Calcutta High Court (Appellete Side)
Ramjan Ali @ Lutfar Rahaman vs Najmul Huda Chowdhury & Ors on 9 February, 2023
50 09.02.2023 SAT 85 of 2016
D Hira
Ct-08
CAN 9866 of 2017
Ramjan Ali @ Lutfar Rahaman
Vs.
Najmul Huda Chowdhury & Ors.
The appellant is not represented nor any
accommodation is prayed for on behalf of the
appellant.
This matter is appearing in the list since 6th
February, 2023.
The judgment and decree of the Trial Court
dated 13th December, 2010 in a suit for preliminary
for partition is a subject matter of challenge in the
second appeal.
Briefly stated, the plaintiff/respondent no. 1
has filed a suit for partition in respect of A schedule
property consisting of plot no. 2129, 2127 and
3386 in mouza Furfura under Jangipara P.S.
claiming, inter alia, that Rajia Khatoon Bibi and
Habiba Khatoon Bibi were the original owner of A
schedule property. The plaintiff/respondent no. 1
Najmul Huda Chowdhury is the son of Rajia
Khatoon who transferred her 50 per cent share in
the A schedule property in favour of the plaintiff
and the defendant no. 1 and the appellant Ramjan
Ali along with other got other 50 per cent share of A
schedule property by way of transfer from Habiba
Khatoon. In spite of such transfer it is alleged that
the defendant no. 1/ present appellant demanded
the entire A schedule property on the plea of
adverse possession in respect of 50 per cent share
of the plaintiff. Hence, the respondent no. 1/
plaintiff filed the T.S. no. 85 of 1997 for partition.
On the other hand, the defendant no.
1/appellant denied the material allegations stated
by the plaintiff/respondent but admitted the
transfer of share by Rajia Bibi to her son
plaintiff/respondent. The denied the possession of
the plaintiff/respondent and/or claimed the title by
way of adverse possession.
On the basis of oral and documentary evidence
the Trial Court declared that the plaintiff jointly has
half-share in the suit property and the defendant
no. 1 has half share also in the suit property and
passed certain consequential directions.
The defendants preferred an appeal.
The appellate Court concurred with the findings
of the Trial Court.
It appears from the pleadings as summarized by
the Trial Court that the defendant claimed himself
as bargadar and subsequently he claimed to have
possessed the suit property by way of adverse
possession. He claimed to have constructed pucca
buildings in plot no. 2127 and 2125. However,
from record of rights it appears that plot no. 2127
is a doba land. The defendant could not prove that
they possessed the suit property uninterruptedly
and continuously from a specific date for a period
of twelve years.
They could not establish the three ingredients
of adverse possession namely nec vi. Nec clam, nec
precario, that is to say, without force, without
secrecy and without permission. He also could not
specify the date from which he was in adverse
possession. It was on such consideration the claim
of the defendant as owners in respect of two suits
were denied. The appeal Court in affirming the
order has taken note of the fact that the defendant
no. 1 did not mention it either in the written
statement or before the appellate Court the date
from when he has possessed the share of the
plaintiff adversely. He admitted execution of the
sale deed dated 28th October, 1997 and 19th July,
1992 respectively in favour of the
plaintiff/respondent no. 1 by his mother Rajia Bibi.
The concurrent findings of fact. The
observation of the appellate Court in this regard
are:
"Ld. Court below has relied upon the assertion
of the plaintiff to the effect that if the defendant no.
1/present appellant possessed the suit property
after execution of sale deed dated 11.02.1990 he
could not have possessed the suit property for more
than 12 years. Ld. Court below has also explained
that the pleading as well as evidence of the title suit
goes to show that the defendant claimed himself as
bargadar initially and subsequently, claimed
himself the adverse possession of the suit property.
But, there is no date from which he was in avrse
possession in the suit property, rather it is deposed
by him that he did not know the plaintiff and he
had no knowledge about the existence of the
plaintiff where it is necessary that the defendant
should in possession of the suit property adversely
within the knowledge of the actual owner. Ld.
Court below also relied the settled principle in law
in respect of possession of suit property by the
plaintiff respondent stating to the effect that "the
possession of one co owner reflects the possession
of other co owners in respect of property in
question and thereby Ld. Court has rightly
adjudicated that the plea of defendant/appellant
that the plaintiff/respondent has not in possession
in respect of the suit property has no merit in the
eye of law."
In view thereof, we could not find any
substantial question of law involved in this second
appeal. The findings of facts are based on proper
appreciation of the evidence of law.
SAT 85 of 2016 stands dismissed along with the
application.
(Uday Kumar, J.) (Soumen Sen, J.)
