Kus Gorain vs Khaku Gorain and Others

B.P. Jha, J.—The plaintiff-appellant preferred an appeal before this Court against the judgment and decreepassed by the Second Additional District Judge, Dumka.

The plaintiff-appellant brought a suit for a declaration of title and recovery of possession in respect of the suit lands on the ground that he is the adopted so of Buji Mandlain, the recorded tenant of the lands in suit.

The case of the plaintiff was that on3rd April, 1958, Buji Mandalain adopted the plaintiff as her son and she executed a registered deed of adoption (Ext. 1). Buji Mandalain died in Jeth 1962. After her death, the plaintiff succeeded to the suit properties as her legal heir. According to the plaintiffs case, the defendants first party are cultivating the lands as Sub-lessees. In 1369 B.S., the plaintiff asked the defendants first party to give up possession of the suit lands; but, in spite of the plaintiffs direction, the defendants did not give up possession. Hence, the present suit was filed.

The claim of the plaintiff was resisted by the defendants first party on two grounds, namely, (1) that the plaintiff was not the adopted son of Buji Mandalain, and (2) that the defendants have acquired title by adverse possession. The defence version is that Buji Mandalain leased out the suit lands in the year 1340 B. S. to defendant Nakul Gorain on payment of a fixed rent of 22 maunds of rice per year.

On these facts, the trial court decreed the suit and directed the defendants first party to pay 22 maunds of rice per year to the plaintiff. On appeal, the lower appellate court dismissed the suit. It is against the lower appellate court''s order that the plaintiff-appellant has preferred this appeal before this Court.

Both the courts have concurrently held that the plaintiff is the adopted son of Buji Mandalain. It is a concurrent finding of fact and, as such, I am unable to interfere with such a finding of fact in this appeal. I also hold that the plaintiff-appellant is the adopted son of Buji Mandalain for the simple reason that a registered deed of adoption (Ext. 1) was executed by her in favour of the plaintiff-appellant.

The only question for decision is : Whether the respondents first party (defendants first party) have acquired title by adverse possession or not?

The concurrent findings of both the courts are that the defendants first party were inducted as sub-lessees in respect of the suit lands. In this connection, a reference was made to a decision of the Supreme Court in Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, . In that decision, it has been held that during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord''s title by mere assertion of such a right to the knowledge of the, landlord. The case of the defendants-respondents is that since the sub-lease itself was illegal in view of Section 27 of Regulation III of 1872, a such the defendants first party were claiming the suit land by adverse possession. In view of the concurrent findings of fact, it is clear that the defendants first parry were cultivating the lands as sub-lessees. If it is so, the defendants first party were not claiming hostile title to the suit land. In view of the aforesaid decision of the Supreme Court, the tenants, namely, defendants first party cannot acquire by prescription a permanent right of occupancy.

The defendants first party are claiming title by adverse possession on the ground that the sub-lease itself was illegal in view of Section 27 of Regulation III of 1872. In this connection, learned Counsel for the appellant relied on a decision of the Supreme Court in Gaya Parshad Dikshit Vs. Dr. Nirmal Chander and Another, . In that decision, it has been held that in the case of a licensee, mere continuance of unauthorised possession even for a period of more than twelve years is not enough. In view of the fact that the sublease was illegal, hence the defendants first party could claim themselves to be licensees. In view of the decision of the Supreme Court, a licensee cannot claim title by adverse possession merely because he is in unauthorised possession for a period of more than twelve years. Apart from this fact, there must be some overt act on the part of the licensee indicating assertion of hostile title by adverse possession. The defendants first party have not claimed any hostile title. The defendants first party only claimed that after they were inducted as sub-lessees, they were in illegal possession for more than twelve years.

On the basis of the aforesaid decisions of the Supreme Court, I hold that neither a sub-lessee nor a licensee can claim title by adverse possession merely because that they are in continuous unauthorised possession for more than twelve years, unless and until they claim some overt acts on their part indicating assertion of hostile title. In any view of the matter, the defendants first party cannot claim title by adverse possession for the reasons indicated above. I am, therefore, of opinion that the plaintiff is the adopted son of Buji Mandalain and he is entitled to recovery of possession.

In this circumstance, a portion of the judgment and decree of the appellate court is set aside to the extent whereby the defendants first party''s claim by adverse possession was allowed. The appeal is, accordingly, allowed, but without costs.

S.S. Sandhawalia, C.J.

I agree.