Dayamoy Deb vs Dharani Kumar Deb & Ors.

Heard Mr. R. A. Choudhury, learned counsel for the appellants. Also heard Mr. G. Kakati, learned counsel for the respondents.

This regular second appeal, under Section 100 of the C.P.C., is directed against the Judgment and Order, dated 31.10.2023, passed by the learned Additional District Judge, Hailakandi, (First Appellate Court herein after) in Title Appeal No. 01/2022.

It is to be noted here that vide impugned Judgment and decree, dated 31.10.2023, the learned Additional District Judge, Hailakandi has upheld the Judgment and Decree, dated 03.12.2018, passed by the learned Civil Judge, Hailakandi, (Trial Court herein after) in Title Suit No. 28/2016.

For the sake of convenience and to avoid confusion the parties, henceforth, will be referred to by their original status in the suit.

The background facts leading to filing of this appeal is adumbrated herein below:-

The defendants contested the suit by filing written statement, wherein they denied the averments leveled against them by the plaintiff. They stated that there is no cause of action for the suit; the suit is not maintainable etc.

The defendant No.1 had also averred in the written statement that their father, during his lifetime, at the instigation of the plaintiff sold some land of his ancestral property to purchase land at Hailakandi Town and handed over the money to the plaintiff to purchase land at Hailakandi Town. The plaintiff thereafter, on 06/02/02, after death of their father, had purchased the suit land and property from defendant No.3, in his name, and he left for Arunachal Pradesh, his place of work. Then he, defendant No.1, knowing the fact on 05/04/2002, entered into the suit property, by breaking the lock and started residing there with his mother and family.

The defendant No.1 also stated that he is running stationery shop there in a room obtaining trade license and also provided a room to defendant No.2, who is running a saloon there. The defendant No.1 averred that the plaintiff and his family never stayed in the suit property, and that the defendant No.2 is not a tenant of defendant No.1.

His further contention is that he has been enjoying and possessing the suit property since long and have acquired the right over the property by way of adverse possession. Therefore, he prayed for dismissal the suit of the plaintiff.

Upon pleadings of the parties, the learned Trial Court had framed following issues:-

Is there any cause of action for the suit?

Whether the plaintiff has got right, title, interest over the suit schedule land?

Whether the defendant dispossessed the plaintiff illegally from the suit schedule land?

Whether the plaintiff is entitled to the relief/decree as prayed for in the suit?

Thereafter, considering the evidence adduced by the plaintiff and defendants and the documents, so exhibited by them and after hearing arguments of both the parties the learned Trial Court had decided all the issues in affirmative and decreed the suit of the plaintiff, vide Judgment and Decree, dated 03.12.2018.

Being aggrieved by said judgment and decree, so passed by the learned Trial Court, the defendant had preferred an appeal being Title Appeal No. 01/2022, before the learned Additional District Judge, Hailakandi.

The learned Appellate Court had formulated following points for determination:-

(i). Whether the learned Trial Court failed to frame any issue on 'adverse possession' and thereby denied justice to the defendant/appellant?

(ii). Whether the learned Trial Court committed any error in admitting the sale deed (Ext.2) in favour of the plaintiff/respondent?

(iii). Whether there is anything to interfere with the judgment and decree, impugned herein, and if so to what extent?

Then, hearing argument of learned counsel for both the parties and considering the materials on record, vide Judgment and decree, dated 31.10.2023, the learned First Appellate Court had affirmed the Judgment and Decree, dated 03.12.2018, passed by the learned Trial Court.

Being aggrieved by the Judgment and decree, dated 31.10.2023, so passed by the learned First Appellate Court, the defendant has preferred the present appeal, which is admitted on following substantial question of law:-

Mr. Choudhury, learned counsel for the appellant/defendant submits that the plaintiff and the defendant No.1 are brothers. Referring to the plea taken by the defendant in his written statement, he submits that the plaintiff and defendant hail from village Sribani, under Ramkrishnanagar Police Station and Revenue Circle in the District of Karimganj, where the father of the plaintiff, defendant No. 1, and their other brother had his house and some agricultural land situated in a very backward place. He also submits that during his lifetime, Dhirendra Kumar Deb, the father of the plaintiff, defendant No. 1 and their other brother, sold some of his lands and gave the money to the plaintiff to purchase land in the joint names of the plaintiff, defendant No. 1 and their other brother in Hailakandi Town. But, subsequent to the death of their father, the plaintiff, with an ill and ugly intention, bought the suit land and the house in his own name from defendant No. 3, on 06/02/2002, and thereby, he deprived of his other brothers.

Mr. Choudhury also submits that subsequent to buying the suit land and house, the plaintiff went to his place of posting in Arunachal Pradesh, keeping the house under lock and key and as the plaintiff did not inform defendant No. 1 and his mother about buying the suit land and house, defendant No. 1 made enquiry and came to know about the purchase of the suit land and house in the name of the plaintiff. Defendant No. 1 told his mother about it and they were shocked to learn about it. Then, at around 1 p.m., on 05/04/2002, defendant No. 1, his mother Sailabala Deb, his wife and two years old daughter left their house at village Sribani and entered the suit house by breaking the lock. The defendant No. 1 had renovated the house and has been doing business of stationery items in a room in the south of the house and has also been running a salon through defendant No. 2, in a room situated in the west of the stationery shop. He also submits that the defendant No. 1 had duly received trade licence for stationery business from Hailakandi Municipal Board and has been paying Municipal Tax for the house for several years and has been paying the electricity bills for the suit house to the Electricity Department in the name of the owner, since after the purchase of the suit land and house. Subsequent to moving to the suit house, defendant No. 1 got his daughter Sumita Deb admitted into school in 2004, who at present has been pursuing her education at Junior Science College.

He also submits that the names of defendant No. 1, his wife and mother were recorded/entered in the voter list of Hailakandi Town in 2005. The mother of the plaintiff and defendant No. 1 sold a portion of the land left by her deceased husband at village Sribani, spent some of the money for her treatment, organized 'Astraprahar Kirtan' for her deceased husband in the suit house, with some of the said money and deposited the remaining amount of Rs. 35,000.00 (Thirty Five Thousand only) in Fixed Deposit scheme under Kishan Bikash Patra, at Hailakandi Post Office, on 17/03/2005.

Mr. Choudhury also submits that then having learnt that on 05/04/2002, defendant No. 1 had entered the suit land and house by breaking the lock against his interest, the plaintiff returned from the place of posting after 2/3 months and tried to drive away defendant No. 1 and others from the suit house by applying force but he failed to do so and left, as the local people stood by defendant No. 1. As per the sale deed, the land stands in the name of the plaintiff and his name was recorded in the Municipal Holding. Lilamoy Deb, the younger brother of the plaintiff and defendant No. 1, serves in Guwahati. He used to visit occasionally to meet his mother and defendant No. 1, and in the middle of 2013, he took their mother to Guwahati for treatment and after keeping her in Guwahati for two years, brought her to his rented house at Ramkrishnanagar, Silchar and thereafter she died on 17/09/2015. Having learnt about the death of his mother, defendant No. 1 immediately went there. When the mother was staying with the youngest brother, he got the amount of fixed deposit withdrawn by his mother and the amount was Rs. 70,000.00 (Rupees Seventy Thousand only).

Mr. Choudhury also submits that the plaintiff used to serve in Power Grid and used to stay in various states owing to his service. He also served at Panchgram Power Grid for certain period. The wife of the plaintiff also serves in Power Grid. The plaintiff and his wife never stayed in the suit house. Neither did their mother ever stay with the plaintiff and his wife, nor did they ever take care of their mother. The plaintiff bought land at Panchayat Road of Silchar, constructed a house there and has been residing there with his wife and son.

He also submits that it is false that by taking the advantage of taking care of his mother with the consent of the plaintiff, defendant No. 1 has been residing on the suit land and house with his family and that defendant No. 2 is not a tenant of defendant No. 1 and that defendant No. 1 is running the salon through defendant No. 2, and it is false that the plaintiff asked defendant No. 1 to vacate the suit land and house.

Mr. Choudhury further submits that the learned Trial Court as well as the learned first appellate court had not framed any issues on the plea of adverse possession, so taken by the appellant herein before the learned Trial Court and also it had not decided the same and as such, the impugned judgment and decree passed by the learned first appellate court, is illegal and arbitrary and on such count, the substantial question of law is involved herein and therefore, he has contended to allow the appeal be setting aside the impugned judgment and decree dated 31.10.2023.

Per-contra, Mr. Kakoti, learned counsel for the respondent submits that the impugned judgment and decree, so passed by the learned first appellate court and also by the learned trial court, suffer from no irregularity or illegality requiring any interference of this Court and that the substantial questions of law so formulated by this Court is not at all involved in this appeal.

Mr. Kakoti further pointed out that the suit property was purchased by the plaintiff/respondent with his own income and he allowed the defendant No. 1 to stay in the house situated on the suit property with his mother, while the plaintiff was at his work place at Rangia and Arunachal Pradesh and taking the chance of absence of the plaintiff, the defendant No. 1 fraudulently obtained trade license in the year 2011 – 2012 and knowing about the same, the plaintiff had raised an objection in issuing the trade license to the defendant No. 1, for which, the trade license was cancelled in the year 2013, and that the adverse possession cannot be claimed against the plaintiff, unless the defendant admits the ownership of the plaintiff.

Referring to the evidence, so recorded by the learned trial court, especially from the evidence of the DW-2, Mr. Kakoti submits that the said witness was examined by the appellant/defendant, had clearly stated that the defendant No. 1 entered into the suit property in the year 2015 – 2016, and since the title suit was instituted on 18.04.2016, the requirement of adverse possession could not be proved by the appellant/defendant and as such, he has contended to dismiss the appeal.

Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the memo of appeal as well as the grounds mentioned therein and the substantial questions of law, so formulated by this Court. Also gone through the impugned judgment and decree, dated 31.10.2023, passed by the learned first appellate court and the judgment and decree, dated 03.12.2018, passed by the learned trial court.

It appears that the learned Trial Court did not frame any issue on the point of adverse possession, though such a plea was taken by the defendant No. 1 in his written statement. But, it appears that while dealing with the issue Nos. (ii) and (iii), the learned Trial Court had discussed about the plea of adverse possession in details and thereafter, decided the issue Nos. (ii) and (iii) in affirmative in favour of the plaintiff, by holding that the plea of adverse possession creates doubt from the evidence of the witness examined by the defendant itself.

It is to be noted here that the issue No. (ii) relates to whether the plaintiff got the right, title and interest over the suit schedule land and whether the defendant dispossess the plaintiff illegally from the same and the learned Trial Court had discussed both the issues together. And considering the evidence of PW-1 and the documents exhibited by him and also considering the evidence of DW-1 and the documents exhibited by him, arrived at a finding that the plaintiff has right, title and interest over the suit schedule land and the defendant dispossesses the plaintiff illegally from the same.

It also appears that while dealing with the plea of adverse possession, the learned Trial Court had observed that the DW-1 deposed that he has been residing in the suit land since the year 2002 without any disturbance, without any interruption and claims title over the suit land by way of adverse possession. The defendants in their written statement, and DW-1 in his evidence deposed that the plaintiff purchased the suit land from the sale proceed received after selling their ancestral property. However, in his cross-examination, DW-1 deposed that their inherited property situated in village Sribani was not sold by the plaintiff, but by defendant No. 1 and his mother. As such, the contention of DW-1 that the plaintiff purchased the suit land from the sale proceed of their ancestral property is not justifiable, the plaintiff being not a party to the sale. The learned Trial Court also held that DW-1 deposed that he left his village Sribani in the year 2002, and since then he has been residing in the suit land. On such count, he has acquired title over the suit land by way of adverse possession.

The learned Trial Court had also observed that adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met and the adverse possessor is in possession for a sufficient period of time, as defined by a statue of limitation. The expression adverse possession means a hostile possession, i.e. the possession which is in denial of the title of the true owner. It must be adequate in continuity, in publicity and in extent to show that it was possession adverse to the real owner. PW-1 deposed that he allowed the defendant No. 1 to reside in the suit land and house to look after his ailing mother as PW-1 was posted at Rangia. PW-2 & 3 corroborated this evidence of PW-1. The PWs deposed that the defendant No.1 started running a stationary shop in the suit land and obtained a trade license and when PW-1 came to know about it he gave an objection before the Chairperson, Municipal Board, Hailakandi and accordingly, the trade license of the defendant No.1 was revoked, vide order dated 04.09.2013, which was exhibited as Ext.4.

Further, the learned Trial Court has observed that the period of limitation, to claim title by adverse possession, is twelve years and during that period the possession of the adverse possessor has to be continuous and uninterrupted. In the present suit, in view of Ext.4, it is seen that the trade license of the defendant No.1 was revoked as the plaintiff did not grant the NOC to the defendant No.1 to carry on business in the suit land. Ext.4 also mentioned the plaintiff as the original owner and the same was brought to the notice of the Chairperson by the plaintiff, vide his petition dated 06.04.2013.

The learned Trial Court had also observed the defendant No.1 claims that he entered the suit land in the year 2002, and has been continuously residing there without interruption. However, in view of Ext.4, it cannot be said that his possession for twelve years or more remain uninterrupted as the objection petition was filed by the plaintiff before the municipal board in the year 2013. DW-1 deposed that the suit land is in the name of the plaintiff and all other documents regarding taxes, electricity bills etc. are also in the name of the plaintiff.

The learned Trial Court then went on to observe that DW-2, in his cross-examination, deposed that the defendant No.1 entered the suit house in the year 2015-16. Thus, the claim of the DW-1 that he had entered the suit land in the year 2015-16 is contradicted by DW-2 which again creates doubt regarding the defendant No.1's claim of adverse possession.

The learned First Appellate court had also discussed the evidence on record recorded the following findings:-

Thereafter, the learned First Appellate Court had found the preponderance of probability in favour of the plaintiff and decided the point No.1 in his favour. Thereafter, it had decided point No.2 in negative. Thereafter, it had held that the learned Trial Court had elaborately discussed the entire evidence in her judgment and concluded her findings allowing relief to the plaintiff/respondent and it had not found anything to interfere with the findings of the learned Trial Court and thereby upheld the same.

This Court has carefully considered the concurrent finding of facts by both the learned courts below. It appears that concurrent finding of facts, so recorded by both the learned Courts below, in respect of the adverse possession, is based upon proper appreciation of the evidence both oral and documentary and the legal principle, presently holding the field.

It is however a fact that the learned Trial Court had not framed any issue on the plea of adverse possession, through such a plea was taken by the defendant. Mr. Choudhury, learned counsel for the appellant has rightly pointed it out. But, it appears that despite non framing of an issue on the plea of adverse possession, the learned Trial Court had directed a detailed discussion in respect of the same and recorded a clear finding, while discussing the Issue No. 2 and 3 that the plea of adverse possession is not proved.

Further it appears that the learned First Appellate Court had also formulated a point for determination i.e. point No.1, and after directing a detail discussion, arrived at a reasoned finding to that effect. Therefore, non framing of an issue by the learned Trial Court would have no consequence.

It is to be noted here that the requirements of adverse possession is governed by Article 65 of the Limitation Act, 1963. This Article requires continuous, open, and hostile possession for 12 years. The core classical requirements of adverse possession is well settled in a decision of Hon’ble Supreme Court in the case of Karnataka Board of Wakf v. Government of India, reported in (2004) 10 SCC 779, and these are nec vi, nec clam, nec precario; exclusive possession + animus possidendi; claimant must prove date, nature, knowledge, duration, and open/undisturbed character. In brief these are:-

In the case of T. Anjanappa v. Somalingappa, reported in (2006) 7 SCC 570, Hon’ble Supreme Court has held that mere long possession is insufficient. It must be actual, exclusive, hostile, and continuous. Permissive possession (e.g., as tenant, licensee, agent, or co-owner) does not become adverse without a clear act of hostility/ouster and knowledge by the true owner. Claims of title and adverse possession are generally mutually inconsistent.

In the instant case, the plaintiff has failed to establish the aforesaid requirements of adverse possession. His own witness, i.e. D.W.2, had admitted that the defendant No.1 entered the suit house in the year 2015-16, which clearly negates the claim of adverse possession so made by the DW-1, that he entered the suit land in the year 05.04.2002. If in fact the defendant No.1 entered the suit house in the year 2015-16, and the suit having been filed in the year 2016, one of the core requirements of hostile possession for 12 years, cannot be said to be fulfilled.

Further, the learned counsel for the appellant/defendant had failed to demonstrate before this Court any perversity in respect of the findings, so recorded by the learned Courts below, requiring this Court to re-appreciate the evidence again. It is well settled that unless perversity in respect of the finding is demonstrated, this Court, sitting in second appeal, is not entitled to re-appreciate the facts, when there is a concurrent finding of facts by both the Courts below. Reference in this context can be made to following decisions of Hon’ble Supreme Court:-

Under the given factual and legal backdrop, this Court is of the considered opinion that no substantial question of law, as formulated herein this appeal, flows out of the impugned judgment and decree passed by the learned First Appellate Court.

In the result, this Court finds no merit in this appeal and accordingly, the same stands dismissed, leaving the parties to bear their own costs.

Registry shall return the record forthwith along with a copy of this judgment to the learned courts below.