Madhabi Das And Ors vs Harendra Chandra Das

Heard Mr. B.K. Nath, learned counsel appearing for the appellants as well as Mr. Alik Das, learned counsel appearing for the sole respondent.

The instant second appeal has been preferred before this Court by the appellant-defendants challenging the legality and propriety of the judgment and decree dated 19.11.2018 passed by the learned District Judge, North Tripura, Dharmanagar in Title Appeal No.19 of 2017.

All the appellants herein were the defendants Nos.1, 2 & 3, hereinafter they would be referred to as defendants and the respondent being the plaintiff in Title Appeal No.10 of 2016 would hereinafter be referred to as plaintiff. The plaintiff has instituted a suit for declaration of right, title and interest and also for recovery of possession of the suit land. In the suit, the plaintiff had prayed for the following reliefs:-

"i) A decree of declaration of right, title and interest over the suit land more specifically described in Schedule A & B.

ii) A decree for recovery of possession of the suit land by removing obstruction if any at the cost of the Defendants, herein Appellants.

iii) A decree for that the Plaintiff is entitled to recover the mesne profits.

iv) A decree for the cost of the suit.

v) A decree for any other relief/relieves the Plaintiffs are entitled to as per law."

After exchange of pleadings, learned Trial Court has framed the following issues:-

"(i) Whether the suit is maintainable?

(ii) Whether the suit is barred by law of limitation?

(iii) Whether suit is bad for non joinder of necessary parties.

(iv) Whether the Plaintiff has got right, title and interest on the A Schedule Suit land?

(v) Whether the B Schedule land of plaint is the part & parcel of A Schedule land?

(vi) Whether predecessor in interest of defendants deceased Sushil Chandara Das had been possessing the suit land adversely, continuously beyond the statutory period and acquired right, title and interest on the suit land?

(vii) Whether there is cause of action on the suit?

(viii) Whether the Plaintiff is entitled to get the decree of declaration his right, title and interest on the Suit land and recovery of Khash possession of suit land?

(ix) Whether the Plaintiff is entitled to get recovery of mesne profit @ Rs.200/- per day w.e.f. 28/03/2016 till realization from Defendants?"

In course of trial, the learned trial Court recorded the evidence and both the parties introduced the material documents which were exhibited accordingly. After completion of recording of evidence and hearing the arguments of the parties, the learned Trial Court vide judgment and decree dated 24/05/2017 had dismissed the suit.

The operative portion of the judgment reads as follows:-

"...............the Plaintiff has not succeeded to establish the cause of action for the suit and the suit is not allowed for being non-maintainable. Plaintiff is not entitled to get the decree of declaration of his right, title and interest on the A & B Schedule suit land along with decree of recovery of khas possession of these suit lands............... the suit is dismissed with cost".

The plaintiff being aggrieved by the said judgment dated 24/05/2017 had preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 before the learned District Judge, North Tripura, Dharmanagar. The said appeal was registered as Title Appeal No.19 of 2017. During the pendency of the appeal, additional evidence of P.W.-4 was recorded and a certified copy of the sale-deed bearing No.1-4731, dated 08/05/1974 was exhibited as Exbt.-4.

The learned District Judge, after hearing the parties passed his judgment dated 19/11/2018, partly allowing the appeal. The learned District Judge had decreed the suit by way of confirming the right, title and interest of the plaintiff over the land of Schedule-A and further declared that the plaintiff was entitled to recover the said land of Schedule-A by ousting the defendants. By the said judgment and decree dated 19/11/2018, the learned District Judge, however, had rejected the prayer of the plaintiff in regard to the declaration of plaintiff„s right, title and interest over the land of Schedule-B, though, the plaintiff had his possessory right thereon, inasmuch as his suit was not covered by Article-64 but covered by Article 65 of the Limitation Act.

The operative portion of the judgment may be reproduced hereinbelow for convenience:-

" ............the appeal of the Appellant-Plaintiff is party allowed. The judgment and decree passed by the Ld. Court below in suit bearing No-Title Suit 10 of 2016 is hereby set aside. The rights, title and interest of the Appellant-Plaintiff over the suit land of „A‟ Schedule is hereby declared and he shall recover the same ousting the Respondents-Defendants there from. The Respondents-Defendants shall hand over the possession of the suit land of „A‟ Schedule to the Appellant-Plaintiff. In the peculiarity of the facts and circumstances of the suit the Appellant-Plaintiff is not entitled to mesne profit as claimed and also the cost of the appeal."

Being aggrieved by and dissatisfied with the said judgment and decree dated 19/11/2018 passed in Title Appeal No.19 of 2017 by the learned District Judge, the appellants have preferred the present second appeal before this Court.

I have perused the judgment of the learned Trial Court as well as learned First Appellate Court. The learned District Judge has observed that the case of the plaintiff was that the defendants were the permissive possessor over the suit land since the first week of January, 2008.

On the other hand, the stand of the defendants was that the original owner of the suit land was Surendra Chandra Das and Surubala Das (wife of deceased Narendra Chandra Das). Narendra Chandra Das and Surabala Das died issueless. Surendra Chandra Das was the brother of Narendra Chandra Das and he died leaving behind his three sons namely Harendra Chandra Das(Plaintiff), Sushil Chandra Das(deceased) and Samarendara Das. Defendants are the legal heirs of the deceased-Sushil Chandra Das.

It is the claim of the defendants that said Sushil Chandra Das was possessing the suit land adversely since the death of Narendra Chandra Das. After the death of Sushil Chandra Das, the defendants, since 30th Aswin 1996 have been possessing the suit land continuously without interference from anybody adversely to the right, title and interest of the appellant. The defendant No.1 in her cross-examination as D.W-1 has categorically stated that they did not have any documentary evidence in support of their adverse possession over the suit land.

After thoughtful consideration to the findings of the learned Trial Court as well as the First Appellate Court, in my opinion, the learned First Appellate Court has correctly decided the issue that the learned Trial Court has committed error in regard to his finding on „cause of action‟ of the suit. The claim of the plaintiff is that he permitted the defendants to possess the suit land in the month of January, 2008 temporarily and when he asked the defendants in the year 2012 and finally, in the year 2016 to vacate the suit land, the defendants refused to vacate the same, prompting the plaintiff to institute the present suit.

On the other hand, defendants have categorically stated that they have been possessing the suit land since 1998 adversely to the plaintiff and their possession was not permissive. The plaintiff by adducing evidence has been able to prove his assertion that the „cause of action" arose on 28/03/2016. In my considered view, the learned Trial Court below by way of wrong conception of the meaning of „cause of action‟ arrived at a wrong decision that there was no „cause of action‟ for the suit. Learned First Appellate Court on the basis of the pleadings and evidence on record held that there was definite „cause of action‟ to institute the suit and discarded the findings of the Trial Court that there was no „cause of action‟ to institute the instant suit. I find no error in the finding of the learned First Appellate Court reversing the findings of the Trial Court on this issue. Having held so, I do not find any reason to formulate substantial question of law on the issue as to whether there existed any „cause of action‟ for institution of the present suit.

I have carefully read over the statement in regard to the plea of the defendants that their possession is adverse to the plaintiff. To justify their plea of adverse possession, the defendants at para-18 and 19 of their written statements have stated thus:-

"18. That, the answering defendants had been enjoying the property and after the death of Narendra Chandra Das w.e.f. 30th Ashin 1996 continuously without interference from any body adversely to the right, title & interest of the plaintiff. On 12-08-1998 after the death of Sushil Chandra Das the answering defendants has been possessing the suit land without any interference from the plaintiff and others denying their title and interest and thus acquired right, title and interest by way of adverse possession. The plaintiff did never visit the suit land even for a single instance since 40 years and thus they are ousted by the answering defendants and till the date the suit land has been under the continuous possession of the answering defendants and as such the suit is liable to be dismissed.

That, the answering defendants have been possessing continuously since time barred period the homestead land and cultivating the suit land which is paddy land and enjoying the other landed property and from the income and produce they have been maintaining their family hand and mouth, the plaintiff is established and have been living permanently outside of Dharmanagar. The plaintiff got retirement from service."

From the pleadings and evidence on record it has come to light that the plaintiff and the defendants are the near relatives. The plaintiff and the father of the defendants are the fullblooded brothers. It has further come to light that the case of the defendants is that the plaintiff is an educated person and for purpose of his service, he used to reside outside the state of Tripura. During the last 40 years, the plaintiff never visited the suit land. Due to such absence, the plaintiff has been ousted by the defendants since the defendants are in continuous possession of the suit land. Further, it is stated that due to such continuous possession for such a long period of time, the defendants have acquired title over the suit land by way of adverse possession.

On a plain reading of para-18 & 19 of the written statement and after taking into consideration the evidence laid by the defendants, I find the absence of one of the most essential ingredients to establish acquisition of title by way of adverse possession is that to prove adverse possession, the defendants have to prove the hostility against the plaintiff and further that hostility must be to the knowledge of the true owner i.e., the plaintiff herein.

In the instant case, the defendants have simply asserted that the plaintiff due to his service outside the State of Tripura for the last 40 years has lost his title over the suit land. It is now well settled that mere possession, however long it is, would not confer title upon the defendants unless it is proved that the said possession was within the knowledge of the true owner, defying the title of the true owner and such possession was hostile to the true owner.

In the case in hand, this Court finds that the plaintiff and the defendants being the co-sharers are the joint owners of the suit land of Schedule-A & B. More so, it is proved that the plaintiff and the defendants are the near relatives and belonged to the same family. Further, the defendants who claim acquisition of title by way of adverse possession must establish by their acts and commission, when their possession became hostile to the plaintiff and such act of hostility was apparently visible to the plaintiff and further the plaintiff was in know thereof about such hostile act of the defendants. Furthermore, most important feature in the present case is that the plaintiff and the defendants are co-owners being the plaintiff and the father of the defendants are full-blooded brothers. In my considered view, possession of co-owner cannot be adverse. Possession of a property belonging to several co-shares by one co-sharer or by some of the co-sharers shall be deemed that he/they possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers. Even, in the case of this nature, mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied.

I re-iterate, the plea of defendants in the case in hand, is that they have been possessing the land of the plaintiff due to the fact that the plaintiff did never visit to the suit even for single instance since 40 years and is a permanent resident of a place outside Dharmangar and he has come to the suit land after his retirement from the Government service.

This similar situation was well dealt with in the case of Annasaheb Bapusaheb Patil & ors. vs. Balwant alias Balasaheb Babusaheb Patil reported in (1995)2 SCC 543, where a three Judges Bench of the Apex Court held as under [SCC. Page-554, para-16]:-

" In the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenery property. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other member he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and re-grant was made by the Collector under sub-section(1) of Section-5. The defendant, therefore, must plead and prove that after the re-grant, he asserted his own exclusive right, title and interest to the plaint schedule property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile tide during the entire statutory period of 12 years without any let and hindrance and the plaintiff stood thereby".

Following the ratio laid down by the Apex Court, in my opinion, being co-sharers this assertion will not be enough to establish the plea of acquisition of title by way of adverse possession. The defendants have to clearly assert when their hostility relating to property in question had commenced denying the title of the plaintiff and that too, such ouster was within the knowledge of the plaintiff and in that event, the plaintiff had not taken recourse of law within the period of limitation of 12 years from the time when the plaintiff became aware of such ouster of his title by visible acts and conducts of the defendants.

There may be yet another situation. In the instant case, the defendants even have failed to assert that at any point of time, the plaintiff had raised objection to the possession of the defendants relating to the suit property, and defendants despite such objection had been continuing possession denying the title of the plaintiff.

Mere possession however long does not necessarily mean that it is adverse to the owner creating any proprietary right over the suit land.

The way the defendants have projected their case to establish their claim of acquisition of title by way of adverse possession does not fulfill the basic elements of adverse possession which is apparent from the case of the defendants as stated above. Mere assertion of acquisition of title by way of adverse possession itself will not be sufficient unless the defendant roves animus possidendi. (emphasis supplied)

Based on the findings of both the Courts below, I have carefully considered the substantial questions of law as proposed to be formulated in the present second appeal.

In the present case, the plaintiff has sought for recovery of possession of the property in question based on his title. He has been able to establish his title. It is pertinent to emphasize herein that both Articles 64 and 65 are Rules of Limitation, the only difference being that in the former the onus lies on the plaintiff to prove his posessesion within 12 years while in the later it is for the defendants to prove when his possession became adverse.

A suit for declaration of title and recovery of possession is governed by Article 65 of new Act which is different from Article 142 of the Old Act inasmuch that under Article 142, the plaintiffs had to prove title and also possession within 12 years from the institution of the suit. Under Article 65, if the plaintiffs bring a suit for possession over immovable property or any interest threin on the basis of title, the plantiffs are required to prove only the title and not the subsisting title. It is further clarified that when the character of the suit is one of declaration of recovery of possession based on title, Article 65 of Limitation Act is applicable. (emphasis supplied)

The defendants cannot deny the title of the plaintiff since they have admitted the title of the plaintiff when the defendants have claimed that they have acquired title over the suit land of Schedule-A by way of adverse possession, since the suit of the plaintiff is covered by Article-65 of the Limitation Act, as held by the learned District Judge.

The defendants have raised an issue whether the suit is barred by misjoinder and nonjoinder of the necessary parties. After perusal of the evidence, I find that the defendants have miserably failed to establish how the suit is barred by nonjoinder of necessary parties, and for argument sake, even if there are some other interested parties, the defendants have failed to establish as to how they have been prejudiced for nonjoinder of those parties. The defendants had enough opportunity to bring those parties in course of trial even if such parties were not impleaded by the plaintiff in the suit.

After careful consideration of the proposed substantial questions of law, I find no elements in the instant second appeal to formulate any substantial question of law and issue notice upon the plaintiff-respondent.

Hence, I do not find any merit to admit this appeal and accordingly, the instant second appeal preferred by the appellant-defendants stands dismissed.