Gorakh Thakur & Ors vs Kalabati Devi & Anr
2023 Latest Caselaw 3028 Cal

28.04.2023 SL No.21 Court No.8 (gc)

SAT 267 of 2015

Gorakh Thakur & Ors.

Vs.

Kalabati Devi & Anr.

The appellants are not represented, nor any

accommodation is prayed for on behalf of the appellants.

The appeal is of the year 2015. The matter initially

appeared in the Warning List on 6th March, 2023 and

thereafter transferred to the Regular List on 21st March,

2023. Since then the matter is appearing in the list. The

appellants have due notice about the listing of the matter.

The appeal is still defective.

We have read the judgment of the Trial Court as

well as the First Appellate Court and the grounds of

appeal in order to find out whether the second appeal

involves any substantial question of law.

The appellate judgment and decree dated 10th

March, 2015 affirming the judgment and decree dated

13th June, 2011 passed by the Trial Court in a suit for

eviction and recovery of possession is a subject matter of

challenge in this second appeal. The learned Trial Judge

decreed the suit on contest. The plaintiff was able to

establish a better title than the defendant. The appellants

claimed acquisition of title by adverse possession.

However, the appellants could not prove the adverse

possession. The Trial Court has relied upon the following

decisions:-

1) Mahesh Chand Sharma Vs. Raj Kumar Sharma reported in AIR 1996 SC 869;

2) Gauran Devi Vs. Durga Das reported in AIR 1996 HP 112;

3) S.M. Karim Vs. Bibi Sakina reported in AIR 1964 SC 1254;

4) T. Anjanappa Vs. Somalingappa reported in (2006) 2 WBLR (SC) 933.

in considering the merits of the claim of the

appellants with regard to the adverse possession. The

deposition of Gorakh Thakur was conserved which would

clearly show that he was unable to establish adverse

possession. He could not say the date from which the

possession became adverse to the true owner. On the

contrary, P.W.-1 has clearly stated that they were in

permissive occupation and they were also not in

possession as they were found to be residing in a different

property. P.W.1 in his cross-examination has stated on

14th July, 2008 the defendants have encroached the suit

property. The defendants could not establish title over

the suit property. There was further encroachment

during the pendency of the suit which was also brought to

the notice of the learned Trial Judge by amending the

plaint. The First Appellate Court considered the materials

afresh and agreed that the finding of the learned Trial

Judge the defendants have failed to establish adverse

possession. The Appellate Court has also taken into

consideration the RSROR and LRROR to show that even

otherwise the record supports the possession and title of

the plaintiff in respect of the suit property.

The concurrent findings of facts are based on cogent

evidence and does not call for any interference.

Accordingly, the second appeal stands dismissed at

the admission stage.

However, there shall be no order as to costs.

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