Bijali Saha And Ors vs Riman Saha

[1] Heard Mrs. Sujata Deb (Gupta), learned counsel appearing for the appellants. Despite receipt of notice the sole respondent has not entered appearance till today.

[2] It has been reflected in the order sheets that several opportunities were afforded to the respondents, but till today none has entered appearance on behalf of the respondents and today the case has been fixed for hearing.

[3] The brief facts of the case are that vide order dated 05.08.2019, the instant appeal was admitted on the following substantial question of law which is as follows:

"Whether the order remanding the case for framing of the specific issue on adverse possession and from that stage to commence the trial afresh is sustainable in view of the statement of fact as stated by the defendant-appellants in para-12 of the written statement which has laid that the defendant had instituted the suit for declaration of title for adverse possession separately and in terms thereof, when no specific pleadings beyond that in respect of the adverse possession is available in the written statement."

[4] In course of hearing, Mrs. Deb (Gupta), learned counsel appearing for the appellants has drawn my attention to the judgment of the learned First Appellate Court reversing the judgment of the learned trial court. While dismissing the judgment and decree passed by the learned trial court, the First Appellate Court had observed that since no specific issue relating to the adverse possession was framed by the learned trial court, the findings returned by the learned trial court deserve interference and thus, the First Appellate Court remitted the case back to the trial court. The observation and findings of the learned First Appellate Court lead this Court to peruse the judgment passed by the trial court.

[5] In the written statement, the defendant had specifically stated that prior to the institution of the present suit the defendant on the same cause of action had filed a suit for declaration of title of the said suit land by way of adverse possession and for the injunction before the learned Civil Judge, Jr. Division, Agartala. It is further stated in the written statement that the suit land originally belongs to Manindralal Saha, the grandfather of the defendant. During his lifetime in or about January, 1995 the father of the defendant Swapan Saha forcefully occupied the suit land and constructed a tin roof hut on the suit land denying the title of Manandralal Saha and in or about August 1995, the father of the defendant obtained a domestic electric connection in the said hut.

[6] It reveals from the record that both the plaintiffs and the father of the defendant were the full-blooded brothers and sisters being the descendents of late Manindralal Saha and naturally they possessed the suit land without any dispute with each other being the descendents of the original owner.

[7] From the averments made in the written statement and the evidence led by the defendant, in my opinion, the defendant has failed to project any case of adverse possession. The findings of the first appellate court are that no issue relating to adverse possession was framed by the trial court.

[8] After perusal of the judgment, this Court finds that the trial court has discussed the facts at length regarding the adverse possession, though no specific issue relating to the adverse possession was framed. The trial court after considering the evidence, has came to the conclusion that the defendant could not discharge the onus of proof that his predecessor forcefully occupied the suit land hostile to the title of original owner in January, 1995. The learned trial court had further observed that on the contrary, it is proved that Manindralal Saha handed over the possession of the suit land in favour of the plaintiffs at the time of execution of the Exbt.1 and there is no cloud on the right, title, interest and possession of plaintiffs over the suit land. The plaintiffs have produced the registered sale deed No.1-2858 dated 30.03.2002 (Exbt.2).

[9] It is also revealed that the plaintiffs are also regularly paying the revenue to the Government as the owner of the suit land. While deciding the issue Nos. 1 and 4, the learned trial court had specifically observed that the plea of adverse possession of the defendant has no basis while plaintiffs have clear possession over the suit property and defendant having disturbed their possession by causing obstruction relief of injunction is justified.

[10] The settled principle proposition is that if a fact is taken into account while deciding the case and accordingly having discussed and given a finding, then non-framing of issue on this particular question of fact cannot be said to be fatal and hence, such findings do not cause any prejudice to the defendant. This Court may profitably refer a decision of Shri Sukumar Roy and Others v. Shri Rabindra Chandra Roy and another, reported in AIR 1994 GAUHATI 67, wherein, similar issue was raised and the Court had held thus:

"11. So, in view of the evidence adduced by the parties as pointed out above, I am of the opinion that the absence of an issue, namely, whether the defendants acquired title to the suit land by virtue of adverse possession did not lead to a mistrial sufficient to vitiate the decision. Both the courts below after elaborate discussion of evidence arrived at the conclusion that defendants never possessed the land in suit or exercised any act of possession. On perusal of the evidence I, too, feel that both the courts below rightly made the findings. In this context it has to be borne in mind that the question of adverse possession is a question of fact. Thus a person who claims title on the basis of adverse possession must establish the same by unequivocal evidence that his possession was hostile to the real owner and amounted to denial of title of the true owner. In the instant case defendants adduced evidence to prove their hostile possession but failed. On perusal of the pleadings and evidence I find that the parties went to the trial with full knowledge of each others case and that being the position, the non-framing of such additional issue as claimed, even if the same was necessary, has not caused any prejudice to any of the parties and they had, in fact, got opportunities to establish their respective cases. Such being the position, I am unable to accede to the submission of Mr. Bhattacharjee that the case should be remanded for effective determination after formulating an additional issue as indicated above."

[11] In the instant case also, the defendant had taken a plea of adverse possession in his written statement. He also had adduced evidence knowingfully well what his stand in the case was, but he could not fulfill the essential ingredients necessary to the claim of title by way of adverse possession.

[12] I have also perused the evidence on record. On the basis of the evidence, the learned trial court has dealt with the issue of adverse possession, though it was not specifically formulated. As observed earlier and relying upon the decision of Sukumar Roy (supra), according to this Court, non-framing of issue relating to adverse possession will not in any way vitiate the case of the defendant since he received all opportunities to establish his case claiming the title by way of adverse possession, but he has failed to discharge his liability under Section-106 of the Evidence Act.

[13] It is settled proposition of law that the burden lies who claims acquisition of title by way of adverse possession and the right of the true is extinguished by elapse of statutory period and in that process the defendant would have to successfully meet the essential ingredient of adverse possession. Mere assertion that he has acquired title by way of adverse possession, would not be enough for claiming title by way of adverse possession. He has to establish the animus possidendi against the plaintiffs and also he has to establish the nature of hostility against the plaintiffs.

[14] While dealing with the requirements in regard to the nature of evidence required to acquire a title by way of adverse possession, a three Bench decision of the Apex Court in Ravinder Kaur Grewal & Others v. Manjit Kaur & Others, reported in (2019) 8 SCC 729 has observed as under:

"The adverse possession requires all the three classic requirements to co-exist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge, visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. The mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. "Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor."

[15] In absence of any of these ingredients, the claim of adverse possession will definitely fail. The finding of the first appellate court is that non-framing of specific issue relating to adverse possession vitiates the case of the defendant does not hold good and contrary to law when the relevant facts are adequately discussed and parties to the lis get opportunities to participate in the proceeding relating to particular fact, though no issue is framed separately, in that event, the parties to such suit cannot complain of prejudice after such participation.

[16] Having held so, this Court finds no merit in the present second appeal and accordingly, the judgment and decree dated 2nd July, 2018 in Title Appeal No. 33 of 2016 passed by the learned First Appellate Court, stands set aside and quashed and thereby the judgment and decree dated 28th June, 2014, in Title Suit No. 13 of 2012 passed by the Court of Civil Judge (Jr. Division), Court No. 1, is hereby upheld and affirmed. Registry is directed to draw the decree accordingly.

[17] In the result, the present appeal stands disposed of. Pending application(s), if any, also stands disposed of.