Ganesh Payeng And Ors vs Kula Payeng And Ors

Heard Mr. N. Dhar, learned counsel for the appellant. Also heard Mr. P.K. Ghosh, learned counsel for the respondents.

The appellant plaintiffs instituted Title Suit No.13/1998 in the Court of Civil Judge, Senior Division, North Lakhimpur inter alia praying for

declaration of their right, title and interest over the suit land as well as for delivery of khas possession of the suit land to the plaintiffs after evicting the

defendants therefrom by demolishing the structures of the defendants over the suit land. In paragraph-8 of the plaint it had been pleaded as follows:-

“That, the contention made through first paragraph of the clause 8 of the plaint is neither denied nor admitted by the defendants and the

same is immaterial for defence and claim of defendants. But the defendants are strict to submit that the plaintiffs or their fathers or

forefathers had no possession over the suit land since mid of the year 1947. It also denied by the defendants that they had ever trespassed

into the suit land. The defendant No.2 has been passing under the roof of the house (develop by course of time) constructed and created by

late Kamet Payeng over North-East corner of the suit land and likewise defendant No.1 also has been living in the house built by his

deceased father within the suit land. Therefore any allegation as to trespass into the suit land by the defendants is a fabricated fact of the

plaintiffs just to bring the case under Section 145 of the code of Criminal Procedure.â€​

We have taken note of that there is no clear stand taken by the defendants to deny the stand of the plaintiffs in paragraph-8 that they were

dispossessed from the suit land on 01.05.87. The defendants makes a general denial that they deny that they had ever dispossessed from the suit land.

In their deposition in chief PW-1 being the plainitiff No.1 deposed that on 01.05.1987 the party of Kulo Payeng i.e. the defendant No.1 had

dispossessed them from 40 bighas 3 kathas 13 lechas of the scheduled land. In cross examination by the defendants, PW-1 reiterates that on 01.05.87

the plaintiffs were unable to enter the suit land as because the defendants had prevented them from doing so.

The defendants also made a counter claim for a decree of adverse possession against the plaintiffs. By the judgment dated 08.04.2004, the Title

Suit 13/1998 was dismissed by the learned Civil Judge, Senior Division, Lakhimpur, but at the same time the counter claim of the defendants was

allowed as regards the claim of right, title and interest over the suit land on the basis of adverse possession. On an appeal being carried out being Title

Appeal No.12/2006, the learned District Judge, Lakhimpur by the judgment dated 11.06.2007 had dismissed the counter claim of the defendants but at

the same time also upheld the dismissal of the Title Suit 13/1998 by the plaintiffs. Being aggrieved, the instant regular second appeal is being preferred.

One of the substantial question of law raised in the second appeal is as to whether the learned First Appellate Court while upholding the dismissal of

the title suit by the plaintiff was right in arriving at its conclusion that the plaintiff had failed to prove as to when they were dispossessed from the suit

land and therefore as it is indeterminable whether the suit was instituted within the period of limitation prescribed in Article 65 of the Limitation Act,

therefore the suit would not be maintainable and liable to be dismissed.

We confine our discussion to the relevant facts and provision of law that would be required for determining the substantial question of law raised.

We have already taken note of that the plaintiffs in their plaint in paragraph-8 had taken a specific plea that they were dispossessed from the suit land

on 01.05.1987 and in paragraph-10 of the written statement of the defendants while dealing with paragraph-8 of the plaint, there is no denial by the

defendants that the plaintiffs were dispossessed on 01.05.1987. We have also taken note of that in the evidence in chief, PW-1 had deposed that on

01.05.87, the party of Kulo Payeng i.e. the defendant had dispossessed them from 40 bighs 3 kathas 13 lechas of the schedule land. In cross

examination, it has been affirmed by the PW-1 that on 01.05.1987 the plaintiffs could not enter into the suit land as they were prevented from doing so

by the defendants.

Considering the aforesaid stand taken by the plaintiffs in the plaint, the stand of the defendants in the written statement, the evidence in chief of

PW-1 as well as his confirmation of the dispossession in cross, when we look into the conclusion arrived at by the learned Appellate Court that the

plaintiffs had failed to establish on which date the cause of action arose to calculate the period of 12 years for instituting a suit under provision of

Section 65 of Limitation Act, we are of the view that the conclusion arrived at by the learned Appellate Court as regards the absence of evidence on

the part of the plaintiff would be incorrect.

As the sole reason for upholding the dismissal of the suit of the plaintiff was that they had failed to establish on which date the cause of action had

arisen i.e. on which date the dispossession had taken place and therebeing evidence on record as indicated above, the conclusion arrived at by the

learned Appellate Court would be unsustainable. Further we also take note of that the suit was instituted on 17.09.1998, whereas, the cause of action

as pleaded and deposed by PW-1 on 01.05.1987. It being so, it would have to be construed that the suit was filed within a period of 12 years from the

date of the cause of action, if the dispossession had taken place on 01.05.1987.

In view of the infirmity as indicated above, we set aside the judgment dated 11.06.2007 of the learned District Judge, Lakhimpur in Title Appeal

No.12/2006 and remand the matter back for fresh consideration of the learned Appellate Court by taking into consideration and examine the legal

effect of the evidence of PW-1 as indicated above and pass a reasoned judgment thereof.

Send back the LCR.

The parties to appear before the District Judge, Lakhimpur on 07.04.2020.