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High Court of Calcutta
Tarun Kumar Gupta, J.
M/S Eastern Coalfields Ltd. – Appellant
Versus
Falguni Dasgupta – Respondent
S.A. No.79 of 2011
Decided on : July 24, 2012
ADVERSE POSSESSION - EXCHANGE OF PROPERTY - COAL MINES (NOTIFICATION) ACT, 1973 - Adverse possession requires continuous, public, and extensive possession. The starting point of limitation must be shown. The court held that the plaintiffs did not plead or prove adverse possession, and thus could not acquire title to the property in question.
Fact of the Case:
The plaintiffs filed a suit for declaration and mandatory injunction, claiming that their father purchased 'A' schedule property from Bengal Coal Company Ltd. in 1971 and came into possession of the same in 1971. The defendant company proposed to hand over the 'B' schedule property to their father in exchange for the 'A' schedule property. The plaintiffs' father delivered possession of the 'A' schedule property and came into possession of the 'B' schedule property, but the deed of exchange was not executed despite repeated requests. The plaintiffs' father died in 1979, and the plaintiffs continued to possess the 'B' schedule property as his heirs. The plaintiffs filed a suit for declaration and mandatory injunction after learning about the non-execution of the deed of exchange.
Finding of the Court:
The court held that the plaintiffs failed to produce any registered document to show that the 'A' schedule property was purchased by their father from Bengal Coal Company Ltd. or that they got possession of the same, or that the father of the plaintiff got the 'B' schedule property in exchange for the 'A' schedule property from Eastern Coal Fields Ltd. (defendant company) on the strength of any registered deed of exchange or got possession of the 'B' schedule property from said company. The court also held that the plaintiffs did not plead or prove adverse possession, and thus could not acquire title to the property in question.
Issues: 1. Whether the suit was barred by Order 23 Rule 1(4) of the Code of Civil Procedure? 2. Whether the plaintiffs acquired the property by adverse possession?
Ratio Decidendi: 1. The court held that the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure cannot be applied in this case in the absence of evidence that the later suit was filed only after the withdrawal of the former suit. 2. The court held that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. In the case in hand, admittedly there was no pleading whatsoever claiming title to the suit property by way of adverse possession not to speak of giving any particular about the commencement of said possession or even any assertion regarding continuous possession of the same openly and adversely.
Final Decision: The appeal is allowed by setting aside the impugned judgment and decree of the learned Lower Appellate Court and by restoring the judgment and decree of the learned Trial Court.
TARUN KUMAR GUPTA, J.
1. THIS appeal is directed against the judgment and the decree passed by Learned Additional District Judge, 2nd Court, Asansol in Title Appeal No. 8 of 2004 by setting aside the judgment and the decree passed by 71 of 2003 learned Civil Judge (Junior Division), 2nd Court, Asansol in Title Suit No.233 of 2000.
2. THE respondents / plaintiffs filed said suit for declaration and mandatory injunction alleging that their father Debkumar Dasgupta purchased 'A' schedule property from Bengal Coal Company Ltd. on 8th October, 1971 on payment of a valuable consideration (Rs.600/-) and came into possession of the same on the 22nd of October, 1971. It is further case that the defendant No.1 company proposed to hand over the 'B' schedule property to their father in exchange of the 'A' schedule property in terms of a deed of exchange. Though the plaintiffs' father delivered possession of the 'A' schedule property and came into possession of the 'B' schedule property, but deed of exchange was not executed in spite of repeated requests. The plaintiffs' father died on 21.09.1979 and the plaintiffs as his heirs and legal representatives continued to possess 'B' schedule property as of right. Only when the plaintiffs tried to sell out the 'B' schedule property they came to learn about said non-execution of deed of exchange by the defendant No.1 Company. As in spite of repeated requests and sending of lawyer's notice dated 12th of May, 2000 the defendant company did not execute the deed of exchange, the plaintiffs were compelled to file this suit for declaration and mandatory injunction.
3. THE defendants filed a written statement denying material allegations of the plaint and contending inter alia that the suit was not maintainable as plaintiffs already filed another suit being Title Suit No.33 of 1999 against these defendants on similar and identical grounds. It is a specific case that the alleged sale by M/s. Bengal Coal Company Ltd. to the plaintiffs' father on 08.10.1971 was illegal, inoperative and collusive and that both 'A' schedule and 'B' schedule properties were properties of Bengal Coal Company Ltd. and that after nationalization of Coal Mines said lands vested to the defendant No.1 Company as per provisions of Coal Mines (Notification) Act, 1973 free from all encumbrances. It is further case that the suit lands were all along under the occupation of Bengal Coal Company Ltd. and thereafter under the defendant Company and the plaintiffs or their predecessor in interest were never in possession of the same and the suit was liable to be dismissed with cost.
4. LEARNED Trial Court framed several issues and after contested hearing dismissed the suit by observing that plaintiffs failed to adduce any cogent evidence to establish either their title to 'A' schedule or to 'B' schedule property or their possession thereon.
5. THE plaintiffs preferred an appeal being Title Appeal No. 8 of 2004 which after contested hearing was allowed by allowing decree to the plaintiffs as prayed in the plaint. Learned Lower Appellate Court in the process observed that though there was no registered document regarding purchase of the 'A' schedule property by the plaintiffs' father from M/s. Bengal Coal Company Ltd. and though admittedly there was no registered deed of exchange executed by the defendant company allowing the exchange of 'A' schedule property with 'B' schedule property, but the plaintiffs and before plaintiffs their father were in possession of 'A' schedule property and thereafter 'B' schedule property and that in this way plaintiffs acquired a title to the 'B' schedule property by way of adverse possession.
6. AT the time of admission of this second appeal filed at the instance of the defendant Company the following substantial questions of law were framed :
(a) Whether the learned Court of appeal below was justified in holding that the suit out of which the present appeal arises was not hit by order 23 Rule 1(4) of the
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