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High Court Of Calcutta
N. C. Mukherji, Sudhindra Mohan Guha
KHATUN BIBI - Appellant
Versus
MONI MALA MITRA - Respondent
S. M. A. 69 Of 1969
Decided On : 07/31/1979
PARTITION - Adverse Possession - Act-Section Referred: Section 151 of the C. P. Code - SUMMARY: Plaintiff filed a suit for partition and recovery of possession of suit lands, claiming ownership through purchase from the heirs of Abdul Hakim, who had purchased the lands at an auction sale. The defendant claimed title by adverse possession and challenged the identity of the suit plots with those mentioned in the sale certificate and kobala of Abdul Hakim. The trial court dismissed the suit, finding that the plaintiff had failed to establish the identity of the suit plots and had not exercised any act of possession within 12 years prior to the suit. The Appellate Court set aside the dismissal and remanded the case for fresh trial, directing the plaintiff to pray for local investigation for relayment of the lands in the sale certificate and kobala with the suit plots.
Fact of the Case:
Plaintiff filed a suit for partition and recovery of possession of suit lands, claiming ownership through purchase from the heirs of Abdul Hakim, who had purchased the lands at an auction sale. The defendant claimed title by adverse possession and challenged the identity of the suit plots with those mentioned in the sale certificate and kobala of Abdul Hakim.
Finding of the Court:
The trial court dismissed the suit, finding that the plaintiff had failed to establish the identity of the suit plots and had not exercised any act of possession within 12 years prior to the suit. The Appellate Court set aside the dismissal and remanded the case for fresh trial, directing the plaintiff to pray for local investigation for relayment of the lands in the sale certificate and kobala with the suit plots.
Issues: 1. Whether the plaintiff had established the identity of the suit plots with those mentioned in the sale certificate and kobala of Abdul Hakim? 2. Whether the plaintiff had exercised any act of possession within 12 years prior to the suit? 3. Whether the defendant had acquired title by adverse possession?
Ratio Decidendi: 1. The Appellate Court found that the trial court had erred in not directing local investigation for relayment of the lands in the sale certificate and kobala with the suit plots. 2. The Appellate Court held that the plaintiff's failure to apply for local investigation in the trial court was not sufficient reason for the Appellate Court to refuse to order such investigation, especially considering that the plaintiff had labored under a misconception of law regarding the onus of proof for relayment. 3. The Appellate Court held that the trial court had erred in dismissing the suit without considering the possibility of adverse possession by the defendant.
Final Decision: The Appellate Court's order remanding the case for fresh trial was confirmed, with the modification that the cost for local investigation would not be cost in the cause.
( 1 ) THIS appeal arises out of the judgment and decree passed by Shri Satyanarayan Bhattacherjee, the learned Additional District Judge, 9th Court, Alipore, reversing those of dismissal passed by Shri P. Dulta, the learned Subordinate Judge, 4th Court at Alipore and remanding the case for fresh trial after giving the plaintiff appellant an opportunity for local investigation for relayment of her deeds of title for establishing identity with the suit plots.
( 2 ) THE plaintiff commenced the suit for partition and for recovery of possession and mesne profits on the following averments:--One Abdul Hakim auction purchased 8 annas share of the suit lands being C. S. Plots Nos. 391 and 392 appertaining to khatian No. 469 of mouza Sultanpur P. S. Dum Dum in Execution Case No. 516 of 1921 of the Court of Munsif, Sealdah and got the sale certificate. The suit lands were said to be Items Nos. 2 and 8 at the sale certificate. The remaining 8 annas share of those lands belonged to one Elejan Bibi.
( 3 ) ABDUL Hakim sold his 8 annas share to Sukurjan Bibi under a registered sale deed dated 25-6-1923 along with other lands and put her in possession. Sukurjan gave 7 annas share to her daughter Kulsun Bibi and as such she had 1 anna share. The shares of Sukurjan, Kulsun Bibi and Elejan Bibi were rightly recorded in the District Settlement Khatian. On the death of Sukurjan her only daughter Kulsun Bibi inherited her 1 anna share and became owner to the extent of 8 annas share and then on the death of Kulsun Bibi her husband Sarup Mondal and son Moiman Sultan inherited the said 8 annas share. The 8 annas share of Elejan Bibi was purchased by one Mihilal Band and the defendant was subsequent transferee from him. Sarup Mondal and his son Moiman Sultan sold their 8 annas share under two registered kobalas dated 2-1-59 and 4-2-59 to the present plaintiff and put her in possession. But in the recent revisional settlement the defendant got the entire suit lands recorded in his name and unlawfully dispossessed the plaintiff in March 1959. Hence, the suit
( 4 ) THE suit was contested by the defendant on a written statement denying all the material allegations in the plaint. The defendant claimed that his predecessor purchased 8 annas share of Abdul Hakim under a kobala dated 15-8-1928 and he had taken settlement of the remaining 8 annas share from Elejan Bibi in 1932. The defendant also claimed to have acquired right, title and interest to the extent of 8 annas share by adverse possession. The defendant also challenged the identity of the two plots in suit with the Items Nos. 2 and 8 of the sale certificate (Ext. 1} and the lands in the kobala (Ext. 2 ).
( 5 ) IN spite of the objection regarding the identity raised by the defendant the plaintiff did not consider it advisable to pray for the appointment of a commissioner for local investigation. It transpires from the judgment of the trial Court that even at the time of hearing a suggestion for local investigation was made by the Court but the plaintiffs Advocate asserted that the onus for local investigation was upon the defendant, because the District Settlement Khatian was in favour of the plaintiff.
( 6 ) SO, on comparing the boundaries of the lands described in the sale certificate and the sale deeds Exts. 1 and 2 and the plots in suit the learned trial Judge was of the view that the identity of the two suit plots being plots Nos. 391 and 392 with the sale certificate, Ext. 1 and the kobala of Abdul Hakim Ext. 2 could not be established. It was further held by the learned trial Judge that the plaintiff's predecessor-in-interest had never exercised any act of possession and the plaintiff also had not exercised any act of possession at any time within 12 years prior to the suit. The defendant was found to have acquired title by adverse possession. The plaintiffs suit was accordingly dismissed.
( 7 ) THE plaintiff then came up in appeal before the District Judge.
( 8 )
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