Laxman Chakroborty & Ors vs Akshay Mukherjee
2022 Latest Caselaw 7744 Cal

22.11.2022 SL No.6 Court No.8 (gc) SA 26 of 2011 CAN 1 of 2004 (Old No: CAN 10127 of 2004)

Laxman Chakroborty & Ors.

Vs.

Akshay Mukherjee

The matter was adjourned on the earlier occasion

on the prayer of the learned Counsel for the appellants.

We made it clear in our earlier order that no further

adjournment shall be granted.

The appellants are not represented.

In view of our earlier observation, we proceed to

decide the admission of the second appeal.

The second appeal is arising out of an appellate

decree dated 17th November, 2003 affirming the judgment

and decree dated 28th February, 2002 by the learned Civil

Judge, Junior Division, Howrah in T.S. No.208 of 1991.

The said suit was filed for declaration and permanent

injunction. The plaintiff claims to be the owner of the suit

property by virtue of deed of gift executed on 11th July,

1991. According to the plaintiff, the defendants used to

reside as licensee in a room contiguous to the plaintiff

since the time of the predecessor of the plaintiff. The gift

deed was marked as Exhibit-5. From the recital of the gift

deed it would appear that the entire land with structure

situated in dag no.2556, kh. No. 1078 has been

transferred along with the easementary rights to the

plaintiff. On the other hand the defendants are claiming

that they are living and enjoying the possession of the suit

property since long over the statutory period i.e. for more

than 20 years and they have acquired possession by

possessing right adversely to the owner of the suit land.

The defendants are thereby claiming acquisition of title by

way of adverse possession.

During trial, the defendants have produced several

documents which have been marked as exhibits to show

that the defendants have been residing in the said locality

and they are in the suit room for last several years. The

defendants, however, did not deny the execution of the

deed of gift. The said deed of gift was duly registered.

Before the Trial Court it was urged that the plaintiff and

the defendants are the joint owners of the property in

question.

In view of the deed of gift and absence of any

evidence to show that the possession of the defendants is

hostile, the learned Trial Judge decreed the suit. In order

to succeed in a plea for adverse possession, a party is

required to prove that his possession is nec vi, nec clam,

nec precario, that is, peaceful, open and continuous.

These three conditions are not fulfilled in the instant case.

If the defendants are claiming ownership on the basis of

adverse possession notwithstanding the acceptance and

admission of the deed of gift, the aforesaid three

conditions are required to be fulfilled. The First Appellate

Court in affirming the judgment of the Trial Court has

taken into consideration the aforesaid factors. 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. The ordinary classical requirement of

adverse possession is that it should be nec vi, nec clam,

nec precario and the possession required must be

adequate in continuity, in publicity and in extent to show

that it is possession adverse to the competitor.

The Trial Court as well as the First Appellate Court

has clearly held that the appellants have failed to

establish their title over the suit property. A registered

deed of gift clearly demolishes the right or any claim of the

defendants/appellants as owner of the property in

question. Their entry to the suit property was not hostile.

They were in permissive occupation. They have failed to

establish that their continuation in possession is in denial

of title of the true owner and with the knowledge of the

true owner. The possession has to be in public and to the

knowledge of the true owner as adverse having not been

established plea of acquisition of title by adverse

possession by the appellants' faith.

Where there is permissive possession given by the

owner the defendant's claim that the same had become

adverse, it has to be specifically pleaded and proved as to

when possession becomes adverse in order for the real

owner to lose 12 year hence from that date. (See Hemaji

Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan

reported at (2009) 16 SCC 517: AIR 2009 SC 103,

Narasamma Vs. A. Krishnappa reported at 2020(15)

SCC 218 (Para 17)).

There is no substantial question of law involved in

the second appeal. Accordingly, the second appeal stands

dismissed at the admission stage.

In view of dismissal of the second appeal at the

admission stage, the application also stands dismissed.

However, there shall be no order as to costs.

(Uday Kumar, J.)                        (Soumen Sen, J.)