Rasaraj Das And Ors vs Sukumari Acharjee And Ors

Heard Mr. KN Bhattacharjee, learned senior counsel assisted by Ms. J. Debbarma, learned counsel appearing for the appellants as well as Mr. S. Bhattacharjee, learned counsel appearing for the respondents.

The plaintiff-respondents have instituted a suit for declaration of right, title and interest of „A‟ schedule land measuring 0.20 acres under Khatian no. 746 and recovery of khas possession of „B‟ schedule land measuring total 0.05 acres under Khatian no. 746, which is the part and parcel of the „A‟ schedule land.

The facts of the case in brief are that, the father of the plaintiff-respondents no. 2 and 3 and husband of respondent no.1, Ramendra kumar Acharjee since deceased was the original owner and possessor of the „A‟ schedule land measuring 0.20 acres under khatian no. 746 appertaining to RS plot no. 3819 corresponding to CS plot no. 1950/3788 of Mouja- Kanchanpur by dint of allotment. The original owner was staying on his allotted land by making homestead and he died on March, 2006 leaving behind the plaintiffs, the respondents in the appeal. Late Ramendra Acharjee also had three daughters who were made as proforma-defendatns in the plaint but they executed one "Nadabipatra" (Deed of Relinquishment) registered vide Deed no. 1-150 dated 01.08.2007 in respect of their share in favour of Dipankar Acharjee and Priyankar Acharjee, their two brothers. The further case of the plaintiffs is that on 12.12.2010, in the morning, the defendants forcefully occupied and took possession of the „B‟ schedule land measuring 0.05 acres under khatian no. 746 inspite of objection of the plaintiffs and on that issue dispute was cropped up with the defendants, there appellants herein. The plaintiffs requested the defendants to vacate the suit land but, the defendants refused to vacate the same inspite of intervention by the local elderman. Over and above, the defendants took the plea that it is a government khas land and on that pretext had sought for demarcation of the suit land. It is also alleged that after demarcation, it was revealed that the defendants have illegally dispossessed the plaintiffs from the „B‟ schedule land belonging to htem which is the passage of the plaintiffs running from the residential house to the PWD road. It is further submitted that the defendants having no right, title and interest over the suit land have not yet vacated the disputed land and thus, the cause of action for the suit arose. With the above pleadings, the plaintiffs prayed for passing declaratory decree of their right, title and interest over the „A‟ schedule land and consequential relief of recovery of vacant possession of the „B‟ schedule land.

The defendants, the present appellants, appeared in the suit and filed written statement denying the claim of the plaintiffs. In the written statement, they have stated that they are possessing the suit land since 1982 within the knowledge of the government of Tripura and the world at large. The learned trial court in course of proceeding had framed the following issues:

(i) Whether the suit is maintainable in its present form and nature?

(ii) Has the plaintiff got any cause of action?

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

(iv) Whether the plaintiffs have got any decree, as prayed for?

(v) To what other relief/reliefs, the parties are entitled to?

(vi) Additional issue: Whether the defendant nos. 1 and 2 have acquired any right, title and interest over the 'B' schedule suit land by way of adverse possession?

The plaintiffs, the respondents herein, in support of their case, examined 4 witnesses and exhibited 6 nos. of documents. On the other hand, the defendants, examined 4 witnesses and exhibited 3 nos. of documents.

The learned trial Court after hearing argument and appreciating and analyzing the exhibited documents, decreed the suit and also directed the defendants i.e. the present appellants to hand over the vacant possession of the „B‟ schedule land in favour of the plaintiff within 30 days from the date of the judgment i.e. 12.08.2015. The present appellants preferred Title Appeal no. 4 of 2016 before the learned District Judge, North Tripura, Dharmanagar. The learned District Judge after hearing argument delivered the judgment on 08.12.2016 upholding the judgment of the learned trial court.

Thereafter, the defendants, as appellants, have preferred the present second appeal against the concurrent finding of the learned trial court as well as the appellate court. In the second appeal, the appellants have raised questions of law as substantial questions of law stating that appropriate legal provision has not been considered in the courts below while passing the decree. In support of this, the grounds taken in this appeal that the respondents at the time of filing of the suit have submitted a deed of Relinquishment (exhibit-6). It is claimed that the Deed was not registered in accordance with law. Thus, no right, title or interests in regard to the suit properties have been transferred and the learned trial court as well as the first appellate court had failed to analyze this aspect of the suit. It is further submitted that the learned trial court in its judgment have rightly analysed exhibit-6 and has stated that it is a Deed of Release, although it was styled as Deed of Relinquishment.

In course of hearing of this appeal, at the stage of admission, the appellants have proposed to urge the following substantial questions of law in:

(i) Non-consideration of appropriate legal provision;

(ii) Whether the judgment of both the courts below in regard to non-consideration of a document relating to a passbook issued by the Electricity Department in the name of the defendant-appellants is perverse?

The principle relating to the determination of substantial question of law has already been settled by several authorities. However, this court may profitably refer to certain decisions of the Apex court that appears to be relevant to the questions raised in this appeal, which has been reproduced here-in-below for consideration of the present appeal. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others reported in (1999) 3 SCC 722 [1999 STPL 4320 SC], the Apex Court has observed as under:

"4. It has been noticed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100, Code of Civil Procedure, It has further been found in a number of cases that no efforts are made to distinguish; between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the 1st appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal : cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufactuing Co. Ltd, AIR (1962) SC 1314 held that :-

"The proper test for determining whether a question of law raised in the case is substantial would, in bur opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views, If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absorbed the question would not be a substantial question of law."

It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.

If the question of law termed as substantial question stands already decided by a larger bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of Jaw. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it Cannot be termed to be an error either of law or procedure requiring interference in second appeal. This Court in Reserve Bank of India & Anr, v. Ramakrishan Govind Morey, AIR (1976) SC 830 held that whether trial court should not have exercised its jurisdiction differently is not a question of law justifying interference".

In State of Rajasthan and others vs. Shiv Dayal and another reported in 2019 STPL 9606 SC, the Apex Court has observed thus:

"21. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have searched (see observation made by learned Judge- Vivian Bose,J- as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & ors., aIR 1943 Nagpur 117 - para 43)

In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.

Coming to the facts of the case, we are of the view that the following are the questions which do arise for consideration in the suit/appeal for proper adjudication of the rights of the parties to the suit and are in the nature of substantial questions within the meaning of Section 100 of the Code.

First, whether the suit land was a part of a protected Forest area, i.e., Forest land and, if so, whether the parties satisfied all the statutory provisions of the Forest Laws enacted by the Center and the State?

Second, whether the suit land was a part of a Revenue land and, if so, whether the parties to the suit satisfied all the statutory provisions of the State Revenue Laws.

Third, whether a mining lease of the suit land could be granted by the State to the plaintiff for carrying out the mining operation in accordance with the provisions of the MMRD Act and, if so, whether it satisfied all the statutory provisions of the MMRD Act read with relevant Forest and Revenue Laws.

Fourth, whether a suit is hit by any provision of Forest Laws or MMRD Act or/and Revenue Laws expressly or by implication.

Lastly, whether the plaintiff on facts/evidence has proved that the suit land is a part of Revenue land and, therefore, it does not fall in the protected forest area and, if so, whether any prima facie case, balance of convenience and irreparable loss is made out for grant of permanent injunction in plaintiff's favour?

In our opinion, all the five questions enumerated above did arise in the case. As a matter of fact, the suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws mentioned above.

In our view, the High Court, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the aforementioned questions.

It is for this reason, we are of the view that the interference in the impugned order is called for to enable the High Court to decide the controversy in its proper perspective.

In the light of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned order is set aside. The case is remanded to the High Court for deciding the second appeals afresh on merits after framing appropriate substantial questions of law(s) arising in the case".

Having considered the substantial questions of law as set forth in the memo of the second appeal, as aforestated, I make it clear that a Deed of Relinquishment or Deed of Release, whichever it may be, the present appellants who are the defendants in the original suit can not in any way question the right, title and interest of the plaintiff-respondents over the suit land. The defendant-appellants have failed to prove that any of the executors of the said Deed of Relinquishment at any point of time had disputed relinquishment of their respective shares in favour of the plaintiff-respondents No. 2 and 3. Furthermore, it is a pure question of fact. As per the Oxford Dictionary, the meaning of the word „relinquishment‟ is „voluntarily cease to keep or claim‟. Similarly, as per Black's Law Dictionary, the meaning of the word „relinquishment‟ is „forsaking, abandoning, renouncing or giving over a right‟. In the instant case, by executing a Deed of Relinquishment, two co-sharers have abandoned their right, title and interest relating to a particular property. Execution of Deed of Relinquishment is a question of fact which is relied upon by both the courts below. In my opinion, in absence of any dispute raised by the executors of the "Deed of elinquishment", the defendants have no manner of right to doubt the title of the plaintiffs.

Next, dealing with the second substantial question of law, I have perused the findings of both the courts below. This court has made a specific query to Mr. KN Bhattacharjee, learned senior counsel about the evidence the defendants had laid to justify or to substantiate their claim of adverse possession. The learned senior counsel has drawn my attention to a document relating to the electric consumer pass book for a period of more than 12 years where the name of the defendant-appellants is recorded and based on which the defendants have tried to substantiate their plea of adverse possession.

After perusal of the evidence on record, I find that the defendant-appellants have categorically stated in their evidence that without any knowledge that the plaintiffs are the real owner of the suit land, they started to possess the suit land on the pre-text that it was a government khas land. One of the essential requirement of claiming title by way of adverse possession is that the person who claims such acquisition of title must have possessed the land knowingfully well that a particular person is the true owner of the suit land and further he acknowledges such person as true owner. [Emphasis supplied]

In T. Anjanappa and others vs. Somalingappa and another, reported in (2006) 7 SCC 570 [2006 STPL 14048 SC], the apex court has held as under:

"4 .During the pendency of O.S. No.168/85, the defendant No.1 therein filed a suit in O.S. No.286/88. The plaint averments are reproduction of the written statement in O.S.No.168/85.

The trial Court dismissed the suit of T. Anjanappa, T. Sekharam and T. Govind (plaintiffs in O.S. NO.168/85) by rejecting claim of plaintiffs' title to the property. The suit filed by T. Somalingappa i.e. O.S.No.286/88 came to be allowed. Present appellants filed two appeals against the judgment and decree in O.S.No.168/85 and O.S.No.286/88 before the Civil Judge, Senior Division, Bellary. In appeal, the appellate court set aside the judgment and decree of the trial Court in O.S.No.168/85 and O.S.No.286/88, upheld the title of the plaintiffs and also granted relief of possession and thus allowed both the appeals filed by the plaintiffs. Second Appeals were filed challenging correctness thereof by T. Somalingappa and Dakshyanamma.

The following substantial questions of law were formulated at the time of admission :

Though the appellate Court has concurred with the findings of the Principal Munsiff regarding the appellant's possession and enjoyment of the property even before the purchase of the property by the respondent, whether the appellate court was justified in dismissing the suit of the appellants for injunction which was decreed by the Principal Munsiff.

The suit schedule property which was declared by the Government as a slum area, the action of the Municipality in granting allotment of the same in favour of the other persons. Whether the Municipality has got the power to allow the site, which was declared as a slum area by the government in favour of other persons.

The following additional substantial questions of law were framed at the time of hearing:

(1) Whether the appellate Court was right in declaring title of the plaintiffs on the basis of Ex.P.1 which came to be executed after filing of the suit in O.S.No.168/85?

(2) Whether the appellate court committed error in appreciating the oral and documentary evidence regarding the plea of adverse possession put forth by the defendants and the findings thereon are perverse and contrary to evidence on record?

According to the High Court, ticklish situation arose in the legal combat between the parties. When the suit O.S.No.168/85 was filed, obviously the plaintiffs had no title to the property, but they sought for declaration of title. In the absence of title, there was no basis for the plaintiffs to seek possession from the defendants. It was contended that the plaintiffs had taken the property as a security in a mortgage transaction from the erstwhile owner. High Court noted that the mortgage deed is not produced. It was observed that there is nothing on record to show that it was a possessory mortgage. Unless the plaintiffs had some kind of title or possessory interest they could not have sought for relief for possession.

According to the High Court though the defendants were in possession under the mistaken assumption of title with themselves or with the Government, same cannot be a ground to hold that the possession is not a hostile possession from the standpoint of the real owner. It was further held that the real owner when dispossessed under Article 64 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') has to seek possession within 12 years from the date of dispossession. It was therefore held that the findings of the court below i.e. first appellate Court that the defendants had failed to prove the plea of adverse possession is perverse and contrary to law and evidence on record. After holding so, it was further held that though the documents produced by the defendants do not fully establish the case of adverse possession to the full extent of 15' x 75', yet the stand of the defendants about actual physical possession read with the admission of the plaintiffs sufficiently establish that the defendants were in adverse possession of 15' x 75'. It was further held that even otherwise, the suit for possession to that extent was not filed within 12 years of dispossession and therefore grant of decree for declaration of the title and possession to that extent in favour of plaintiffs (appellants herein) is bad in law and liable to be set aside.

Learned counsel for the appellants submitted that the High Court's approach is clearly unsustainable in law. The concept of adverse possession has been clearly misunderstood by the High Court.

Learned counsel for the respondents on the other hand submitted that in view of the accepted position that the defendants were in possession for more than 12 years and that actual physical possession was with them the High Court cannot be faulted.

The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.

Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. (See Vidya Devi v. Prem Prakash and Ors. (1995 (4) SCC 496).

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.

"Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil (AIR 1995 SC 895 at 902).

Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29).

Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion (1880 (14) Ch D 537).

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title.

According to Pollock, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others".

It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.

In Halsbury's 1953 Edition, Volume-I it has been stated as follows:

"At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgement. The operation of the statute is merely negative, it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the others to eject him"

It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

Further, in Dagadabai (Dead) by L.Rs. vs. Abbas @ Gulab Rustum Pinjari, reported in (2017) 13 SCC 705 [2017 STPL 4431 SC], the apex court has observed as under:

"In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants".

Where both the courts below have found that the defendants in cross-examination have admitted that they have got no knowledge about the true owner of the suit land and they entered and started to possess the suit land on the understanding that it was a government khas land, according to me, this is sufficient that the defendants have miserably failed to discharge their statutory burden to prove the ingredient of adverse possession.

To substantiate the claim for acquisition of title by way of adverse possession, one has to prove that his possession is actual, and hostile to the actual owner of the land which he is possessing uninterruptedly and continuously beyond the statutory period prescribed for that purpose under Article 65 of the Limitation Act and within the knowledge of the true owner. Mr. KN Bhattacharjee, learned senior counsel has tried to persuade this court that because of the fact that electric connection was issued in favour of the defendants, the court is to presume that the appellants have acquired right, title and interest over the suit property by way of adverse possession, which, according to me, is bereft of merit and I repel such submission. It is now well-neigh settled that possession however long it is, would not tantamount to acquisition of title by way of adverse possession.

In the instant case, in view of the ratio enunciated in the case of Kondiba Dagadu Kadam (supra), Shiv Dayal (supra), and T. Anjanappa (supra), I find that the defendants have miserably failed to point out perversity in any of the findings as returned by the courts below.

Accordingly, the judgment and decree passed by the courts below are affirmed.

Having found no ingredients of acquiring right, title and interest by way of adverse possession, which the defendant-appellants have claimed, the instant second appeal stands dismissed.