Phanindra Nath Das vs Kali Bala Adhikary

Gorachand De, J.—This second appeal is directed against the judgment and decree dated June 9, 1978 passed by the Additional District Judge, third Court at Howrah in Title Appeal No. 50 of 1977 by which he reversed the judgment and decree dated January 29, 1977 of the Munsif of the fifth Court, Howrah in Title Suit No. 9 of 1969.

The Plaintiff instituted the title suit on January 15, 1969 praying for declaration of his title and for a permanent injunction in respect of a land measuring 50 Ft. X 1 Ft. (''Kha'' schedule to the plaint), which is claimed to be a part of the ''Kha'' schedule land appertaining to C.S. plot No. 1615 Khatian No. 151 of Mouza: Ramchandrapur, P.S. Sankrail, Dist. Howrah. The plaint case is that the Plaintiff is the owner of the plot No. 1615 of Khatian No. 151 having an area of .16 decimal and plot No. 1614 having an area of .04 decimal on the basis of a sale deed dated Falgun 24, 1335 B.S. and the southern portion of his purchased land was demarcated by a-fencing and he has been possessing {he same all along. The Defendant possesses the plot No. 1613, which is adjacent south to the plot No. 1615. But the Defendant illegally uprooted the southern fencing of plot No. 1615 and tried to encroach the lKha'' schedule land for which a criminal case was started at the instance of the Plaintiff. Since a cloud was cast on the title of the Plaintiff in respect of the ''Kha'' schedule land, the suit was instituted praying for the relief�s hereinabove mentioned. A sketch map was also annexed to the plaint. The Defendant contested the suit after filing a written statement and denying the material allegations made in the plaint. In course of hearing of the title suit a pleader Commissioner was appointed and he submitted his local investigation report. Thereafter the suit was finally tried on evidence and the learned Munsif found that the ''Kha'' schedule land was a part of the plot No. 1615 and accordingly, decreed the suit.

The first appellate Court, however, came to a finding that it was impossible to ascertain by local investigation as to whether the ''Kha'' schedule land is a part of the plot No. 1615 and the report of the Commissioner for local investigation could not be accepted. It was also found that the Plaintiff never exercised any act of possession over the suit property and the� Defendant was possessing the said land since the purchase of the C.S. plot No. 1613 openly and adversely in assertion of his hostile title and thus the Defendant acquired a valid title on the ''Kha'' schedule land by adverse possession though it has not been proved that it appertains to his plot No. 1613. Accordingly, the appeal was allowed and the suit was dismissed.

In course of hearing of this appeal, the Learned Counsel appearing on behalf of the Appellant pointed out that at the time of admission hearing of this second appeal, the substantial question of law was formulated as follows:

Whether the lower appellate Court was justified in holding that the Defendant had acquired title to the disputed land by adverse possession even though the lower appellate Court did not find any act of possession by the Defendant of the suit land.

But he wanted to frame two more substantial questions of law as follows:

i) When the Defendant claimed title on" the plot No. 1613 and also in respect of the ''Kha'' schedule land in suit, can he claim acquisition of title by adverse possession ?

ii) Did the first appellate Court consider all the ingredients and requirements in respect of adverse possession of the Defendant ?

The Learned Counsel appearing on behalf of the Respondent took a preliminary objection citing a decision of the Apex Court Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, that the High Court can exercise its jurisdiction u/s 100 of CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. It is pointed out that the substantial question of law as was framed at the time of admission hearing, referred to hereinabove, cannot be treated as a substantial question of law as the question of adverse possession is merely finding of facts. So the Learned Counsel concluded that the further two points urged by the Learned Counsel for the Appellant should not be looked into in this final hearing of the second appeal. It is further argued that if the added two points are allowed to be admitted and argued, it wilt enlarge the Scope of Section 100. The Learned Counsel further argued that the Appellants will have to prove his own case and they cannot take advantage of the weakness of the Defendants.

The Learned Counsel for the Appellant, however, clarified that the two added points are only elucidation of the substantial question of law as was framed at the time of admission hearing and hence, there is no reason to consider it as enlargement of the scope of Section 100. From the points raised by the Learned Counsel for the Appellant as are indicated hereinabove, I accept the submission that those are mere elucidation of the substantial question of law as was framed at the time of admission hearing of this second appeal and hence, those can be looked into in this second appeal. Moreover, on the basis of the substantial question of law as was framed, there is scope to examine the finding of the first appellate Court as regards the legality of adverse possession in respect of the land for which the Defendant claims title on the basis of her purchase.

It is already stated above that in the plaint it is claimed that the ''Kha'' schedule land measuring 50 ft. X 1 ft, is a part of C.S. plot No. 1615. But the defence case is that it is a part of C.S. plot No. 1613 which she has been possessing for a long period. From the findings of the trial Court it appears that the ''Kha'' schedule land is a part of C.S. plot No. 1615. On the other hand, the finding of the first appellate Court is that even if the ''Kha'' schedule land is not found to be appertaining to plot No. 1613, the Defendant has acquired a good title by adverse possession in respect of the said ''Kha'' schedule land. This finding of the first appellate Court coupled with the finding that it is impossible on the basis of repayment to ascertain as to whether the ''Kha'' schedule land is a part of plot No. 1615 or 1613 deserves judicial scrutiny, specially in view of the fact that a third case has been made out. It is already stated above that the defence case is that the Defendant is the owner of the C.S. plot No. 1613 and that the ''Kha'' schedule land is part of the said plot and she has acquired a good title by adverse possession of the said land. The plea of adverse possession is not available to the Defendant here since her claim is based on lawful title and the law is settled an this point in Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, .

The Learned Counsel for the Appellant placing reliance on a Division Bench judgment of this Court Minor Nantu Bag and Anr. v. Smt. Rasana Bala Dasi and Ors. 2000 W.B.L.R. (Cal) 313 contended that since coming into force of Limitation Act 1963, the entire scenario is changed. Whereas in terms of Articles 142 and 144 of the Limitation Act 1908, the Plaintiff is required not only to prove his title but also possession within 12 years from the date of filing of the suit; in terms of Articles 64 and 65 of Limitation Act 1963 the Plaintiff once proves his title and/or possession it is for the other side to show that he has acquired title by adverse possession. It is argued that under both the Articles of Limitation Act of 1963 where the Plaintiff proves his title or possession in respect of the property, the relief�s prayed for by him cannot be denied unless the Defendant proves title by adverse possession or proves batter title in the land in dispute. On this score reliance was also placed on a decision of the Apex Court S.M. Karim Vs. Mst. Bibi Sakina, . The Learned Counsel further placed reliance on a decision of the Apex Court State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., in support of the contention that concrete proof of open hostile and continuous possession is required in order to substantiate a claim of perfection of title by adverse possession. In this decision it was also viewed by the Apex Court that findings based on surmises and conjecture, perverse findings not based on legally acceptable evidence and which are patently contrary to law, cannot have any impunity from interference in the hands of the appellate authority.

The Learned Counsel for the Appellant scanning the judgment of the first appellate Court pointed out how the reasoning were given on the basis of surmises and conjecture and how a third case was made out ignoring the pleadings of the parties. I am satisfied from the materials produced before this Court that such finding of the first appellate Court is not based on proper appreciation of facts and materials placed on record and accordingly, it is liable to be set aside.

In this connection, it is pertinent to mention that the plaint case is that ''Kha'' schedule land is a part of plot No. 1615 and the Plaintiff-Appellants have produced the deed of title in respect of the said land. On the other hand, the defence case, as clarified by evidence, is that the Defendant acquired title on the basis of a patta in respect of the plot No. 1613. But the said deed of title was not produced before the trial Court or before the learned Commissioner who held the local investigation in the suit. It further transpires that the first appellate Court found some illegality in the Commissioner''s report and come to a finding that the Commissioner''s report cannot be accepted. The trial Court also observed that there was no major defect in the report. The fact remains that according to the trial Court the report was not flawless. So, the report of the learned Commissioner for local investigation cannot be accepted, and it is rejected. But for the reason the suit cannot be dismissed. On the other hand, it would have been proper for the finality of litigation to direct a fresh local investigation after taking into consideration the title deeds of the parties. The Learned Counsel of both sides conceded this point.

Considering the circumstances and keeping in view the dispute in this case, it is held that the judgment and decree of the first appellate Court are liable to be set aside. Similarly, the judgment and decree of the trial Court are also liable to be set aside for giving an opportunity of a fresh local investigation and for ascertaining as to whether the ''Kha'' schedule land is a part of the plot No. 1615 or 1613, or how much of it appertains to either of the plots. Hence, the suit is liable to be sent back on open remand to the trial Court for re-hearing and a fresh decision on all points on the basis of the pleadings of the parties and in the light of the observations made hereinabove, after giving the parties an opportunity to adduce further evidence including a fresh local investigation.

The appeal is accordingly allowed. The judgment and decree of both the courts below are set aside and the suit is sent back on open remand to the trial Court for reconsideration of the entire matter as indicated hereinabove as expeditiously as possible, preferably within six months from the date of communication of this order. The parties do bear their own cost of this appeal. Let the lower court records be dispatched with promptitude.

Xerox certified copies, if applied for may be supplied to the parties on usual undertakings.