Calcutta High Court (Appellete Side)
Ashutosh Sadukhan vs Sg Parul Bala Sadukhan & Ors on 9 September, 2022
SA 20 of 2022
Item-13.
09-09-2022
Ashutosh Sadukhan
Versus
sg Parul Bala Sadukhan & Ors.
Ct. 8
The appeal was listed on 7th September, 2022 for admission.
The appellant is not represented nor any accommodation is prayed
for on behalf of the appellant.
The appeal is directed against a judgment and decree dated
12th June, 2006 passed by the learned Additional District and
Sessions Judge, Fast Track, Court-III at Barrackpore thereby
affirming the judgment and decree dated 31st May, 2001 passed by
the learned Civil Judge (Junior Division), 4th Court at Sealdah in a
suit for declaration and permanent injunction.
The declaration of title is based on a plea of adverse
possession. The plaintiff is the present appellant. The plaintiff
claimed that he had been residing in the suit property for the last
40 years without interruption and at the relevant point of time, the
same has been recorded in the Municipal record. It is alleged that
the defendant has failed to prove that the plaintiff has been
occupying the suit property as a licensee. In support thereof, the
plaintiff relied upon Municipal sanction plan i.e. Exhibit-1,
certified copy of the assessment register showing name of the
plaintiff and the second plan sanctioned by the Municipality
in1974 (Exhibit 4). These documents were produced to show that
he was in possession of the suit property. The plaintiff alleged that
there has been no transfer of 26-11-34 and the plaintiff is able to
prove his possession uninterruptedly since 1955. It is alleged that
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he has been possessing the suit property adversely and true owner
could not resist the plaintiff. It is alleged that although the
defendant no.2, Tapan Sadukhan sold some property to Sukdeb
Sharma and Nathuram Sharma but actually no possession was
delivered and that the suit filed by Sukdeb and Nathuram against
the present plaintiff/appellant were dismissed for default. The
appellant further stated that no document was produced by the
defendant to prove that he has a licensee. It was stated that after he
acquire his title by adverse possession, he had inducted different
tenants and it would clearly establish that he is exercising his right
as owner thereof. Accordingly, the animus to enjoy the property is
established. The respondents contested the proceeding denying all
the allegations. It is contended that the plaintiff initially filed the
suit praying for declaration that the transfer made through the
deed dated 26-11-34 in favour of Monmatha Nath by Khetra
Mohan is nothing but Benmi transaction. It was contended that
plaintiff has failed to prove as to at which point of time he began
possession the property by exerting hostile title. He asserts also
that plaintiff was given small portion of land in the suit plot to run
a khatal. He submits also that the present plaintiff filed a suit
being No. T.S. 172/87 in respect of plot no. 1153, 1154, against
Nathuram Sharma as it appears from exhibit B and B1 which
show that plaintiff was not in possession of the suit property. He
submits that as the plaintiff is not in possession of the at least
portion of the suit property, he should pray for recovery of
possession also, and mere prayer for declaration will not be
maintainable.
The learned Trial Judge on the basis of the evidence on
record has arrived at a finding that the transfer of land by
Khatromohan Sadhukhan to Manmatho Nath Sadhukan in suit no.
1153, 1154 by deed dated 26-11-34 is virtually admitted, though
plaintiff/appellant initially prayed for a declaration of right title by
filing this suit on the plea that the deed quoted on 26.11.34 is
nothing but a Benami transaction. Subsequently, by amending the
plaint plaintiff/appellant has prayed for declaration of title on the
plea that he has acquired title on the ground of adverse possession.
it is to be mentioned here that original plaint has undergone
several amendments and the suit as it now appears is a suit for
declaration of title ground of adverse possession.
It is needles to mentioned that that in the order to take plea
of acquiring title by adverse possession, it is to be proved that by
asserting the hostile title against true owner, the plaintiff has been
possessing the property uninterruptedly for period more than
statutory period. Thus as soon as the plaintiff/appellant takes the
plea of adverse possession the plea that no transfer was actually
made to Manmathonath Sandhukhan on the basis of deed dt.
26.11.34 or that no possession was delivered to Manmathonath
Sandhukhan on the basis of the said deed can not have any leg to
stand. But it is surprising that plaintiff/appellant has taken both the
pleas at the same breath. It is not to case of the plaintiff/appelalt
that he or his predecessor has been possessing adversely the suit
property since the date of said transfer in spite of deed dt.
26.11.34.
Again plaintiff has not stated in his plaint or in his evidence
as to since which particular date he has been possessing the suit
property by asserting hostile tile against true owner. He has stated
by that since 1955 he has been running Khatal on a portion of the
suit property. But that does not mean that he came into possession
by dispossessing the real owner or asserting any hostile title
against the true owner. His such plea destroys his own case that no
possession was delivered on the basis of deed dt.26.11.34, rather
as it has been admitted by the plaintiff/appellant that he has not
been claming any possession since 26.11.34 till 19454. Again it is
the plea of the defendant/respondent that plaintiff/appellant was
permitted to run a Khatal on the suit property by the predecessor
of the present respondent and the plaintiff commenced his
possession in respect of portion of the suit property, as a
permissive possessor. It is also the case of the
defendant/respondent that the plaintiff/appellant was allowed to
come into possession of a portion of suit property by running a
Khatal, there was a caretaker named Bharat Singh who used to
look after the suit property on behalf the defendant by residing on
the suit property and here was a room of caretaker on the suit
property. this fact has been submitted by the plaintiff/appellant in
his evidence. He has stated that his father Khetromohan
Sadhukhan sold the entire land in Dag nos. 1153, 1154
appertaining the Khas no. 202 to Manmathonath Sadhukhan in
1934 and after selling said his father wend bank to plots holding
no.22. He has admitted even in his examination in chef that in
1955 one man of the defendant used to reside in a Kancha Ghar on
the suit property and at the time of taking possession that person
was present and plaintiff took possession on evicting him. That
goes to show that plaintiff's plea that no possession was delivered
on the basis of the deed dt. 26.11.34 or that defendant or their
predecessor was never possessing the suit property is a blatant lie.
Against Exhibit A series show that predecessor of the
plaintiff/appellant and the predecessor of the respondent were co-
sharer in the suit plots. Against the said C.S. and R.S. ROR show
that total area of plot no. 1153 and 1154 is 61 decimals although
plaintiff has field this suit praying for declaration in respect of
only 20.33 decimals and the deed of gift dt. 22.10.73 (although
has not been marked exhibit) shows that more than 20.33 decimals
in those tow plots was gifted along with property in other plots in
favour of present respondent no.2. In the instant case only
plaintiff/appellant Ashutosh Sadhu has deposed as P.W.1 and one
Dhanesh Ram has deposed as P.W.2. Plaintiff/appellant has stated
in his evidence that he will file counterfeits of rent receipt to show
that he used to collect rent from the tenant namely Dilip Bose,
Hari Charan Dubay, Brojonath Panday in 1960. But none of them
has come to support P.W.1. Even P.W. 2 Dhanesh Ram claiming
to be tenant under the plaintiff has stated only that he knows that
Ashu Babu resides and that Ashu Babu has a business of Khatal
which is situated near his house. He has stated also that since 1955
he knows Ashu Babu and he was a councillor of a particular ward
but even he has not stated that plaintiff/appellant has been running
his Khatal on the land forcibly evicting true owner or has been
possessing the said property exerting hostile against true owner.
We have carefully read both the orders. It is quite clear from
the evidence that the plaintiff/appellant has failed to establish by
strong and cogent evidence that plaintiff acquired the title by
adverse possession. The concurrent findings of fact are based on
oral and documentary evidence and in the facts and circumstances
of the case, both the courts have correctly applying the law had
returned findings against the appellant.
On such consideration, we do not find any reason to
interfere with the concurrent findings of fact arrived at by the
learned trial court as well as the Appellate Court.
In view of the aforesaid, the second appeal stands dismissed.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
