Ct. 8 vs Sg
2023 Latest Caselaw 139 Cal

SAT 205 of 2014 Item-

05-01-2023

106.

                                              Sarif Mallick
          Ct. 8                                    Versus
 sg
                                           Prabhat Dutta & Ors.

The matter appeared in the warning list on 29 th November,

2022 and thereafter transferred to the regular list on 5th December,

2022. There was a clear indication in the list that the matter shall

be transferred to the daily cause list on 5 th December, 2022 and

since then the appeal is appearing in the list.

The matter appeared initially on 17th November, 2021 when

none had appeared on behalf of the appellant. Noticing the

defects, we directed the appellant to remove the defects by 6th

December, 2021, in default, the appeal would be dismissed. Since

then, no attempt ahs been made to remove the defects.

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

defects and not showing any interest to proceed with the matter.

However, we have considered the memorandum of appeal along

with the impugned judgment in order to find out whether the

second appeal involves any substantial question of law.

The decree dated 22-08-2013 passed by the learned Civil

Judge (Senior Division) affirming the judgment and decree dated

10-08-2010 in a Title Suit No. 40 of 2006 is the subject matter of

challenge in this second appeal.

The plaintiffs filed a suit for eviction and khas possession.

Briefly stated, the plaintiffs are the owners of the schedule

premises and the defendant is the monthly tenant at will in respect

of the suit premises. The defendant committed default in payment

of monthly rent since May, 2003 and has caused damage to the

suit premises. The defendant was duly terminated by a notice

dated 27th January, 2006. In spite of service of notice, the

defendant did not vacate the suit premises with the expiry of

February, 2006 and was occupying the suit property as trespasser

on and from 1st March, 2006. The defendant in the written

statement has stated that the suit property is non-specific and

vague. Moreover, there is no landlord-tenant relationship between

the plaintiffs and defendant. On the contrary, the defendant has

been continuously residing at the suit property for almost 20 years

and has claimed acquisition of title by adverse possession. The

defendant also denied service of notice.

On the basis of the aforesaid pleadings and the evidence,

both oral and documentary, the Trial Court decreed the suit in

favour of the plaintiffs. In decreeing the suit, the learned Trial

Judge has relied upon the record of rights that were marked as

exhibit-1 series. The said document recorded the names of the

plaintiffs. The defendant however, could not prove any document

in support of its possession. The defendant also could not establish

his right to the property on the basis of the adverse possession.

The law is well-settled but mere continuity without proof of ouster

will not ripen to absolute ownership. The ordinary classical

requirement of adverse possession is that it should be nec vi, nec

clam, nec precario [see. Hemaji Waghaji Jat vs. Bhikhabhai

Khengarbhai Harijan reported in (2009) 16 SCC 517 (para 14

and 23)]. The possession required must be adequate in continuity,

in publicity and in extent to show that it is possession adverse to

the competitior. A person who bases his title on adverse

possession must show by clear and unequivocal evidence that his

title was hostile to the real owner and amounted to denial of his

title to the property claimed.

The defendant has failed to establish his claim. Moreover,

the plaintiffs were able to establish their better title in contrast to

the quality of evidence produced in defence and in our view, the

Trial Court as well as First Appellate Court were justified in

decreeing the suit.

Insofar the service of notice is concerned, in our view, the

findings arrived at by the Trial Court as well as First Appellate

Court on appreciation of proper interpretation of Section 27 of

General Clauses Act, read with Section 114 of the Evidence Act

and the decision reported in 23 CWN 77 (Harihar Banerji &

Ors. v. Ramsashi Roy & Ors.). In the said decision it has been

clearly stated:

"If a better properly directed containing a notice to quit is proved to have been put into the Post Office, it is presumed that the letter reached its destination at the proper time, according to the regular course of business of the Post Office and was received by the person to whom it was addressed. That presumption would apply with greater force to registered letters."

The service of notice is adequately proved. The notice was

sent to the correct address of the defendant, the defendant pre-

paid.

In view thereof, we do not find any reason to admit the

second appeal. The second appeal does not involve any substantial

question of law.

The second appeal stands dismissed at the admission stage.

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