismissed. There is not even a single whisper challenging the title of the plaintiff respondent that too, any counter title within the ambit and scope of the Transfer of Property Act, 1882 with regard to the title of the defendant appellant over the suit land. Rather, he claimed his title on the basis of his adverse possession which is a negative right to possess over the suit land owing to efflux of time period prescribed in the Limitation Act, 1963 for the plaintiff respondent to come to the court for recovery of possession. So, as there is no specific plea of a title arising out of the Transfer of Property Act, 1882 by the defendant appellant over the suit land and as such formation of cloud over the title of the plaintiff respondent does not arise at all which she claimed on the basis of Section 54 of the Transfer of Property Act, 1882 i.e. by way of purchase through the sale deed Exhibit-1 executed by its rightful owner. So, the courts below are correct in granting the relief of recovery of possession in favour of the plaintiff respondent.
38. In Anathula Sudhakar v. P. Buchi Reddy (dead) by Lrs. and others reported in (2008) 4 SCC 594, the Hon'ble Apex Court held as follows:-
"The position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for Page 17 of 19 RSA 109/2002 possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown."
39. Subsequently, in Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma reported in (2008) 15 SCC 150, the Hon'ble Apex Court held that in a case where the plaintiff sought for only a decree of possession though she purchased the suit land against the defendant who was termed as a trespasser by her and the defendant took the plea of perfection of his title by way of adverse possession and an issue was raised as to whether the suit was not maintainable for want of a prayer for declaration of title, the Hon'ble Apex Court relying the ratio laid down in Anathula Sudhakar (supra) held that a mere claim by the defendant that he had perfected his title by adverse possession does not mean that a cloud is raised over the plaintiff's title and that the plaintiff who is the owner should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration.
40. Similar is the situation in the present case in hand. Plaintiff respondent as the owner by right of purchase has claimed the recovery of khas possession from the defendant appellant who as per the plaintiff is the permissive occupier over the suit land and the defendant appellant has come up with a plea of adverse possession against the plaintiff. As the said plea cannot create cloud over the title of the plaintiff respondent. so the declaration of the right, title and interest Page 18 of 19 RSA 109/2002 of the plaintiff over the suit land is not required to be sought for in order to get the relief of recovery of possession. Accordingly, this substantial question of law is decided in the negative.
Substantial question of law No. 2:- Whether Issue No. 2, i.e., whether the respondents/ plaintiffs have right, title and interest over the suit land can be framed and decided in the absence of such pleading in the plaint?
41. This substantial question of law cannot be termed so, inasmuch as, the plaintiff has sought for declaration of her right, title and ownership over the said Schedule A land if the same is necessary to get the aforesaid relief for khas and vacant possession against the appellant defendant more so when there is a specific plea in the plaint that she is the owner of the suit land.
42. Accordingly, this second appeal is dismissed on contest. No costs.
43. Send down the LCRs immediately.
44. Interim order(s), if any, passed earlier shall stand automatically vacated.
JUDGE BiswaS Page 19 of 19 RSA 109/2002