Bijan Roy And Anr. vs Shila Kushari And Ors.

The appellants are the legal heirs of the original defendant No. 3 (late Smt. Rama Roy), who died during the pendency of this appeal and were allowed to substitute her by the order dated 22-4-2015 in C.M. application No. 116 of 2015. The respondents were the plaintiffs in the suit.

The plaintiff No. 1 is the respondent No. 1 while the plaintiff No. 2 is the respondent No. 2 in the appeal. The defendant No. 1 is the respondent No. 3, whereas the defendants No. 5 and 6 are the respondents No. 6 and 7 herein respectively. The respondents No. 1 and 2 had instituted Title Suit (Partition) No. 40 of 2009 in before the learned Civil Judge (Senior Division), West Tripura against the defendants No. 1, 2, 3, 4, 5 and 6 seeking partition of the suit land. The case of the plaintiffs is that the deceased mother-in-law of the plaintiff No. 1, namely, Parimal Devi, was the original owner of the suit land over which she constructed a dwelling house, which she possessed during her lifetime with her family members, namely, the parties in the suit. Her mother-in-law died on 5-1-1980 leaving behind her three sons and three daughters as her legal heirs. The plaintiffs and the respondent No. 6 are the legal heirs of the late Parimal Devi and the respondent No. 6 is the legal heirs and survivors of the late Saurindranath Kushari, who, in turn, was the son of the said Parimal Devi, while the appellant-defendant and the respondents No. 4 and 5 are the daughters of the said Parimal Devi.

After the death of the said Parimal Devi, her right, title and interest over the suit land devolved upon the surviving three sons and three daughters by way of inheritance. On 6-12-1989, the said Saurindranath Kushari, one of the sons of the late Parimal Devi, died leaving behind the plaintiffs and the respondent No. 6 as his legal heirs and survivors. His right to over 1/6th share of the suit land devolved upon the plaintiffs and the respondent No. 6; the parties to the suit are the joint owners and possessors of the suit land. The appellant-defendant, however, started construction of a building on the suit land without partition and without the consent of the plaintiffs, for which the plaintiff No. 2 time and again requested her for amicable partition of the suit land, but she refused to do so, which ultimately prompted the plaintiff No. 2 to institute the suit.

The stance taken by the appellant while contesting the suit is that since the purchase of the suit land by the late Parimal Devi in 1975, she has been possessing and enjoying the suit land by constructing a dwelling house thereon at her own expenses and also extended the dwelling house to the full knowledge of the said Parimal Devi. According to the appellant, the said Parimal Devi during her lifetime took some money from the appellant and when she could return the money, she expressed in the presence of all her sons and daughters her willingness that on her death she would relinquish their right and interest over the suit land in her favour (appellant) and that the appellant, in turn, would make certain money to the remaining parties to the suit as the price for their respective shares. It is further case of the appellant that after the death of the said Parimal Devi, all her legal heirs assembled together and decided to execute the last desire of the said Parimal Devi. Though the appellant and the legal heirs of the said Parimal Devi could not execute her last desire immediately after her death, they managed to settle all their disputes on 27-5-1993 by reducing their settlement into writing on a stamp paper by putting their signatures thereon.

It is the further case of the appellant that as per the settlement, she was to pay a sum of ₹1,75,000/- to the other legal heirs of the late Parimal Devi within 31-1-1994 and that she would get appropriate deed of transfer from them and that the appellant paid the entire agreed amount to other legal heirs of the said Parimal Devi by three instalments and that the other legal heirs of Parimal Devi thereafter could not assemble together to make appropriate instrument and that the appellant has been enjoying and possessing the suit land as the absolute owner thereof and that in the year 1995, the plaintiffs tried to evict the appellant from the suit land but they failed to do so and that the plaintiff alone put her signature on the said instrument in 1993 as the legal heirs of the late Saurindranath Kushari as her son and daughter were minors at that point of time. As the suit is without merit, contended the appellant, the same is liable to be dismissed.

The trial court framed the following issues:

Is the suit maintainable in law?

Is the suit barred by limitation?

Is the suit land partitionable among the plaintiffs and the defendants?

Has the defendant No. 3 acquired right, title, interest over the suit land by way of adverse possession?

Is the plaintiff entitled to get decree as prayed for?

To what other relief/reliefs the plaintiff is entitled?

The main findings of the trial court are that by virtue of Exbt. 5, the late Parimal Devi, the mother-in-law of the plaintiff No. 1 (respondent No. 1) purchased the suit land from one Smt. Chapala Bhattacharjee by means of registered sale deed dated 10-12-1975 and got the suit land mutated in her name; that when she died on 5-1-1980, she left behind her two sons, three daughters, the plaintiffs and the defendant No. 6 (respondent No. 7) as her legal heirs and that these individuals became the legal heirs of the late Sourindranath Kushari, the deceased son of the late Parimal Devi. The trial court accordingly held that the suit land is partitionable among the plaintiffs and the defendants. As for Issue No. 4, the trial court found that there was no evidence to substantiate the claim made by the appellant that she had purchased the suit land from the said Parimal Devi at any point of time. Inasmuch as the appellant could not prove her exclusive ownership of the suit land by purchase or otherwise, even if she is in possession of the suit land, she could at the most be permissive possessor; a permissive possessor can never claim adverse possession.

According to the appellant, she continues to be a permissive possessor until and unless she could show exactly as when her possession became adverse; among the co-heirs, the possession of one co-heir is considered in law as possession of all the other co-heirs. The trial court further held that the appellant did not institute a suit for specific performance of contract on the strength of Exbt. A purportedly executed by the respondents on 27-5-1993 in her favour and since no legal action was taken by her within three years from the date on which Exbt. A was purportedly executed by them. The trial court, therefore, negated plea taken by the appellant and decreed the suit declaring that the plaintiffs along with the respondent No. 6 are entitled to 1/6th share of the suit land and that the remaining respondents are entitled to 1/6th share of the suit land. The trial court further directed partition of the suit amongst themselves within three months.

A desperate attempt was, however, made by Mr. R.G. Chakravorty, the learned counsel for the appellant to assail the impugned judgment and decree and reiterated the submissions urged before the trial court. After carefully going through the impugned judgment, we are in complete agreement with the view taken by the trial court. We may reproduce below the observations of the Apex court in Janaki Padyani v. Ganeshwar and another, (2001) 10 SCC 434 to answer the contentions of the learned counsel for the appellant:

"2. After we heard learned counsel for the appellant and perused the record, we are of the view that the judgment of the High Court is not sustainable in law. The High Court found that Ext. B-1 was not signed by Madhusudan Panda and was not proved. Therefore, the High Court cannot make Ext. B-1 as the basis for acquisition of title by adverse possession. This approach of the High Court in holding that the defendants have acquired title to property by adverse possession was erroneous. Further, merely because the defendants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is a joint family property and the plaintiff and the defendants are the co-sharers of the property. In fact, there is no partition of the property and so long as the property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession."

For the reasons stated in the foregoing, there is no merit in this appeal, which is hereby dismissed. The parties are, however, directed to bear their respective costs. Transmit the L.C. record forthwith.