Maulabi Md Mobarak Hussain @ Ali vs Moimana Nessa

Prasanta Kumar Deka, J

Heard Mr. P. P. Das, learned counsel for the appellant.

The present appellant is the defendant in Title Suit No. 146/2014 filed by the plaintiff respondent claiming her right, title and interest over the suit land described in schedule-A of the plaint. The plaintiff respondent is the recorded pattadar of the suit land which she inherited from her father. The defendant appellant runs a grocery shop just near the house of the plaintiff respondent who used to buy goods from the said shop. Owing to her financial problem she could not repay the credit in the said shop and allowed the defendant appellant to enjoy the possession of the suit land for five years. After completion of five years period in the year 2004 the possession of the land was delivered back to plaintiff respondent and she started cultivating thereon. The defendant appellant trespassed into the suit land and tried to construct 'ek Sali 'house. For the said illegal act the suit was filed.

The defendant appellant contested the suit. It is the stand taken by him that the suit land measuring 1 katha 5 lechas was sold to him by the plaintiff respondent on 12.6.1998 by way of an unregistered sale deed. On 28.3.1980 another unregistered sale deed was executed by plaintiff respondent in favour of the defendant appellant for a plot of land measuring 12 and ½ lechas from the said dag. The defendant appellant acquired his right of adverse possession over the suit land since the date when and purchased by constructing ek sali house over the land. He had a rice mill standing there which was not in existence on the date of filing the suit.

Defendant appellant on the basis of said pleadings filed the counter claim seeking the relief for execution of the registered sale deed in his favour and further declaration of adverse possession over the suit land. The trial court decreed the suit declaring the right, title and interest of the plaintiff respondent over the suit land alongwith permanent injunction. Title Appeal No. 1/2017 was filed challenging the judgment and decree of the trial court and the same was dismissed vide judgment and decree dated 19.5.2018. Being aggrieved the present second appeal is preferred and is taken up for admission.

Mr. Das, learned counsel for the defendant appellant submits that the findings of the court below are perverse inasmuch as there were unregistered agreement for sale on the basis of which the defendant appellant possessed the suit land even then the court below held that the defendant appellant did not purchase the suit land through any unregistered sale deed.

Against the said submission, the findings of the first appellate court is considered. The said unregistered sale deed Ext. Ka was duly examined by the court below and came to the finding that the said Ext. Ka is devoid of any dag No. and Patta No. of the land purchased by the defendant appellant not to speak of the names of village, Mouza. As a counter claimant the burden lies upon the defendant appellant to prove the execution of Ext. Ka which as per the finding of the court below is missing. Accordingly, in my opinion the courts below had rightly arrived at such finding and dismissed the counter claim. An unregistered sale deed cannot confer any right, title and interest to any person. Moreover in order to entitle the counter claim for relief of specific performance for contract even if the unregistered sale deed Ext. Ka can be treated to be an agreement for sale, but the execution of said Ext.Ka must be proved. The defendant appellant failed to prove the execution of the said Ext. Ka.

It is again submitted that as there was no title derived by the defendant appellant but his possession of the suit land can very well be held if Ext.Ka is taken into consideration for collateral purpose like entry of the defendant appellant over the suit land. As the said entry continued as such the factor of adverse possession ought to have been taken into consideration by the courts below.

On perusal of the judgment passed by the courts below it is found that both the courts below held that both the plea of purchase and adverse possession over the suit land cannot go together which in my opinion had rightly held by the courts below. In the former, entry over the suit land is without any ingredient of hostility and without any frame of mind to dispossess the plaintiff respondent. But in the latter case the basic and the main ingredient is entry to the suit property with hostility and with the frame of mind to dispossess the plaintiff respondent even if she is the rightful owner of the property. The said frame of mind i.e. animus possessendi have have to continue from a specific period which is also missing in the pleading of the defendant appellant.

Accordingly I do not find any merit in this second appeal for formulating any substantial questions of law and the same is dismissed at this admission stage.