Calcutta High Court (Appellete Side)
Sg vs Ct. 8 on 3 November, 2022
Items- FAT 487 of 2014
03-11-2022
34&35.
Banamali Jana
sg Versus
Ct. 8
Kanai Lal Manna & Ors.
With
FA 9 of 2015
Manas Kumar Das
Versus
Banamali Jana & Ors.
Mr. Rabindra Nath Datta, Adv.
Mr. Prabir Kumar Misra
...for the appellant in FAT 487/2014
for the respondent in FA 9/2015
Mr. Amit Baran Dash, Adv.
Ms. Ankana Sarkar, Adv.
...for the appellant in FA 9/2015
Mr. Kapil Ch. Shaoo, Adv.
...for the respondent no.2 in FA 9/2015
for the respondent nos. 1, 9-11 in FAT487/2014
The appeal and the cross-appeal are taken up for hearing
and disposed of by this common judgment.
We feel that the appeal could have been disposed of much
earlier as the appellant in FAT 487 of 2014 upon ascertaining that
the heirs of Basanti Panda were substituted and their possession
have been declared but on the operative part of the judgment it
was dismissed on the ground that all the co-sharers were not made
party in the partition suit which is an error apparent on the face of
record. The said error was subsequently rectified and a rectified
preliminary decree has now been produced before us. The
rectified preliminary decree was brought on record in CAN 10870
of 2015.
The respondent no.13 has preferred the appeal first.
Admittedly, he is a co-sharer by virtue of a deed of purchase from
one of the co-sharers. However, the said appellant claimed
adverse possession in respect of plot no. 105. The learned Trial
Judge has, in our view, on correct appreciation of law, fact and
evidence, has declined the said relief as it is clear from the
evidence of the defendant no.13 that he himself during his cross-
examination has admitted that western side of plot no. 105,
measuring 53 decimals of land is in ejmali possession. No
exclusivity of any kind could be demonstrated which may have a
hostility attached to it.
In a claim for adverse possession, the parties require to
establish that such possession is continuous, uninterrupted and
hostile, which has not been proved either by the respondent no.13
or by the DW-8. In fact, the best evidence that should have been
laid by the defendant no.13 as the defendant no.8 appears to be an
interested wings and has no personal knowledge about the matter.
The law is well-settled but mere continuity without proof
of ouster will not ripen to absolute ownership. The ordinary
classical requirement of adverse possession is that it should be nec
vi, nec clam, nec precario [see. Hemaji Waghaji Jat vs.
Bhikhabhai Khengarbhai Harijan reported in (2009) 16 SCC
517 (para 14 and 23)]. The possession required must be adequate
in continuity, in publicity and in extent to show that it is
possession adverse to the competitior. A person who bases his title
on adverse possession must show by clear and unequivocal
evidence that his title was hostile to the real owner and amounted
to denial of his title to the property claimed. In the instant case,
the admission in the cross-examination clearly demolishes the
claim of the defendant no.13 as to his title of adverse possession.
On such consideration we do not find any reason to
interfere with the judgment and decree passed by the learned Trial
Judge rejecting the prayer for adverse possession. However, both
the appeals succeeds to the extent that the appellant in both the
appeals are co-sharers and in the suit all the co-sharers have been
made party.
In view thereof, the Trial Court is directed to pass a
preliminary decree on the basis of the shares declared within three
weeks from the date of communication of this order along with
the LCR.
The department is directed to send down the LCR
forthwith with the copy of this order.
The learned Registrar Administration (L&OM) is directed
to ensure that this order is complied with by the department
concerned.
The appeals are thus disposed of.
(Uday Kumar, J.) (Soumen Sen, J.)
