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High Court Of Calcutta
Sudhendu Nath Mallick
SURESH CHANDRA GHOSH - Appellant
Versus
RABINDRA NATH BISWAS - Respondent
S. A. 308 Of 1989
Decided On : 07/04/1997
LICENSEE IN POSSESSION - ADVERSE POSSESSION - LIMITATION - EVIDENCE - STANDARD OF PROOF - ORDER 41 RULE 27 CPC - ADDITIONAL EVIDENCE - INTERPRETATION.
Fact of the Case:
Plaintiff sued for eviction of the defendant from the suit premises, alleging that the defendant was a licensee who had overstayed his welcome. The defendant claimed adverse possession, arguing that he had been in possession of the property since 1960 and that the suit was barred by limitation. The trial court dismissed the suit, finding that the defendant was in possession as a trespasser since 1960 and that the suit was barred by limitation. The First Appeal Court reversed the trial court's decision, holding that the defendant was a licensee in possession since 1967 and that the suit was not barred by limitation. The defendant appealed to the High Court.
Finding of the Court:
The High Court held that the First Appeal Court's decision was correct. The court found that the defendant's story of adverse possession was not credible and that the evidence supported the plaintiff's claim that the defendant was a licensee. The court also found that the suit was not barred by limitation, as the defendant's possession as a licensee did not amount to adverse possession.
Issues: 1. Whether the defendant was a licensee or an adverse possessor. 2. Whether the suit was barred by limitation.
Ratio Decidendi: 1. The court held that the defendant's story of adverse possession was not credible, as it was contradicted by the evidence and by the defendant's own admission that he had obtained a loan from the plaintiff's predecessor-in-title. The court also found that the defendant's possession was not open and notorious, as he had not paid rent or taxes on the property and had not made any improvements to it. 2. The court held that the suit was not barred by limitation, as the defendant's possession as a licensee did not amount to adverse possession. The court noted that the defendant had acknowledged the plaintiff's title to the property by obtaining a loan from the plaintiff's predecessor-in-title and by agreeing to pay rent to the plaintiff.
Final Decision: The High Court dismissed the defendant's appeal and affirmed the First Appeal Court's decision.
( 1 ) THE instant second appeal at the instance of the defendant/appellant is directed against the Judgment and decree dated 19. 9. 87 passed by the learned Assistant District Judge, Second Court, Hooghly in title appeal No. 341 of 1978 whereby the appeal was allowed reversing the Judgment and decree of dismissal dated 18. 11. 78 passed by the learned Munsif, Second Court, Hooghly in title Suit No. 29 of 1977 renumbered as 127 of 1978 and a decree for eviction of the defendant/ appellant was passed in respect of the suit premises. It may be noted that the trial court dismissed the plaintiff /respondent's suit on the ground that the same was barred by limitation. Although the instant second appeal was admitted on the grounds Nos. 13 and 15 urged in the memo of appeal, the leaned counsel for the appellant was permitted to argue the appeal at the time of hearing also on the grounds taken in the memo of appeal being Nos. 1, 3, 4, 8, 9, 10, 11. 17 and 20. The appellant has also challenged the order No. 64 passed by the First Appeal Court under No. 64 dated 23. 7. 87 allowing the plaintiff/respondent's application under Order 41 Rule 27 CPC. By the said order the plaintiff/respondent was directed to take proper steps for adducing additional evidence before the said court as indicated in the said order. The additional evidence was adduced by the plaintiff/respondent on 11. 8. 87. One witness was examined and cross-examined and documents were marked exhibits. It may also be noted that the trial court's Judgment and decree were set aside earlier by the First Appeal Court by Its order dated 11. 5. 81 in title appeal No. 341 of 1978 whereby the suit was remitted back to the trial court with a direction to allow the plaintiff to adduce further documentary evidence. This High Court set aside the said order of remand by its order dated 19. 11. 86 and directed the First Appeal Court to decide the appeal and the application under Order 41 Rule 27 of the Civil Procedure Code, de novo and further directed the Lower Appellant Court to examine and consider all the maferials on record. It appears from the Lawer Appellate Court's record that thereafter the title appeal was heard de novo as per directions of this High Court as noted above and the impugned Judgment and decree was passed.
( 2 ) BEFORE considering the merits of the instant second appeal it would be helpful to note the admitted and undisputed facts on record:-I) The disputed property in respect of which decree for eviction of the defendant appeal was prayed for in the aforesaid title suit consist of three brick build rooms of which one is a tin shed and the other two are tile sheds along with varandah and privy appertaining to lay out plot No. 12 of R. S. Plot No. 322 of Khatian No. 359 of Mouza Balagar, J. L. No. 8, P. S. Chinsurah District Hooghly as described in the schedule of the plaint. The aforesaid entire plot No. 322 belonged to on Ejad Box duly recorded in the R. S. Khatian as per ext. 3. II) Ejad Box while in possession of the same sold the disputed properly consisting of 3 (three) Cottah and 4 (four) Chittack of land out of the said property to one Jones Chandra Biswas by a registered deed of sale dated 23. 3. 59. III) It is also admitted that after purchase of the disputed land the said Janak Chandra Biswas on taking loan from the Government constructed a small room on the disputed land by the end of 1959 and started living there.
( 3 ) THE plaintiff/respondent's case is that Janak continued to stay in the suit premises along with other members of his family till 1967. Sometime in 1967 the said Janak left for Godagrir Char in P. S. Jalangi District Murshidabad leaving the suit property under the care and protection of his neighbour and cousin-brother Santosh Sarkar. At that lime the defendant was living in his father-in-law, house closed to the suit property as the tile shed in which he was living there got damaged he requested Santosh Sarkar to permit
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