Smt. Radharani Ghiri & Ors vs Sri Lalit Krishna Pramanik & Anr
2023 Latest Caselaw 1603 Cal

                                    SA 198 of 2014
                                         With
                                 IA CAN no.1 of 2012
                              Smt. Radharani Ghiri & Ors.
                                          Vs.
                          Sri Lalit Krishna Pramanik & Anr.


       Order dated: 10.03.2023


       The appellant is not represented nor any accommodation is prayed for

on behalf of the appellant.


       The department has reported that the defects pointed out by the

Additional Stamp Reporter in its report dated 16th March, 2012 have not been

removed as yet.


       We could have dismissed the second appeal at the admission stage for

non removal of the defects.


       However, instead of dismissing the second appeal, at the admission

stage for non removal of the defects dated 16th March, 2012 we have decided to

consider whether this second appeal involves any substantial question of law.

This second appeal is arising out of a judgment of affirmation passed by the

Learned Additional District Judge on 7th February, 2012 arising out of a

judgment and decree passed by the learned Civil Judge (Jr. Div.) on 24th

March, 2010 in a suit for eviction and recovery of khas possession.
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       We have read the judgment of the trial court, the 1st appellate court

and the grounds of appeal. The suit was decreed as the plaintiff was able to

establish their right, title and interest in respect of the suit premises. From the

judgments of both the courts it appears that the plaintiff has alleged that the

suit property previously belonged to the father of the plaintiffs Bipin Biheri

Pramanik. Bipin Behari died on 25th February, 1939. During his life time, the

suit land was settled in the name of Bipin Biheri at a rent of Rs.3.25 Paisa per

year from the original owner Abani Bandhab Panja. Abani during his life time

issued a Hukumnama in respect of the suit property in favour of Bipin. After

settlement Bipin constructed house on the said plot of land and was residing

there. Subsequently Abani filed a case for recovery of arrear rent from Bipin

Bihari in the year 1957 being Petty Case no.18 of 1997 in which a decree was

passed on 7th June, 1957.


       Bipin in discharge of his obligation has paid the entire decreetal

amount to Abani and the decree stood satisfied. Thereafter one Khudiram and

Narayan filed objection case under Section 44 (2A) of the West Bengal Estate

Acquisition Act against Bipin being objection case no.36/57. The said objection

case was rejected by the Revenue Officer on 2nd November, 1960 and the name

of Bipin in R.S.R.O.R was confirmed. After demise of Bipin, his wife, present

plaintiff being sons and one sister namely Snehalata inherited the said

property. Subsequently, Snehalata by a registered deed of gift dated 18th

January, 1988 transferred her share in the suit property along with other

properties in favour of plaintiffs. By reasons of such transfer the plaintiffs
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received half share each in the suit property and have been possessing the said

property in ejmail. Thereafter, plaintiff on 7th March, 2000 transferred .0060

acre of land out of 10 decimal of land of plot no.482 by a sale deed dated 7th

March, 2000 in favour of Arati Kali and Asit Kali. The said Arati Kali and Asit

Kali subsequently filed a suit against these plaintiffs/respondents claiming a

portion of the property forming part of the suit land. The suit was dismissed.

Subsequently plaintiffs transferred 0.0525 acre and 0.0090 acre of land in

favour of Susanta Maity and others by two registered deed of sale dated

16.05.2000 and 27.04.2001. After such transfer, the present

plaintiffs/respondents were in possession of remaining portion of suit plot

including the suit premises, being area of 0.0325 acre in equal shares.

The plaintiffs further claimed that mother of the plaintiffs inducted the

original defendant as tenant in the suit premises at a monthly rent of Rs.25/-

payable according to English Calendar month within 15th day of succeeding

month and the original defendant used to reside in the premises as tenant after

paying rent month by month to the mother of the plaintiffs without any rent

receipt till the death of the plaintiffs' mother. After the execution of the deed of

gift by the sister of the plaintiffs, they got the suit premises. The defendant

became their tenant and was residing as such tenant. The original defendant,

since November 1987, did not pay a farthing towards rent and became a

habitual defaulter. The defendant made a new construction adjacent to the suit

premises on the suit land without permission of the plaintiffs and also made

certain alterations in the suit premises.

It is alleged that in doing so the appellant caused damage to the suit

premises. The plaintiffs further alleged that in any event they recently required

the suit premises for their own use and occupation and they have no other

reasonable accommodation within Midnapur Town. The suit premises is

situated near the bus route at Sujaganj Mahalla, Midnapore and it is most

suitable for business. The original defendant was asked to vacate the suit

premises what the defendant refused, consequently, plaintiffs issued an

Eviction Notice u/s. 13 of WBPT Act dated 5th April, 2000 against the

defendants, which was received by the defendants on 7th April, 2000. By such

notice, the tenency of the defendants was terminated and original defendant

was asked to deliver the vacant possession on 1st June, 2000, but after expiry

of that period, defendant did not deliver vacant possession of the suit premises.

On the contrary the original defendant sent a reply letter dated 18th April, 2000

denying the plaintiffs' title over the suit property and also denying the landlord

tenant relationship. Hence this suit.

The original defendant contested this suit by filing written statement

and denied all the material facts stated by the plaintiffs. Defendant positively

pleaded before that plaintiffs have no right, title and interest in any portion of

the suit property and there is no landlord and tenant relationship in between

the plaintiffs and original defendant in respect of the suit premises.

Defendants have been possessing the suit property measuring 4 decimals in all

from 3rd March, 1970 publicly, peacefully, continuously, as of right asserting

hostile title therein adverse to the interest and the right of true owners for a

period over 12 years and by making constructing his own house thereon. The

said dwelling house has been assessed by the Midnapore Municipality. The

property is in his name under the holding no. 195 and the name of the

defendant has been recorded in the present L.R.R.O.R as "forceful possessor"

in respect of total 4 decimals of land. The defendant further pleaded that he

has his separate electric connection in the suit premises and has been paying

the electric charges to the Authority concerned. He has exclusive right, title,

interest and possession over the suit property and he challenged the plaintiffs

title over the suit premises and also challenged the transferable right of

plaintiffs over any portion of the suit property and prayed for dismissal of the

suit.

On the basis of the pleadings learned Court below framed as well as

nine issues to determine the suit.

Plaintiffs/respondent no.1 and other two witnesses were examined on

behalf of the plaintiffs and sixteen documents were exhibited on behalf of the

plaintiffs, as, Exbt. 1 to Exbt. 16 during trial.

The original defendant died and in his place, the present appellants

were substituted. Amongst them, defendant no.5 and other two witnesses have

been examined on behalf of the defendants and during trial, few documents

were exhibited on behalf of the defendant and marked as Exbt. A to Exbt. J.

On the basis of the aforesaid pleadings and evidence both oral and

documentary the learned trial court decreed the suit in favour of the plaintiffs.

The main defence of the defendant before the trial court was that the

defendants have acquired right in the suit plot by way of adverse possession.

The person who claims adverse possession must establish the date when he

claimed to have come into possession, the nature of his possession, whether

factum of possession was known to the other party, how long his possession

has continued and his possession has to be open hostile and undisturbed. The

defendant claimed that since 1987 he is in possession of the property in

question and to the extent of 4 decimal of land including the portion of the

property mentioned in the schedule of the plaint from 3rd March, 1970 publicly,

peacefully and continuously. The defendant however, failed to prove the

aforesaid claim. However, it reveals that he was in possession since the time of

the predecessor of the plaintiffs at least from November 1987 or at least from

the death of the mother of the plaintiffs. The plea of title and adverse

possession are mutually inconsistent. The defendant in the written statement

has alleged that the suit plot no.482 previously belonged to the Panjas and

thereafter Abani got it. Bipin did not purchase the property and acquired any

title therein.

Animus possidendi is one of the ingredients of adverse possession. The

person possessing the land should demonstrate the requisite animus to occupy

the property openly. The defendant is required to plea against the person from

whom he is claiming adverse possession. From the pleadings it appears that

the defendants believe that Panjas' are the owners of the suit land and

subsequently Abani became the owner, however, from the oral and

documentary evidence the plaintiff was able to prove successfully and establish

that they have acquired titled in respect of the suit land on the basis of the

various deeds. It is elementary that adverse possession has to be claimed

against the true owner. The defendants by their own showing have failed to

establish who is the true owner. The defendants although denied the title of the

plaintiffs they did not plea definite title of any other person. They stated that

Abani became the owner of the property but the evidence of record shows that

the plaintiffs acquired title in respect of the suit plot. Defendants could not

establish that their possession is hostile in relation to the plaintiffs.

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 calm, nec precario [see. Hemji

Waghai Jat v. 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 competitor. 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.

Consequently a person claiming title by adverse possession should

specifically state the area of land and period of possession. The person taking

the plea of adverse possession must at least show when possession becomes

adverse so that the starting point of limitation against the party affected can be

found. A mere allegation that there was an uninterrupted possession for more

than 12 years or that the defendant had acquired absolute title, is not enough

to raise such plea. Long possession is not necessarily adverse possession.

These are no presumption of adverse possession in law. The adverse

possession must be proved as a fact.

The defendants tried to plea and prove that payment of municipal tax

and electric connection in their favour are proved of title. The said documents

are not evidence of title. They are evidence of possession. Insofar as the record

of right is concerned in the RSROR the name of the defendants has not been

recorded as forcible owner and the certified copy of the LRROR in respect of the

suit land filed by the plaintiffs that Exbt.6 and 6A, there is nothing on record in

the remark column showing that the possession of the defendant is in forcible

possession. The defendants/appellants having failed to establish animus

possidendi of hostile possession is not entitled to any relief.

Both the courts have taken into consideration that in the RSROR the

name of the defendant has not been recorded as forcible owner and the

certified copy of the L.R.R.O.R of the suit property filed by the plaintiffs does

not show of any forcible possession of the defendant in respect of the suit land.

On the contrary the plaintiff was able to establish to right title and

interest in the suit property by producing the registered deeds dated 18th

January, 1988, 7th March, 2000 and 17th May, 2000. These deeds were marked

as exhibition.

Learned Trial court has relied upon Exbt.4, deed of sale, Exbt. 5

RSROR the deed of gift to information slip dated 26th June, 1996, Exbt. 7 and

earlier proceeding between Bipin and Kali as reflected from Exbt.9 and

Exbt.10, in order to arrive at a finding that the plaintiffs have been able to

establish the title in respect of the suit land. The concurrent findings of facts

are based on proper appreciation of evidence and correct appreciation of the

law.

Under such circumstances, we do not find any reason to admit the

second appeal.

The second appeal stands dismissed at the admission stage.

However, there shall be no order as to costs.

In view of the aforesaid CAN 1 of 12 (Old CAN No.2567 of 2012 stand

dismissed.

(Soumen Sen, J.)

(Uday Kumar, J.)