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Judgment
Sukumar Chakravarty, J.—This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Barasat, in Title Appeal No. 1092 of 1978, setting aside the judgment and decree passed by the learned Munsif, 2nd Court, Barasat, in Title Suit No. 445. of 1974 and dismissing the suit. The plaintiff filed the suit for declaration of their title to the suit premises and for injunction.
It was the case of the plaintiffs in brief that the suit premises consisting of 11 rooms belonged to some Muslim who deserted the suit property in 1950 following the communal disturbance. The plaintiffs coming over to India as refugees from the erstwhile East Pakistan, occupied the suit property for viably in 1960 finding the same vacant. In 1954 the plaintiffs permitted one Sachindra Rakshit to occupy three rooms in the eastern portion of the suit premises. The heirs of Sachindra Rakshit were still in occupation of the said rooms. In 1951 the owner Mahaboob filed the case no. 1066 of 1951 before the Competent Authority against the plaintiffs under the Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorised Occupation of Land Act, 1951 but became unsuccessful. The plaintiffs were possessing the suit property, openly, uninterruptedly and adversely to the interest of the rightful owner since 1950. Mahaboob being unsuccessful in that eviction. case, sold the.suit property to Lachiram Kurmi in 1959. Lachiram tried to forcibly disposes the plaintiffs from the suit property but failed. Lachiram then sold the suit property to Monoharlal Agarwalla in 1962. Monoharlal also tried to forcibly disposes the. plaintiffs from the suit property but failed. Monoharlal filed Title Suit No. 439 of 1969 against the plaintiffs for their eviction from the portion of the suit property which was in actual possession of the plaintiffs on the allegation that the plaintiffs were inducted as tenants by him in 1964 and that the tenancy of the plaintiffs was terminated by the service of notice to quit on the ground of default in payment of rent. The plaintiffs contested the said suit denying the relationship of landlord and tenant and asserting their title to the suit property by adverse possession since 1950. The said suit was dismissed and the dismissal was upheld by the appellate court. In appeal Ghasilal and others as the heirs of Monoharlal were appellants. The defendant purchased the suit property from Ghasilal and others on 4-8-74 and forcibly got a blank paper signed by three of the plaintiffs oh 11.8.74. The plaintiffs apprehended that the defendant might create any document by that signed blank paper. The plaintiffs lodged diary with the Police Station on 11.6.74 regarding the incident and subsequently filed also a criminal case u/s 107 Cr. P. C. against the defendant. The defendant the atoned the plaintiffs to dispossess from. the suit land. Hence this suit was instilled.
The defendant filed the written statement and contested the suit. The defendant denied that the plaintiffs acquired any title to the suit property by adverse possession. It was, contended, inter alia, that the suit property originally belonged to Mahaboob who sold to Lachiram who again sold the same to Monoharlal and the defendant purchased the entire suit property from Ghasilal and others, the heirs of Monoharlal on 4.8.74. The plaintiffs were tenants in some portions of the suit property like Sachindra Rakshit who was never a licensee under the plaintiffs. The plaintiffs left the suit property in 1960 and again came to the suit property as tenants in 1964. The plaintiffs denied to be the tenants under the defendant after his purchase of the suit property. A salish was called on 11.8.74 and in that Sailesh, the plaintiffs executed a swikarpatra'' admitting the defendant''s title to the suit property and their tenancy right under the defendant. It was denied that the defendant got any blank paper forcibly signed by the plaintiffs on 11.8.74.. It was rather contended that the plaintiffs voluntarily executed, the ''swikarpatra
The learned Munsif, in consideration of the evidence and other relevant facts and circumstances, found that the plaintiffs had acquired title to the suit property by adverse possession and found also that the defendant managed to create a false ''swikarpatra with the help of a blank paper after forcibly taking the signatures of the plaintiffs thereon and accordingly decreed the suit. On appeal, the learned Additional District Judge held otherwise and dismissed the suit after reversing the judgment and decree passed by the learned Munsif.
The plaintiffs being aggrieved by the judgment and decree passed by the learned Additional District, Judge, have preferred this second appeal on the ground that the learned Additional District Judge has committed mistake in law by dismissing the suit on reversing the judgment and decree passed by the learned Munsif.
Mr. Shyama Prasanna Roychowdhury appearing on behalf of the plaintiffs appellants has submitted that the finding of the learned Additional District Judge to the effect, that the plaintiffs have not acquired title to the suit property by adverse possession for more" than 12 years is against the voluminous evidence of adverse possession and against the legal concept of adverse possession and accordingly such finding is perverse to warrant the interference by this second appellate court. It has been further submitted by him that the finding of the learned Additional District Judge with regard to the so-called ''swikarpatra (ext. G) to the effect that it was voluntarily executed by the plaintiffs, has been given without considering the legal evidence and facts and circumstances connecting the said document and accordingly such finding also has been perverse to warrant the interference by this Court. In support of his such submission, Mr. Roychowdhury has relied on the decisions in AIR 1935 36 (Privy Council) and AIR 1935 53 (Privy Council) with regard to the legal concept and meaning of adverse possession and the decisions in Oriental Investment Co. Ltd. Vs. Commissioner of Income Tax, Bombay, and R. Ramachandran Ayyar Vs. Ramalingam Chettiar, with regard to the perversity in the findings of the court.
Mr. Saktinath Mukherjee appearing for the defendant respondent has submitted that the learned Additional District Judge has not committed any mistake in law in arriving at the findings that the plaintiff did not acquire title to the suit property by adverse possession, as there is no evidence to show that the plaintiffs had been possessing the suit property adversely to the interest of the rightful owner for more than 12 years with an animus to set up a claim of right to the suit property although there might be evidence of the plaintiffs'' possession in the suit property as trespassers. It has also been submitted by Mr. Mukherjee that the learned Additional District Judge arrived at the finding that the plaintiffs voluntarily executed the ''swikarpatra'' (Ext. G) on appreciation of the evidence and that accordingly this appellate court cannot interfere with such finding of fact in the second appeal. In support of his submission with regard to the legal concept and meaning of adverse possession, Mr. Mukherjee has relied on the decisions in AIR 1935 SC 53, Premendu Bhusan Mondal Vs. Sripati Ranjan Chakravarty, and Nirmal Chand Vs. Gaya Prasad Dikshit and Another, .
It is an undisputed fact that the suit property consists of 11 rooms. Both the courts below found that out of these 11 rooms 8 rooms are in actual possession of the plaintiffs and three rooms are in actual possession of the heirs of Sachindra Rakshit who was previously in possession of the aforesaid three rooms. The learned Munsif found that the plaintiffs at first possessed the entire suit property in 1950 as trespassers finding the same deserted due to communal disturbance and that thereafter Sachindra Rakshit possessed the said there rooms as licensee of the plaintiffs and on his death his heirs possessed the Said three rooms as licensees and accordingly found the plaintiffs'' possession as trespassers in the entire suit property since 1950 without any discontinuity in possession during the period from 1960-64 as contended by the defendant. The learned Additional District Judge concurred with the aforesaid findings of the learned Munsif so far as the eight rooms which are in actual possession of the plaintiffs are concerned. As regards the three rooms in actual possession of the heirs of Sachihdra Rakshit, the learned Additional District Judge placing reliance on, the evidence, especially exhibit B1, the certified copy of the ex-parte ejectment decree obtained by Monoharlal, against the heirs of Sachindra Rakshit in respect of these three rooms found that the plaintiffs had no possession in the said three rooms as trespassers'' since 1950.
Now the point is whether the plaintiffs acquired title to the said eight rooms by adverse possession for more than 12 years. The learned Munsif held so whereas the learned Additional District Judge held otherwise.
What constitutes adverse possession, what are the elements of adverse possession and whether trespass may constitute adverse possession, all these have been lucidly discussed in the book ''Law on Adverse Possession by M. Krishnaswamy, 5th Edition. Some relevant portions in this respect from the aforesaid book are quoted here :A mere possession without a claim of right, for however long a "time is not sufficient to create adverse possession. There can be no adverse possession, if the person claiming does not know that he is occupying somebody else''s land, he must have the intention of using the property adversely against another having an interest in it. It is not mere possession that determines the right, but it is the character of the possession that controls. For the purposes of adverse possession, there must De possession continued and not interrupted, peaceable, open, unequivocal, grounded on the alleged title of ownership. Possession to the adverse must be nec in nec clam and nec precarious, The attitude of the person claiming to be in adverse possession, must be looked into. There can be no adverse possession without an animus to prescribe. Adverse possession means possession which is hostile under a claim or colour of title; it is actual, open uninterrupted, notorious, exclusive and continuous. But trespass is to be distinguished from adverse possession. Trespass may constitute adverse possession, if it is of a permanent character and is made under assertion of a right to possess, and has all the elements of adverse possession."
It has been held in the case of AIR 1935 36 (Privy Council) as follows
"The possession required must be adequate to continuity, publicity and to extent to show that it is possession adverse to the competitor. The classical requirement is that the possession should be nec vi nec clam nec precario".
It has been held in the case of AIR 1935 53 (Privy Council) as follows :
The principle of law is firmly establish that a person, who bas(sic) his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
The above-mentioned principles of law with regard to the adverse possession have also been followed in the cases reported in Premendu Bhusan Mondal Vs. Sripati Ranjan Chakravarty, and Nirmal Chand Vs. Gaya Prasad Dikshit and Another, .
In the case of Premendu Bhusan Mondal Vs. Sripati Ranjan Chakravarty, , we find that just like in the present case, the "disputed premises belonged to some Muslim who due to communal disturbance in 1950, left the house and took shelter else where and the defendant in that case being a refugee from the erstwhile East Pakistan occupied the house finding it vacant and continued to live therein. The plaintiffs on purchase of the disputed house from the Muslim in 1954, requested the defendant to vacate the disputed house but the defendant though he assured the plaintiffs that he would vacate the same did not ultimately do so. The defendant claimed title to the disputed house by adverse possession for more than 12 years. Their Lordships in the said case however did not find in the facts as mentioned above that the defendant had any animus to set up a claim of any right in the disputed house. and accordingly did not accept the defendant''s plea of adverse possession although the defendant had taken electric connection and paid tax relating to the disputed house.
In the instant case, the plaintiffs coming from erstwhile East Pakistan as refugees, possessed the eight rooms in 1950 after finding the same vacant as the Muslim owner left for the (sic)ast Pakistan due to communal disturbance. The Muslim owner filed the case before the Competent Authority, in 1951 for eviction of the plaintiffs in unauthorised occupation but failed on the plaintiffs contest. The evidence shows that the Muslim owners then, tried to forcibly; dispossess the plaintiffs and being unsuccessful sold the suit property to Lachiram in 1959. The evidence shows that Lachiram tried to forcibly dispossess the plaintiffs but failed and that he sold the suit property to Monoharlal in 1962. The evidence further shows that Monoharlal also tried to forcibly dispossess the plaintiffs but failed. Monoharlal then filed Title Suit No. 439 of 1969 against the plaintiffs for their eviction on a claim that the plaintiffs were his tenants in respect of the eight rooms in their possession and defaulted in payment of rent. The plaintiffs contested the said suit denying the relationship of landlord and tenant and asserting their hostile title to the said room by adverse possession since 1950. Monoharlal lost the suit and also the appeal. Exhibits 8 and 8(a) with exhibit 7(a) the certified copies of the judgment of the trial court and the appellate court show the same. Both the courts below found that the plaintiffs were continuously possessing the rooms as trespassers since 1950. It is true that both the courts in exhibit 8 and 8(a) have not made the expression that the plaintiffs were in adverse possession since 1950 but instead they have expressed that the plaintiffs were trespassers since 1950.
Placing reliance on the documentary evidence, that is, the order of judgment of the earlier case and the.suit and the appeal, the oral evidence in the present suit, the learned Munsif found that the plaintiffs had acquired title by adverse possession since 1950 even before the defendant purchased the suit property from the heirs of Monoharlal on 6.8.74. The learned Munsif found also that the swikarpatra'' (ext. G) was created by the defendant by forcibly obtaining the signatures of three of the plaintiffs on a blank paper,. The learned Additional District Judge has, however, held ''that the plaintiffs had not given any evidence claiming hostile title and that the ''swikarpatra'' (Ext G) executed on 11.8.74 by the plaintiffs admitting the defendant''s title in the suit property does not prove that the plaintiffs acquired title to the suit property by adverse possession.
It is true that the plaintiffs in their evidence through P. W. 1 have not specifically stated in evidence in chief that plaintiffs had been possessing the suit property adversely to the interest of the ''real owner but in cross-examination P. W. 1 has denied the suggestion that the plaintiffs had not acquired title by adverse possession, meaning thereby that the plaintiffs had acquired title by adverse possession. Further, the evidence of P. W. 1 to the effect that all efforts of the owners from Mahaboob Ali to Monoharlal to forcibly dispossess the plaintiffs from the suit property failed, shows that the plaintiffs possessed eight rooms at least adversely to the interest of the owners. The plaintiffs'' possession as trespassers since 1950 as established in Title Suit No. 439 of 1969 with their hostile claim of title by adverse possession in the written statement and with their successful attempts to resist the owners one after another from taking forcible possession, was of permanent character and made under assertion of a right to possess and had all elements of adverse possession. So the evidence and facts and circumstances have proved that the plaintiffs by their adverse possession since 1950 acquired title to the eight rooms in their possession long before the defendant purchased the suit property on 6.8.1974.
In such an eventuality the title to eight rooms having been established in favour of the plaintiffs by adverse possession, cannot be transferred in favour of the defendant by. the so-called admission of title of the defendant by the plaintiffs in the alleged ''swikarpatra'' (Ext. G) even if it be assumed for the sake of argument that the ''swikarpatra'' (Ext. G) was not a false manufactured document but a genuine document voluntarily executed by the plaintiffs, as admission cannot create any titled.
As regards the ''swikarpatra'' (Ext. G), Mr. Roychowdhury has submitted that the finding of the learned Additional District Judge is perverse over the same as he has not considered the relevant evidence and facts. I am conscious of the settled principle of law that a Judge of the High Court has no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. It is therefore clear that the finding of fact of the first appellate court which is not based upon an appreciation of the relevant evidence can be interfered with in the second appeal. It has been held in the decision in the case of Oriental Investment Co. Ltd. Vs. Commissioner of Income Tax, Bombay, that a finding on a question of fact is open to attack as erroneous in law if there is no evidence to support it or if it is perverse The same principle has been laid down in the decision in the, case of R. Ramachandran Ayyar Vs. Ramalingam Chettiar, .
Keeping in mind the above principles of law, let me see if the finding of the learned Additional District Judge with regard to the ''swikarpatra (Ext. G) is perverse or not. This is the case of the plaintiffs that after the purchase of the suit property by the defendant on 6.8.74, the defendant created trouble over the suit property in possession of the plaintiffs and asked the plaintiffs to, go to the school building on 11.8.74 for talk regarding the suit property. Three of the four plaintiffs went there on 11.8.74 and the defendant with his associates under threat and force obtained their signatures on a blank paper. The plaintiffs on the same date after the said incident went to the police station and lodged the diary to. that effect and expressed also their apprehension that the defendant might create any document by the said signed paper.. The plaintiffs subsequently filed a criminal case also u/s 107 Cr. P. C. against the defendant over the same incident. These are matters of evidence and necessary documentary evidence to that effect were produced by the plaintiffs beside the oral evidence of P. W. 1. The defendant''s contention is that the defendant called a ''sallish'' on 11.8.74 in the school building and the plaintiffs voluntarily executed the ''swikarpatra'' (Ext.G) on the basis of settlement in that ''salish''. The defendant has examined himself as D. W. 1 and one Debdas Haider as D. W. 2 who was the scribe of the ''swikarpatra'' (Ext. G). This D. W. 2 Debdas Haider was also the scribe in respect of the kobala dated 6.8.74 by which the defendant purchased the suit property. It appears from exhibit G that some other persons also signed the ''Swikarpatra'' (Ext G) as witnessed but none of them was examined by the defendant. According to the evidence of D. W. 1 (defendant), the scribe (D W. 2) came to.the spot after completion of the talk of settlement of the dispute and only wrote, the ''swikarpatra'' (Ext. G) containing the terms of settlement as dictated to him. Not a single man of so-called salish'' has been examined by the defendant. The learned Additional District Judge came to the finding on the basis of the evidence of D. W. 1 and D. W. 2 without considering at all the value of the'' G. D. entry dated 11.8.74 made by the plaintiffs in the police station and without considering the evidentiary value of the filing of the criminal case u/s 107 Cr. P. C. against the defendant. He has also not considered the negative evidence that the defendant did not examine any ''salishman'' or any of the witnesses to the ''swikarpatra'' (Ext G.). The learned Additional District Judge did not consider also if it was probable on the part of the plaintiff to execute the ''swikarpatra'' (Ext. G) admitting the title of the defendant after resisting the attempts of all the prior owners to dispossess the plaintiffs and. after asserting their hostile title by adverse possession in the earlier suit. The learned Additional District Judge did not consider also legal value of the ''swikarpatra'' (Ext. G) which bears the signatures of three plaintiffs only and not of the four plaintiffs who are admittedly in possession of the eight rooms of the suit property and which was said to have been executed in respect of the entire suit property, although according to the defendant only eight rooms in possession of the plaintiffs were in dispute.
The learned Munsif appears to have considered most of the aforesaid points and Then held that the ''swikarpatra'' (Ext. G) was manufactured by the defendant after forcibly procuring the signatures of the three plaintiffs on a blank paper. The learned Additional District Judge without considering the '' above-mentioned relevant evidence held otherwise. Such finding of fact of the learned Additional District Judge not based upon an appreciation of all the relevant evidence is undoubtedly perverse and deserves the merit of inters reference by the second appellate court.
I have considered all the relevant evidence, facts and circumstances as mentioned above and in agreement with the findings of the learned Munsif I hold that the ''swikarpatra'' (Ext. G) was manufactured by the defendant by obtaining the signatures of the three plaintiffs on a blank sheet of paper and that it was got no legal value at all to create title in favour of the defendant as already sated (sic)
I therefore that the learned Additional District Judge committed mistake in law in dismissing the suit on reversing the judgment and decree of the learned Munsif it is true that the plaintiff can not get the decree in respect of the entire suit property consisting of ''eleven room as three rooms out of those eleven rooms have been found to be in rightful possession of the heirs of Sachindra Rakshit. Accordingly the plaintiffs are entitled to get the relief in respect of the eight rooms which are in there possession. In the result this second appeal is allowed on the judgment and decree of dismissal as passed by the learned Additional District Judge are hereby Set aside and the judgment and decree as passed by the learned Munsif to the extent of eight rooms in possession of the plaintiffs are restored and confirmed.
I make no order as to costs in this appears.