Haramani Saha Sarkar & Ors vs Sg
2022 Latest Caselaw 6438 Cal

                                                    SA 3 of 2022
Item-10.                                           CAN 2 of 2021
           09-09-2022

                                           Haramani Saha Sarkar & Ors.
                                                     Versus
  sg
             Ct. 8               Sri Sri Ishwar Radha Ballav Jiu Thakur & Ors.



                              The appeal was listed yesterday for admission. The

                        appellants are not represented nor any accommodation is prayed

                        for on behalf of the appellants.

                              The appeal is directed against a judgment and decree dated

                        22nd September, 2016 passed by the learned Additional District

                        Judge, Raiganj, Uttar Dinajpur thereby affirming the judgment

                        and decree dated 31st August, 2010 passed by the learned Civil

                        Judge (Junior Division), Raiganj in a suit for declaration and

                        permanent injunction.

                              The plaintiffs filed a suit for declaration based on

                        possession. The plaintiffs alleged that the plaintiffs are the owners

                        and possessors of the suit property i.e. "Nichahar Pukur" and till

                        the date of filing of the suit, they were in possession of the same

                        openly, adversely, continuously ousting the defendants and their

                        sebaits and had acquired the good valid title upon the suit

                        property. The plaintiffs alleged that there is an erroneous

                        recording in the LRROR showing the said portion as 'Dala'. The

                        plaintiff alleged that they used to carry pisci culture in the said suit

                        property and also cultivated in the Bockchara. Prsently the

                        plaintiffs are using the entire property as "tank fishery" and the

                        names have been duly recorded in the LRROR. However, the

                        portion over which there are now carrying on pisci culture was

                        erroneously recorded as 'Dala'. The said portion is part and parcel
                           2




of the bank fishery and ought to have been recorded in the said

plot. The plaintiffs alleged that the said classification as Dala and

separate recording in separate bata plot was/is not correct. The

defendants contested the suit by filing the written statement. The

defendants specifically contended that the plaintiffs have no right,

title, interest and possession over and in respect of the said

property. It was alleged that Pasupati Sarkar and Bhupati Sarkar

had no right, title, interest and possession upon the suit property

and the recording of their names in the LRROR is totally

erroneous. It was further alleged that the plaintiffs in their plaint

also admitted the same but they did not implead the concerned

BL&LRO as well as the State of West Bengal as parties in this

suit. It was contended that the suit property originally belonged to

Sri Sri Iswar Radhaballav Jiu Thakur (hereinafter referred to as

'deity'). The defendants categorically denied that sebaits of the

were dispossessed and Pasupati and Bhupati were in possession

over the suit property for more than 12 years openly, adversely

and continuously. In the ROR, the names of Pasupati and Bhupati

were recorded as forceful possessors.

      On the basis of the pleadings, the trial court framed

following six issues:

      1.

Is the suit maintainable in its present form?

2. Have the plaintiffs any cause of action in filing the suit?

3. Is the suit barred by limitation?

4. Have the plaintiffs any right, title and interest and

possession over the suit property?

5. Are the plaintiffs entitled to get the decree for

permanent injunction as prayed for?

6. To what other relief, the plaintiffs are entitled?

It is elementary that he could allege classification of title by

adverse possession. He who asserts classification of title by

adverse possession. The burden of proof lies upon him. Adverse

possession must be adequate in continuity, in publicity and extent

and a plea is required at the least to show when the possession

becomes adverse, so that the starting point of limitation against

the party affected can be found. [See AIR 1964 SC 1254(1256)]

It is also the duty of the party claiming adverse possession

must clearly state when adverse possession commenced and

nature of possession. P.W.-1 in his evidence has categorically

stated that:

"About 65 years ago my forefather dispossessed the defendants from the suit tank and the said fact came to my knowledge through Pasupati Sarkar and Bhupati Sarkar.

I can not say the actual date and year when the sevayits of the deity tried to take possession of the tank but failed."

The entry in the record of rights does not create any title in

favour of any person. It is true that it raised a presumption based

on possession but it does not automatically follow that the

possession was hostile as it does not confer any right, title and

interest of the person in possession. The record of right shows the

forceful possession. It does not automatically ripen into title. The

entry is made on the basis of the possession. The party challenging

an entry must adduce evidence to rebut the presumption of its

correctness. The plaintiffs could not establish their title to by

claiming of erroneous recording in the LRROR in respect of the

property in question as the evidence on record would show that

the deity has a clear right over the said property.

Exhibits 2 and 3 clearly established that the suit plots

belonged to the deity. Exhibit 3 establishes that the record of

rights stands in the name of deity. PW-1 in his evidence has

candidly admitted that he has no document as foundation of the

entry in column 23 of the RS khatian No. 1/2 of Maghiaparah

Mouza.

The learned Trial Judge has, in our view, rigthly relied upon

the decision of the Hon'ble Supreme Court (1981) 2 SCC 101

(AIR 1981 SC 707) and 37 CWN 810 (811), in which it is clearly

stated that:

"Mere possession by a person for any length of time would not raise an inference that such possession was in fact 'Adverse' against the real owner unless there is a manifest hostile animus to the knowledge of thereal owner.

If the foundation is found to be rotten; the presumption arising from the record-of-rights would be more than rubtted."

This judgment was assailed in the appeal. The Appellate

Court on appreciation of the evidence has concurred with the

findings arrived at by the learned trial court. The pleadings before

the learned Appellate Court as alleged that they are not only the

owner by virtue of the Exhibits 1, 2, 2(1), 2(2), 2(3) and 2(4) but

also by virtue of their right of adverse possession. However,

sometime before the Appellate Court they have conceded that the

original owner was the deity and the predecessor in interest

forcibly dispossessed the sebaits and taken over forcible

possession and same are reflected in Exhibit 2 series as "Jor

Dang" which means taking possession by force (Zabardasti

Kabza). The documents exhibited by the appellants would show

that their forefather were land grabber who captured the land of a

deity by force. The records also revealed that Pashupati Sarkar

was in police and thereafter in court also and who by using his

influence dispossessed the sebaits of the deity. Pashupati after

illegally grabbing the property transferred the same knowing fully

well that he is not the owner of the property. The pleadings could

not establish their title in the property. It is elementary that a

person cannot transfer better title, which he or she does not

possess (Nemo dat quod non habet).

In view of the evidence that the predecessor in interest had

no title to the suit property. All subsequent transfers are illegal is

no title could have based in law in favour of the subsequent

transfers. Moreover, entering the name in the LRROR does not

create any title. Admittedly, the predecessors in interest were not

having any title and as such, the transfer was sham, fictitious and

well motivated. The learned trail court as well as the First

Appellate Court has come to a finding that the appellants have

failed to prove animus possitendi. In the case of Karnataka Board

of Wakf vs. Govt. of India reported in (2004) 10 SCC 779

formulated the following principles that are required to be

followed in establishing a plea of adverse possession:

"a) on what date he came into possession

b) what was the nature of his possession

c) whether the factum of possession was known to other party

d) how long his possession has continued

e) his possession was open and undisturbed adverse possession has no equity in his favour"

In paragraphs 34 and 35 of the aforesaid judgment, the

Hon'ble Supreme Court has taken note of the fact that the good as

it exists is extremely harsh for the true owner. For the purpose of

brevity and convenience, the said paragraphs are reproduced

hereinbelow:

"34. Before parting this case, we deem it appropriate to observe that law of adverse possession which ousts and owner on the basis of inaction within limitation is irrational, illogical and disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This is substance would mean that law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongly taken possession of the property of the true owner.

35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loss its possession only because of his inaction in taking bank the possession within limitation."

The said view was also expressed in subsequent judgments,

namely, 2011 (8) SCJ 995; 2012 (2) ADL(SC) 101;

2012(1)RCR(Civ.)17; 2011(11) Scale 266; 2011(10)SCC 404, in

which it has been observed that:

"Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially ask the judiciary to place its stamp of approval upon the conduct that ordinary Indian citizen could find reprehensible."

In Gurudwara Sahib vs. Gram Panchayat Village Sirthala

and Anr. reported in 2013(7) Supreme 202, it has been held that

even if the plaintiff is found to be in adverse possession, it cannot

seek a declaration to the effect that such adverse possession has

matured into ownership.

The Trial Court as well as the First Appellate Court on

appreciation of the oral and documentary evidence, in our view

has correctly applied the law in the facts and circumstances of the

case. The concurrent findings of facts arrived at on the basis of the

evidence on record cannot be said to be perversed.

On such consideration, we do not find any reason to admit

the appeal. The appeal does not involve any substantial question

of law. The second appeal stands dismissed at the admission stage.

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