Gauhati High Court
On The Death Of Banabashi Baishnab ... vs The State Of Assam And Ors on 5 October, 2023
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GAHC010120452012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/37/2012
ON THE DEATH OF BANABASHI BAISHNAB HIS LEGAL HEIRS BISWA
BAISHNAB SON and ANR
KRISHNA MAHANTA DAU, AS PER HON'BLE COURT'S ORDER DTD.
26/6/2012 IN MC NO. 1052/2012
VERSUS
THE STATE OF ASSAM AND ORS
REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI-5
2:THE DEPUTY COMMISSIONER
BARPETA
P.O. and DIST. BARPETA
ASSA
Advocate for the Petitioner : B CHAKRAVARTY
Advocate for the Respondent : MS B DUTTA
Linked Case : MC/2552/2014
ON THE DEATH OF BANABASHI BAISHNAB HIS LEGAL HEIRS BISWA
BAISHNAB SON and ANR
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VERSUS
THE STATE OF ASSAM AND ANR
------------
Advocate for : MR.S K DAS
Advocate for : appearing for THE STATE OF ASSAM AND ANR
:: PRESENT ::
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Appellants : Mr. B. Chakravarty,
Advocate.
For the Respondents : Mr. D. Mazumdar,
Addl. Advocate
General, Assam.
Date of Hearing : 19.09.2023
Date of Judgment : 05.10.2023.
JUDGMENT AND ORDER (CAV)
Heard Mr. B. Chakravarty, learned counsel representing the
appellants as well as Mr. D. Mazumdar, the learned Addl. Advocate,
General, Assam appearing for the State respondents.
2. This is a Regular Second Appeal under Section 100 of the Code of
Civil Procedure (CPC) whereby the judgment dated 12.12.2011 passed
by the court of Addl. District Judge (FTC), Barpeta in Title Appeal
No.19/2004, reversing the judgment and decree dated 07.10.2004
passed by the court of learned Civil Judge (Senior Division), Barpeta in
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Title Suit No.13/2000, is under challenge.
3. Late Banabashi Baishnab purchased 1 Bigha 3 Khathas 13 Lechas of
land covered by Old Dag No.742 of village- Kalahbhanga under Mouza-
D.C. Baushi of Kamrup District. The land was purchased from Brajabashi
Aditya and Binod Bihari Aditya on execution of registered Sale Deed
No.3555 dated 01.07.1958. Since then, Late Banabashi Baishnab has
been occupying the said land by constructing a temple.
4. Subsequently, the respondent State settled the said land in favour of
the Fire Service Department of Barpeta. Therefore, Late Banabashi
Baishnab filed the suit seeking his right, title and interest in the said land.
5. The respondent (defendant in the said suit) denied the aforesaid
facts. They claim that the said land is covered by Dag No.1505 of
Barpeta Road Town under Gobardhan Mouza and it is a Government
land. The respondent further submitted that Late Banabashi Baishnab has
been occupying the said land by constructing a dwelling house and a
temple.
6. The respondent submitted that the ritual of issuing notice under Rule
18(2) of the Assam Land and Revenue Regulation, 1886 has been
discontinued as per Government Notification No.(LR-26)96/pt/13-A dated
21.04.1997. According to the respondent, Late Banabashi Baishnab was a
trespasser who encroached Government land and that is why the land
was handed over to the Fire Service Department.
7. On the basis of the pleadings of the parties, the trial court framed the
following issues:
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1. Whether there is cause of action of the suit?
2. Whether notice under Section 80 CPC was served upon the
defendant?
3. Whether the suit is barred under Section 154 of Assam Land and
Revenue Regulation?
4. Whether plaintiff has purchased the suit land by registered Sale
Deed No.3555 dated 01.07.1958 from Brajabasi Aditya and others?
5. Whether the plaintiff was evicted by C.O. of Barnagar Circle on
28.06.2000 as per order of Encroachment Case No.5/99/2000?
6. Whether notice under Rule 18(2) of Assam Land and Revenue
Regulation, 1886 was served upon the plaintiff?
7. Whether plaintiff is in possession of the suit land for more than 30
years adversely, openly, continuously against the Govt. and
acquired right, title and interest upon the suit land?
8. Whether the plaintiff is entitled to decree as prayed for?
8. During the trial of the case, both sides examined witnesses and the
trial court decreed the suit in favour of the respondent/plaintiff.
9. The first appellant court allowed the appeal by reversing the
judgment passed by the trial court.
10. The present second appeal was admitted for hearing upon the
following substantial questions of law:
(I) Whether the learned first appellate court was justified in
dismissing the suit of the plaintiff for declaration of right, title and
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interest over the suit land, by holding that the plaintiff could not
prove that Dag No.742 was converted to Dag No.1505, when the issue
no.4 was answered in favour of the plaintiff and when Ext.-B
revenue record shows that the plaintiff is in possession of the land
in Dag No.1505.
II. Whether the suit of the plaintiff for declaration of right, title
and interest over the suit land is hit by Section 154 of the Assam Land and
Revenue Regulation 1886?
11. I have considered the submissions made by the learned counsels of
both sides.
12. The entire suit stands on a single issue that the appellant has been
occupying a plot of Government land for a period of 30 years
continuously and openly and therefore, he has perfected his right, title
and interest over the said plot of land by way of adverse possession.
13. In State of Rajasthan v. Harphool Singh (2000) 5 SCC 652, the
Supreme Court has held as under:
"So far as the question of perfection of title by adverse possession and that too
in respect of public property is concerned, the question requires to be considered
more seriously and effectively for the reason that it ultimately involve destruction of
right/title of the State to immovable property and conferring upon a third party
encroacher title where, he had none. The decision in P. Lakshmi Reddy vs L. Lakshmi
Reddy [AIR 1957 SC 314], adverted to the ordinary classical requirement - that it
should be nec vi nec clam nec precario - that is the possession required must be
adequate in continuity, in publicity and in extent to show that it is possession adverse
to the competitor. It was also observed therein that whatever may be the animus or
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intention of a person wanting to acquire title by adverse possession, his adverse
possession cannot commence until he obtains actual possession with the required
animus. In the decision reported in Secretary of State for India in Council vs Debendra
Lal Khan (1933) LR (LXI) I.A. 78 (PC), strongly relied for the respondents, the Court laid
down further that it is sufficient that the possession be overt and without any attempt
at concealment so that the person against whom time is running, ought if he
exercises due vigilance, to be aware of what is happening and if the rights of the
crown have been openly usurped it cannot be heard to plead that the fact was not
brought to its notice. In Annasaheb Bapusaheb Patil & Others vs Balwant alias
Balasaheb Babusaheb Patil (dead) by Lrs etc. [AIR 1995 SC 895], it was observed that
a claim of adverse possession being a hostile assertion involving expressly or impliedly
in denial of title of the true owner, the burden is always on the person who asserts
such a claim to prove by clear and unequivocal evidence that his possession was
hostile to the real owner and in deciding such claim, the Courts must have regard to
the animus of the person doing those acts."
14. Mere possession of land for long time does not provide title. In order
to acquire title, one has to possess land continuously and openly and he
has to show that he has challenged the title of the actual owner during
that period. In the case in hand, the appellant may be possessing the
land for a long time, but he never challenged the title of the respondent.
The learned first appellate court correctly decided that the appellant
never acquired right, title and interest over the suit land by way of
adverse possession.
15. The appellant also failed to prove that the Dag No.742 was
converted to Dag No.1505.
16. Section 154 of the Assam Land and Revenue Regulation, 1886 bars
the jurisdiction of civil court regarding validity of any settlement. The
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appellant challenged the settlement order in the suit. Therefore,
jurisdiction of the civil court is barred.
17. I have found that the learned first appellate court correctly
appreciated the legal aspects and arrived at a correct finding.
18. For the aforesaid reason, I find that the present appeal is devoid of
merit and stands dismissed accordingly.
Send back the LCR.
JUDGE
Comparing Assistant
