Senior Manager, Jagannathpur Tea Estate vs Parendra Malakar And Ors

[1] This appeal is filed by the original defendant to challenge the judgment and decree dated 29.04.2016 passed by the learned Civil Judge, Sr. Division, Kailashahar, Unakoti Judicial District in Title Suit No.30/2015 as confirmed by the lower appellate Court by a judgment dated 19.08.2016.

[2] Brief facts are as under:

The respondents herein had filed the said civil suit in which it was contended that a land ad-measuring 5.88 acres of village Pachardahar was allotted to the plaintiffs by the Government by an order dated 7.8.1996 passed by the Collector, Kailashahar. At the time of allotment the land was covered by a forest. The plaintiffs were poor and ignorant people. The defendant who was the General Manager of Jagannathpur Tea Estate offered to help them clear the forest to which the plaintiffs consented. The defendant cunningly obtained signatures of the plaintiffs on typed paper on which something was written in English which the plaintiffs could not understand. Thus misguided by the defendant the plaintiffs had put the signatures on the said document without knowing the contents thereof. The plaintiffs further averred that:

"4. ***** Thereafter the jungle of the suit land being cut, the defendant, instead of allowing the plaintiffs to use the suit land for agriculture, began to cultivate tea in the suit land despite strong objection of the plaintiffs. The repeated requests of the plaintiffs to hand over the suit land to them filed. Then the defendant kept the suit land under his possession by mere show of musle-power & money power and threatened the plaintiffs stating that they would have to face dire consequence if they ever try to enter the suit land.

That, they the plaintiffs being helpless and having no other way served Advocate's Notice dtd. 17.04.2015 asking the defendant to hand over the possession of the suit land to the plaintiffs. The defendant sent a reply thereof to the plaintiff's Advocate claiming some illegal baseless and fabricated contentions."

[3] In the plaint they have also averred that the land was allotted to the plaintiffs on impartible tenure. No permission to transfer the land was obtained from any authority. The plaintiffs, therefore, prayed for a declaration that the plaintiffs are in constructive possession on the suit land and the order may be passed recovering the actual possession of the land from the defendant. They also prayed for means profit.

[4] The defendant-appellant filed a written statement in which it was contended that the defendant was inducted in possession of the suit land by the plaintiffs voluntarily in January 2001. In addition to denying the averments made in the plaint, it was contended that in the first week of January, 2001 an oral agreement was arrived for transfer of the land to the defendant and the plaintiffs had delivered the possession of the land and thereafter after receiving consideration from the defendant the plaintiffs had executed a written agreement dated 3.3.2004. The defendant contended that the suit was barred by limitation and for non-joinder of the tea estate as a defendant.

[5] The trial Court raised various issues including whether the plaintiffs are entitled to the decree for recovery of possession of the suit land from the defendant.

[6] The plaintiff No.1 was examined as the PW-1. In his deposition he had stated that the defendant had misled the plaintiffs into signing a typed document. Thereafter the land was cleared, the defendant instead of handing over the possession back started cultivation of tea despite strong objection from the plaintiffs request for handing over the possession was not acceded to. He stated that possession of the suit land was taken through force.

In the cross-examination a suggestion was put to him that the defendant was enjoying the possession of the land since the year 2001 which he denied. He clarified that the defendant was in possession of the land since the year 2004.

[7] Defendant himself was examined as DW-1. In his deposition he stated that in the month of January, 2001 orally an agreement was executed which was later on reduced in writing on 3.3.2004. Under such agreements the plaintiffs had received full consideration for the value of the land in question pursuant to which the plaintiffs had delivered the possession of the suit land in favour of the Tea Estate voluntarily on condition that necessary permission would be obtained from the Collector for executing the sale deed.

In the cross-examination he agreed that he could not produce any registered document of the transfer of the land nor any document from the revenue record.

[8] The plaintiffs had also produced a legal notice dated 17.4.2015 in which it was contended that the plaintiffs' signatures were obtained through force and fraud. The defendant started using the land as part of the tea garden despite objection from the plaintiffs and the possession was taken over through force.

[9] On the basis of such evidence the trial Court came to the conclusion that the land in question was allotted to the plaintiffs, that they were in constructive possession of the suit land, that the defendant had not established that his title was perfected through adverse possession. The defendant was, therefore, not entitled to retain the possession of the suit land. The leaned Judge, therefore, passed a decree and the plaintiffs were held entitled to recover the actual possession of the suit land from the defendant.

[10] The defendant filed appeal before the appellate Court. The appellate Court confirmed the decision of the trial Court. Question of limitation was examined at length. On the basis of the finding that the defendant was in possession of the suit land since 2004, the suit which was filed on 15.09.2015 for recovery of possession was held to be within limitation as prescribe in Article 65 of the Schedule to the Limitation Act. It was notice that the plaintiffs were paying land revenue to the Government. It was held that the defendant was inducted into possession of the suit land by the plaintiffs voluntarily.

[11] The appeal was admitted under order dated 13.01.2017. Following substantial questions of law were framed:

"(i) Whether the judgment and decree passed by the Court below suffer from perversity or non-joinder of necessary party?

(ii) Whether the judgment and decree passed by the Court below suffer from perversity for non-appreciation of the evidence and materials on record on the point of limitation."

[12] Learned counsel for the appellant submitted that the plaint was vague and unspecific about crucial dates when the defendant was given permission to clear the land by the plaintiffs and when according to the plaintiffs the defendant had entered the suit land to the opposition of the plaintiffs for cultivation of the tea garden. He submitted that these dates were crucial in the context of the question of limitation for filing the suit. The trial Court ought to have rejected the plaint in exercise of powers under Order 7 Rule XI of the Code of Civil Procedure at the very threshold. In any case, the suit was barred by limitation. The defendant was, even according to the plaintiffs put in possession soon after the allotment of the land to the plaintiffs by the Government which happened in the year 1996. This matches with the case of the defendant that the plaintiffs had handed over the possession of the land to the defendant in the year 2001. If such possession was adverse to the plaintiffs, suit for recovering the possession should have been filed within 12 years from such date.

[13] Counsel further submitted that the plaintiffs had pleaded the case of constructive possession. If that be so, the question of passing a decree of handing over possession would not arise.

[14] Counsel lastly submitted that suit is also barred by non-joinder of necessary party. The defendant was mainly a Manager of the Tea Estate. The company was not joined as a defendant. The suit should therefore, had been dismissed.

[15] On the other hand, learned counsel for the respondents, original plaintiffs opposed the appeal contended that the question of limitation is a mixed question of law and facts. Two courts below have come to the conclusion that suit was filed within the limitation. Such findings are not shown to be perverse. At the second appeal stage this Court would not interfere.

[16] As noted, two questions of law have been framed. With respect to non-joinder of necessary parties, the same is possible of summary disposal. The defendant was joined in the suit and primary allegations in the suit have made against him of gaining the confidence of the plaintiffs through false representations and thereafter to forcibly enter the suit land to the opposition of the plaintiffs. Even in the written statement the defendant has stated inter alia that he was put in possession of the suit land by the plaintiffs voluntarily. It would be too late in the day now for the defendant to contend that the actions were taken by him on behalf of the tea estate company and, therefore in absence of the said company on record the suit should be dismissed altogether.

[17] More contentious issue however, is one of limitation. In my opinion, for the reasons to follow, both Courts have committed minor errors in approaching the real issue, nevertheless the ultimate outcome would not change.

[18] I have briefly recorded the pleadings of the parties and the relevant evidence led by both sides. The case of the plaintiffs all along has been that the land allotted to them by Government for the personal cultivation was thickly forested. The plaintiffs did not have wherewithal to clear such vegetation and make the land cultivable. Taking advantage of the situation the defendant persuaded the plaintiffs to let him help them clear such vegetation. Thereafter instead of handing back the possession of the land to the plaintiffs for their cultivation the defendant forcibly occupied the land for growing tea. The plaintiffs specifically objected through a legal notice dated 17.04.2015 demanding the possession back with no response.

[19] In the examination-in-chief plaintiff No.1 repeated this version as was stated in the plaint. In the cross-examination a pointed suggestion was made to him that the defendant was in possession of the suit land since the year 2001 which he denied and asserted that the defendant was in possession of the land since 2004. This version has been believed by both the Courts below. In absence of any contrary evidence, it is not possible to overrule this finding of fact. We may recall, the defendant though suggested that plaintiffs had executed an oral agreement in January, 2001 followed by a written document dated 3.3.2004, produced no document at all. If the defendant had produced the so called agreement in writing dated 3.3.2004, many things could have been clarified. Any such document would have referred to previous oral agreement if there was one. The defendant has not offered any explanation why such could not be produced before the Civil Court.

[20] What therefore, emerges is that the defendant initially entered the plaintiffs' land to clear it of its wild trees grown there. The defendant cannot claim the entry over the land for such purpose for himself or his agencies as being in possession of the land in question. His possession would commence only from the year 2004 when according to plaintiffs and which version the Courts below have accepted, the defendant started cultivating the land for the purpose of tea plantation which possession the defendant had acquired through fraud and force. The civil suit which was filed on 15.9.2015 was, therefore, well within the period of limitation of 12 years prescribed under the Limitation Act, 1963. Entry 65 to the Limitation Act pertains to period of limitation for possession of immovable property or any interest therein based on title. The period of limitation prescribe for filing suit in such cases 12 years and the period for commencement of limitation is "when the possession of the defendant becomes adverse to the plaintiff".

[21] The trial Court and perhaps the plaintiffs also proceeded and somewhat mistaken premise that the plaintiffs continued to be in constructive possession of the suit land. Nevertheless, such error would not vitiate the final judgment and decree. As noted, the plaintiffs had established the title over the suit land and the hostile possession of the defendant and filed the civil suit within a period of 12 years from the commencement of the cause of action.

[22] The appellate Court may also have committed minor error in viewing the possession of the defendant in two parts, namely, form the year 2001 till 2004 by way of permissive user and thereafter as possession adverse to the plaintiffs. In my opinion, as the evidence stands, any access of land to the defendant for the purpose of clearing the over growth was by way of license to enter and permissive entry in the land and cannot be mistaken as the possession of the land in question. The defendant could claim possession only in the year 2004 when, according to the plaintiffs, instead of handing back the land after clearing the forest area, the defendant forcibly entered the land for cultivation of tea garden.

[23] In the result, the questions are answered against the appellant and second appeal is dismissed.