Sg vs Ct. 8 Kamal Sharma & Ors
2023 Latest Caselaw 2500 Cal

SAT 159 of 2015 Item-11.

12-04-2023 Maya Roy & Ors.

  sg
                                                   Versus
             Ct. 8                          Kamal Sharma & Ors.

The matter initially appeared in the warning list on 6 th

March, 2023 and thereafter transferred to the regular list on 21 st

March, 2023. There was a clear indication in the list that the

matter shall be transferred to the daily cause list on 21 st March,

2023 and since then, the appeal is appearing in the list. In spite of

having due notice and knowledge that the matter is pending, the

appellants are not represented. The appellants have also not taken

any step to remove the defects as notified by the Additional Stamp

Reporter on 16th April, 2015. It is clear that the appellants are not

interested to proceed with the matter.

We could have dismissed the appeal for non-removal of the

defects. However, we propose to have a look at the judgments of

both the courts in order to find out whether the second appeal

involves any substantial question of law.

The appeal is arising out of a judgment and decree dated 9 th

December, 2014 passed by the learned Additional District Judge,

3rd Court Malda affirming the judgement and decree dated 26th

February, 2013 passed by the learned Civil Judge (Junior

Division), First Court Malda in a suit for declaration of title,

eviction by revocation of license and khas possession. The suit

was decreed on contest.

The plaintiffs stated that the defendants' father had a very

good relationship with the original plaintiff namely, Madan

Chandra Sharma and after the death of the father of the

defendants, they became helpless and had no dwelling house. On

such compassionate ground and considering the fact that the

defendants became helpless, they were permitted to reside in their

suit premises for two years from 1st January, 2004 to 31st

December, 2006 as licensee on condition that they would vacate

the same after the licence period is over.

On the expiry of the licence period, Madan Chandra Sharma

withdrew the permission but the defendants did not vacate the suit

premises and ultimately the suit has been filed for eviction. The

grant of licence was proved by the plaintiffs and two senior

persons of the concerned locality who deposed as PWs 2 and 3.

They corroborated the testimony of the plaintiffs. DW-1 in his

examination has tried to make out a case of adverse possession.

He has admitted in his evidence that, he along with her mother

were living in the suit premises on the basis of the permission

granted by Madan Sharma.

On the basis of such evidence, it is clear that they were

permitted to occupy the suit premises as a licensee. The learned

Judge has rightly pointed out that the party claiming adverse

possession must say its sufficient clarity as to when adverse

possession commenced and nature of his possession. The

defendants are required to establish that when the possession

became adverse so that the starting point of limitation against the

party affected can be ascertained on the mere allegation that there

was uninterrupted possession for more than 12 years or that the

defendants had clear absolute title. It is not too enough to raise

such a claim. The learned Trial Court has rightly observed that

when one's possession began with permission, it could never

become adverse unless, hostile animus was exercised at a

particular point of time to the knowledge of the true owner.

On such consideration, we do not find any reason to

interfere with the order passed by the learned First Appellate

Court affirming the judgment of the learned Trial Court.

The second appeal fails. However, there shall be no order as

to costs.

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