Roushanara Begum (Mustt.) vs Muslim Ali

D. Biswas, J.—This Second Appeal was admitted by this Court on 21.1.98 for hearing on the substantial questions of law as enumerated in the Memo of Appeal. The questions available at page 5 of the Memo of Appeal are as follows:

Whether the finding of the learned lower appellate court suffer from the infirmity of non-consideration of important relevant evidence ?

Whether the finding of the learned lower appellate court that the suit is bad under Article 64 of the Limitation Act, 1963 in sustainable?

Whether the learned lower appellate court committed error of law in not applying Article 65 of the Limitation Act, in the facts and circumstances of the case ?

Whether there was proper pleading and proof of the requisite ingredients of adverse possession and whether in the facts and circumstances of the case the Plaintiff''s relief for possession based on title could be defeated, by holding that the Defendant acquired title because he was in possession for more than 20 years ?

I have heard Mr. B.K. Goswami, learned Sr. counsel assisted by Mr. N. Chakraborty, learned Counsel for the Appellant and also Mr. G.P. Bhowmick, learned Counsel assisted by Mr. A. Verma for the Respondent.

Mustt. Roushanara Begum, the Appellant herein, as Plaintiff filed Title Suit No. 214/87 in the Court of the learned Sadar Munsiff No. 1 at Guwahati for recovery of khas possession of the disputed land and also for arrears of rent with alternative prayer for declaration of right, title and interest. The learned Munsiff by the judgment dated 19.5.94 decreed the suit for recovery of possession. Being aggrieved by the aforesaid judgment and decree, the Defendant Md. Muslim Ali preferred Title Appeal No. 29/94 which was disposed of by the learned Civil Judge (Sr. Divn.) No. 2, Guwahati by the judgment dated 30.8.97. The first appellate Court allowed the appeal and set aside the judgment and decree passed by the learned Munsiff and dismissed the suit holding that the Defendant has acquired title over the disputed land by adverse possession.

The Plaintiff''s case before the learned appellate Court was that she is the absolute owner of the suit land measuring 2 bighas 8 lechas with a thatched house standing thereon as described in the schedule to the plaint. In the month of January, 1972 the premises was let out to the Defendant Respondent herein at a monthly rent of Rs. 25/-. The Defendant defaulted to pay the rent for about 7 years and surreptitiously made some addition and alteration of the suit premises. Hence, the suit for recovery of possession for bonafide use and also for arrears of rent with alternative prayer for declaration of title etc.

The Defendant''s case as reflected in the written statement is that the suit land was a khas and jungle land which was reclaimed by him in the year 1963 and he had constructed four thatched houses thereon where he has been living till date. His case is that he had acquired title over the disputed land by adverse possession.

The learned Munsiff came to the conclusion that the plea of acquisition of title by adverse possession is not sustainable because the relationship between the parties as landlord and tenant has been established. On the other hand the learned first appellate Court held that the Defendant was not a tenant under the Plaintiff and is in possession of the premises beyond 12 years. Hence, the suit of the Plaintiff is barred under Article 64 of the Limitation Act.

Mr. B.K. Goswami, learned Sr. counsel argued that both the Courts below concurrently held that the land in question belonged to the Plaintiff and the appellate Court specifically concluded that the Plaintiff had acquired title over the suit land by purchase from the original owner. It is a case, according to Mr. Goswami, where the burden of proof lies heavily on the Defendant to show that he has been in hostile, notorious and uninterrupted possession of the suit land beyond the period of limitation as prescribed in Article 65 and not as prescribed under Article 64 as held by the learned appellate Court. The burden is not on the Plaintiff to show that she has come to the court within the period of 12 years. According to Mr. Goswami, the Defendant in the instant case has utterly failed to discharge his burden.

Article 64 provides 12 years as the period of limitation for a suit for possession of immovable property based on previous possession and not on title. In a case where the Plaintiff in possession has been dispossessed, the time for limitation begins to run from the date of dispossession. On the other hand, Article 65 provides for the same period of limitation for a suit for possession of immovable property or any interest therein � based on title and the period begins to run from the date when the possession of the Defendant becomes adverse to the Plaintiff.

The distinction between Article 64 and 65 is clear from its language. Article 64 is applicable to a case where possession of immovable property is sought to be retrieved on the basis of previous possession and not on title. In a suit where the Plaintiff complains of dispossession and prays for recovery of possession, he has to approach the Court within 12 years and prove such dispossession. The provisions of Article 65 will be applicable when a suit is filed for possession of immovable property based on title and the Defendant resists the same on the ground that his possession is adverse to the Plaintiff for a period exceeding 12 years. In the later case, the burden will be on the Defendant to prove the point of time when his possession became adverse. The burden is on him to prove that his possession is not only hostile and notorious but also for a period exceeding 12 years without any interruption. But the learned first appellate Court came to the conclusion that the title of the Plaintiff became extinct since she did not approach the Court within the period of 12 years. This is undoubtedly an error of law which misdirected the learned first appellate court in his approach to the controversy at hand. Therefore, the pleadings and the evidence on record have to be read to determine as to whether the Defendant-Respondent succeeded to prove as to when his possession became hostile to the Plaintiff and whether he has been in uninterrupted possession of the suit premises for a period of 12 years from that point of time.

Before that I would like to refer to a decision of the Hon''ble Supreme Court in the case of Indira Vs. Arumugam and Another, In para 5 of the judgment, the Hon''ble Supreme Court held as follows:

It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the Defendant proves adverse possession for the prescriptive period, the Plaintiff cannot be non-suited.

Even long before this Court in the case of Hanjabam Bapumcha Sharma and Anr. Appellants v. Hanjabam Gokulchandra Sharma and Ors. Respondents AIR 1975 Gau. 47 held as follows:

The law is well settled by the Supreme Court that when a suit is for possession of immovable property and is based on previous possession and not on title, Article 64 applies, and when a suit is for possession of immovable property but it is based on title, then Article 65 applies. In the case of Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, Their Lordships of the Supreme Court have held "Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the Plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title." The law therefore is that when a Plaintiff brings a suit for possession of immovable property basing his suit on title and his title is established, then Article 65 of the Act would apply and it will be the Defendant''s burden to prove that he has acquired title by adverse possession. In other words, he will be required to prove that he is in possession adversely to the Plaintiff for the statutory period of 12 years. When however, a Plaintiff brings a suit for possession of immovable property but bases his suit on previous possession but not on title, Article 64 applies. In this case, there is a clash between the two kinds of possession of the Plaintiff as well as of the Defendant and as the Defendant is admittedly in possession, the Plaintiff cannot get a decree unless he proves existing title. Hence, the burden is upon the Plaintiff to prove that he has instituted the suit within 12 years from the date of dispossession, and that his title has not been extinguished u/s 27 of the Limitation Act.

The distinctive features of Article 64 and 65 are also available in the decision of the Supreme Court in the case of Abubakar Abdul Inamdar (dead) by LRs. and others Vs. Harun Abdul Inamdar and Others, Therefore, there cannot be any dispute that a person pleading adverse possession has to prove the same. There is no room for equity in a plea of adverse possession. The Supreme Court in Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, observed that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. In the absence of complete and sufficient pleading, the plea of adverse possession will be of no avail.

The Defendant in his written statement all through denied the title of the Plaintiff. In para 5 and 9 Of the written statement the Defendant submitted as follows:

That the Defendant begs to state as follows:

That the Defendant is a permanent resident of Azra Hat Khola Para. The Defendant is in occupation of the land measuring about 2 Bigha 8 Lechas of land in Dag No. 221 and 222, K.P. Patta No. 32 of village Azra Mouza Ramcharani since the year 1963. The Defendant developed the land and erected four thatched houses and one Assam Type house which is yet to be completed. The Defendant lives there with his family members. The part of this land is basti land and other part of the land is cultivated by the Defendant himself. The Defendant has planted various trees and also planted Tamul, bamboo, Namgo trees in the basti land. The entire land is being peacefully and absolutely possessed by the Defendant. At no point of time this Defendant ever visited the said plot of land. Some times in the year 1964, one Msstt. Anjuman Ara visited the said plot of land. But she never interfered with the possession of the land.

That the right, title and interest of the Plaintiff, if she has any, has extinguished under the provisions of the Limitation Act and under the principle of adverse possession.

It would appear from the pleadings above that the Defendant claims to have reclaimed the land and in possession thereof since 1963. In his additional written statement, in para 4, the Defendant-Respondent pleaded as below:

That the answering Defendant since in possession of the land described in the schedule since 1963 and having set up a hostile title by erecting houses on the land described in schedule of the plaint, the Plaintiff''s title on the land if any, is lost u/s 64 and 65 of the Limitation Act, and as such no such alleged title of the Plaintiff is existed.

Whether the pleadings above can be construed to be sufficient for the purpose of declaration of title by averse possession or for protection of hostile possession. In Abubakar Abdul Inamdar (dead) by LRs. and others Vs. Harun Abdul Inamdar and Others, it has been held:

With regard to the plea of adverse possession, the Appellant having been successful in the two courts below and not in the High Court, one has to turn to the pleadings of the Appellant in his written statement. There he has pleaded a duration of his having remained in exclusive possession of the house, but no where has he pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs, and his being in possession openly and hostilely. It is true that some evidence, basically of Municipal register entries, were inducted to prove the point but no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party. The High Court caught the Appellant right at that point and drawing inference from the evidence produced on record, concluded that correct principles relating to the plea of adverse possession were not applied by the courts below. The finding, as it appears to us, was rightly reversed by the High Court requiring no inference at our end.

The pleadings reproduced hereinbefore show that the Defendant has pleaded exclusive possession since 1963. But nowhere it mentions of any overt act on the basis of which it could be inferred or ascertained that from a given point of time his possession became hostile and notorious. The Plaintiff-Appellant has tendered in evidence the revenue receipts, and the purchase deed executed by the original owners. Besides at her instance the Assistant Settlement Officer cancelled the rayati patta issued in the name of Muslim Ali, the Defendant-Respondent by an order passed on 18.7.1977. The Jamabandi (Exhibit-6) also shows that the name of the Appellant has been recorded as purchaser of the suit land. The Jamabandi further shows, as stated above, that the record was corrected deleting the name of Defendant-Respondent as Rayat (tenant). The Defendant, obviously, did not challenge the order of the Assistant Settlement Officer which was passed in the year 1977. Atleast till 1977, there is no evidence that the Defendant ever asserted his right on the basis of adverse possession. This suit was filed in 1987 i.e. within 12 years from the date of order passed by the Settlement Officer. The Defendant Muslim Ali in his evidence stated that after institution of the title suit, he came to know that the Plaintiff-Appellant is the owner of the suit land. He simply stated that he has never seen the Plaintiff ever visiting the suit land. There is not a single word in his evidence as to how his possession became hostile to that of the Plaintiff-Appellant. The Defendant asserted his possession on the suit land since 1963 and further stated that he had constructed a tin-roof house in 1970. According to him, it was a jungle land and he occupied after clearing the jungles. In fact from the evidence of Defendant-Respondent and other witnesses examined by him, I do not find any overt act from when his possession became hostile on that of the Plaintiff. Possession of any land by a person belonging to Anr. even beyond the period of 12 years cannot be construed as adverse to the exclusion of Ors. unless the basic requirement that the possession is hostile is proved. As discussed above, at least till 1977 the Defendant-Respondent did not lay any claim over the land on the basis of adverse possession when his name as tenant was cancelled by the Assistant Settlement Officer. He did not challenge the order before any competent forum. The suit has been filed in 1987 within 12 years from that date. Hence, it cannot be said that the title of the Plaintiff stood extinguished by operation of law. It appears that the learned 1st Appellate Court below misconstrued the provisions of Article 64 and 65 of the Limitation Act and proceeded on the wrong notion that Article 64 is applicable in the instant case. The question relating to tenancy was not raised during the course of argument. The questions formulated at the time of admission of this Second Appeal are answered accordingly.

In the result, the appeal is allowed. The judgment dated 30.8.1997 passed by the learned first appellate court is hereby set aside and the judgment dated 27.5.1994 passed by the learned trial court is confirmed with modifications. Title Suit No. 241 of is hereby decreed and the Plaintiff''s title over the suit land is declared. The Plaintiff is also declared entitled to recover khas possession by evicting the Defendant.