Page No.# 1/7 vs Anjali Das And 3 Ors
2025 Latest Caselaw 907 Gua

Gauhati High Court

Page No.# 1/7 vs Anjali Das And 3 Ors on 6 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/7

GAHC010276592024




                                                          2025:GAU-AS:7623

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : RSA/24/2025

         DAYAMOYEE RAY CHALIHA AND 2 ORS
         D/O LATE MAHENDRA CH. RAY,
         RESIDENT OF VILLAGE MAJPARA (DOLAIGAON PART III) PO AND DIST
         BONGAIGAON, ASSAM

         2: SRI BIMAN RAY
          S/O LATE MAHENDRA CH. RAY

         RESIDENT OF VILLAGE MAJPARA (DOLAIGAON PART III) PO AND DIST
         BONGAIGAON
         ASSAM

         3: SMTI CHAMPA CHOUDHURY
          D/O LATE MAHENDRA CH. RAY

         RESIDENT OF VILLAGE MAJPARA (DOLAIGAON PART III) PO AND DIST
         BONGAIGAON
         ASSA

         VERSUS

         ANJALI DAS AND 3 ORS
         W/O LATE GAJENDRA NARAYAN DAS,
         RESIDENT OF J.N ROAD GOALPARA, PS AND DIST GOALPARA, ASSAM

         2:SMTI BORNALI DAS

          D/O LATE GAJENDRA NARAYAN DAS

         RESIDENT OF J.N ROAD GOALPARA
         PS AND DIST GOALPARA
         ASSAM

         3:SRI TRIDIP DAS
                                                                         Page No.# 2/7


          S/O LATE GAJENDRA NARAYAN DAS

          RESIDENT OF J.N ROAD GOALPARA
          PS AND DIST GOALPARA
          ASSAM

          4:SRI RAHUL DAS
           S/O LATE GAJENDRA NARAYAN DAS

          RESIDENT OF J.N ROAD GOALPARA
          PS AND DIST GOALPARA
          ASSA

              For the Appellant(s)    : Mr. A. Dasgupta, Sr. Advocate
                                      : Mr. A. Das, Advocate
              For the Respondent(s)   : Mr. H. Das, Advocate


               Date of Hearing        : 06.06.2025

               Date of Judgment       : 06.06.2025



                               BEFORE
                HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Mr. A. Dasgupta, the learned Senior counsel assisted by Mr. A. Das, the learned appearing on behalf of the appellants and Mr. H. Das, the learned counsel appearing on behalf of the respondents.

2. The present appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') challenging the judgment and decree dated 19.09.2024 passed by the learned District Judge, Bongaigaon in Title Appeal No.02/2015 thereby affirming the judgment and decree dated 31.07.2015 passed in Title Suit No.27/2006 passed by the learned Civil Page No.# 3/7

Judge, Bongaigaon (hereinafter referred to as 'the learned Trial Court') whereby the suit of the plaintiffs was decreed.

3. The instant appeal has been taken up at the stage of Order XLI Rule 11 of the Code to ascertain as to whether any substantial question of law can be formulated in terms with Section 100(4) of the Code.

4. Mr. A. Dasgupta, the learned Senior counsel appearing on behalf of the appellants has proposed two questions of law which are mentioned in the Memorandum of Appeal as A and B and submitted that the said two questions of law be formulated as substantial questions of law in the present appeal. The said two questions of law so proposed are reproduced herein under:

"A. Whether defendants acquired right of adverse possession in view of the fact that neither the deceased father of the plaintiffs took possession of the suit land which claimed to had been purchased on 03.10.1972 and the suit was instituted in the year 2006?

B. Whether right of possession of the suit land extinguished in view of section 27 of the Limitation Act, 1963 in as much as recovery of possession on the basis of relevant sale deed is barred by limitation as contained in article 65 of the Limitation Act, 1963?"

5. The question which is being taken up for consideration by this Court at this stage is as to whether the two questions so proposed can at all be formulated as substantial questions of law in the instant appeal.

6. In order to ascertain the same, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

Page No.# 4/7

7. For the sake of convenience, the parties herein are in the same status as they stood before the learned Trial Court.

8. It is seen that the predecessor-in-interest of the respondents in the instant appeal had filed a suit being Title Suit No.27/2006 before the Court of the learned Civil Judge, Bongaigaon seeking declaration of right, title and interest; recovery of khas possession as well as for permanent injunction.

9. The case of the plaintiffs is that a plot of land admeasuring 0 Bighas 2 Kathas 18 Lechas covered by Khatian No.66 Dag No.599 and Myadi Patta No.36 (old) 39 (new), Dag No.599/983 (old)/195 (new) situated at village Dolaigaon Part-II, Circle Bongaigaon in the district of Bongaigaon was purchased by the plaintiffs vide a deed of sale dated 03.10.1972.

10. It is the further case of the plaintiff that after purchase, the plaintiff was delivered the possession and the plaintiff thereupon mutated his name in the revenue records and paid the land revenue. The plaintiff also stated that he had constructed a well-marked boundary having pillar and brick wall. It is the further case of the plaintiff that the plaintiff was working as a cashier in the State Bank of India, Goalpara since long back for which he had to reside at Goalpara with his family and he occasionally used to visit the suit land. Upon his retirement from service, when he intended to settle up at Bongaigaon by constructing a dwelling house over his suit land and further development of the land, the defendants, who having no right, title, or interest over the suit land, interfered with the possession of the plaintiff and encroached the suit land in the month of January, 2006. Thereupon the plaintiff filed the said suit seeking for the reliefs, as above stated.

Page No.# 5/7

11. The defendants filed their written statement. In the written statement, the defendants categorically denied that the plaintiff had purchased the suit land from Late Mahendra Ray. Further to that, it was the specific case of the defendants as could be seen in paragraph Nos. 13 and 14 of the written statement that the plaintiff for the last 34 years was not in possession of the suit land and even if the plaintiff had purchased the suit land, the said title had already extinguished under Section 27 of the Limitation Act, 1963.

12. On the basis of the pleadings, the learned Trial Court framed as many as 12 issues which being relevant are reproduced herein under:

"1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable in its present form?

3. Whether the suit is bad for non-joinder of parties?

4. Whether the suit is barred by limitation and hit by the provisions of section 27 Limitation Act?

5. Whether the suit is bad for waiver, estoppel and acquiescence?

6. Whether the plaintiff purchased the suit land from the Late Mahendra Ch.

Ray on 03.10.1972 by executing a registered sale deed?

7. Whether the suit land is properly described?

8. Whether the plaintiff has got his right, title, interest and possession over the suit land?

9. Whether the defendants has got their right, title, interest with possession over the suit land?

10. Whether the defendants dispossessed the plaintiff from the suit land?

Page No.# 6/7

11. To what relief/reliefs the parties are entitled to?

12. Whether the plaintiff is entitled to the relief as prayed for in the plaint?"

13. On behalf of the plaintiff, three witnesses were examined and various documents were exhibited. On behalf of the defendants, three witnesses were examined, but no documents were exhibited. The learned Trial Court passed the judgment and decree thereby decreeing the suit in favour of the plaintiff and further holding that the suit was neither barred by limitation nor hit by the provisions of Section 27 of the Limitation Act, 1963. While deciding the issue No.(6), the learned Trial Court duly observed that the plaintiff had duly purchased the suit land from Late Mahendra Chandra Ray on 03.10.1972 by executing a registered sale deed. On the basis of the findings so arrived at, the learned Trial Court had decreed the suit.

14. The defendants being aggrieved preferred an appeal before the Court of the learned District Judge, Bongaigaon which was registered and numbered as Title Appeal No.2/2015 and the said appeal was dismissed vide a judgment and order dated 19.09.2024 and it is under such circumstances, the present appeal has been filed.

15. In the backdrop of the above, the question arises as to whether the two questions of law so proposed can at all be formulated as substantial questions of law. In the opinion of this Court, the said two proposed questions of law are one and the same which relates to as to whether the defendants have been able to prove adverse possession over the suit land on the basis that the plaintiff even after purchasing the suit land on 03.10.1972 did not institute any suit proceedings till 2006. It is well settled proposition of law that if a party claims adverse possession, such claim of adverse Page No.# 7/7

possession has to be against the true owner. In the instant case, the defendants do not even admit that the plaintiff is the owner of the suit land and as such, the question of claiming adverse possession is totally misconceived.

16. It is well settled that for a person to claim adverse possession, he has to prove three necs i.e. nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in publicity, continuity and in extent. There is not a pleading in the written statement in respect to the three ingredients for the purpose of proving adverse possession.

17. Considering the above, it is therefore the opinion of this court that the questions of law which have been proposed cannot be framed as substantial questions of law in the instant appeal. Accordingly, as there are no substantial questions of law that can be framed in the instant proceedings, the instant appeal cannot be proceeded for which the appeal stands dismissed.

18. Taking into account that the appeal has been dismissed in the stage of Order XLI Rule 11 of the Code, this Court is not inclined to impose any costs.

JUDGE

Comparing Assistant