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High Court Of Calcutta
P.S. Datta, J.
Kallol Basu - Appellants
Vs
Raj Kumar Das Respondents
Decided on: Dec 07, 2009
ADVERSE POSSESSION - ENCROACHMENT - THIKA TENANCY - Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at last to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion that a party is in possession for "several twelve years" is not sufficient. The encroachment of the suit land by the appellants is without any foundation of fact or evidence on record and the learned Judge has not assigned any reason as to why in the context of the learned trial Court's finding based on evidence that there has been no partition between the eastern and the western portion by demarcation of any wall he could disagree with the learned trial Court's finding.
Fact of the Case:
The plaintiff instituted a suit for a decree for khas possession of the aforesaid area of the land and for certain other consequential reliefs. The defendants are Kamal Bose, Kallol Bose, Biswanath Ghosh and M/s. Alfa Automobile, a partnership firm of which Kallol Bose and Biswanath Ghosh were partners. Their case is that they obtained thika tenancy of a land measuring more or less 4 cottahs 6 chittacks at 69 Hazra Road with wall in three sides having its opening in the south at Sevak Baidya Street from Hrishikesh Chatterjee at a monthly rental of Rs. 70 per month in the name of M/s. Alfa Motors and thereafter constructed sheds at their own cost and started business thereon.
Finding of the Court:
The finding of the learned Court of appeal below that there has been encroachment of the suit land by the appellants is without any foundation of fact or evidence on record and the learned Judge has not assigned any reason as to why in the context of the learned trial Court's finding based on evidence that there has been no partition between the eastern and the western portion by demarcation of any wall he could disagree with the learned trial Court's finding.
Issues: Whether the learned Court of Appeal below committed error in holding that the defendants have encroached upon the land of the plaintiffs, being the suit land as described in the plaint. Whether the learned Court of Appeal below committed error in law in not holding that the defendants have perfected title in respect of the alleged encroached portion by virtue of adverse possession. Whether the learned Court of Appeal below committed wrong in law in not holding that the plea of encroachment cannot be adjudicated upon without appointing a survey passed commissioner.
Ratio Decidendi: Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at last to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion that a party is in possession for "several twelve years" is not sufficient.
Final Decision: The appeal is allowed but without costs. The judgment and decree of the learned Court of Appeal below is set aside. Within a month from the date of the receipt of a copy of this judgment the learned trial Court will appoint an Advocate Commissioner for identification of the suit property and after obtaining a report from the Advocate Commissioner and receiving such evidence as might be necessary only with respect to the report of the Advocate Commissioner will hear arguments and deliver judgment in accordance with the law deciding the question of encroachment. The plea of adverse possession has failed and shall not be allowed to re-agitate.
1. THIS second appeal is of the defendant and is directed against the judgment and decree dated 12th June, 1998 passed in Title Appeal No. 48 of 1996 by the learned Additional District Judge, 7th Court, Alipore decreeing the suit after reversal of the judgment and decree of dismissal dated 22nd April, 1995 passed by the learned Civil Judge (Senior Division), 3rd Court at Alipore in Title Suit No.106 of 1983. The facts are these:
2. THE premises No. 69, Hazra Road measuring about of 11 cottahs 10 chittacks 4 sq. ft. belonged to Corporation of Calcutta which transferred the same to Dr. Monmotha Nath Chatterjee by a deed of conveyance on 21st December, 1911. Monmotha Nath Chatterjee died on 25th April, 1939 leaving his will and testament dated 23rd April, 1939. His heirs are Krishna Das (son), Hrishikesh (son), Monindra Lal Mukherjee (predeceased daughter's son) and two other daughters,namely, Giribala and Shyama Sundari. Krishna Das, Hrishikesh and Monindra Lal were made executors of the will and they obtained probate from the High Court of the will on 14th August, 1939. Giribala Devi and Shyama Sundari Devi filed a suit being No. 996 of 1943 for removal of executors and for appointment of the Administrator General of Bengal as receiver. On 13th August, 1943 the High Court appointed the Administrator General of Bengal as receiver in respect of the properties left by the testator including the properties being 69, Hazra Road. Then, Krishna and Hrishikesh filed a suit being No. 1198 of 1943 in the High Court against Monindra for administration of properties and for construction of the will. On 15th May, 1945 the High Court after consolidation of the above two suits passed a preliminary decree for partition and directed sale of the residuary estate left by the testator. On 15th May, 1946 a preliminary decree was passed on compromise and one Mr. Beni Madhav Chatterjee, Advocate of this Court was appointed Commissioner for partition with powers upon him to make partition and division of the residuary estate into six equal parts and to sell the same by public auction to the highest bidder. Then on 6th February, 1948 an order was passed further by the High Court to the effect that the executors to the will and the Commissioner so appointed by the Court would jointly execute and register sale deeds in respect of the immovable properties, that is residuary estate in terms of the decree. Then an auction sale was conducted pursuant to which the original plaintiff of this suit Surya Sekhar Chatterjee, his brother Purnendu Sekhar Chatterjee and Chandra Sekhar Chatterjee purchased the entire eastern portion of the premises No.69.Hazra Road, measuring 4 cottahs 13 chittacks and 20 sq.ft. which was referred to in the sale deed as Lot-B.Chandra Sekhar died on 15th June, 1949 leaving widow Provati and a minor son Shasanka Sekhar. A deed of conveyance in respect of the eastern portion measuring 4 cottahs 13 chittacks 20 sq.ft. of land was executed by the executors of the will and the Advocate commissioner in favour of Surya Sekhar Chatterjee, Purnendu Chatterjee, Provati Devi, for self and minor son Shasanka Sekhar Chatterjee on 9th June, 1950. Then this Chatterjee family effected partition of their properties including this property by registered deed of partition on 28th January, 1957 by virtue of which the entire 4 cottahs 13 chittacks 20 sq.ft. which is Lot-B was allotted to Surya Sekhar alone. Other non-suit properties were allotted to other co-sharers.Now, Surya Sekhar raised construction covering an area of 2 cottahs 12 chittacks 24 sq. ft. within his purchased land and within the partitioned land measuring 4 cottahs 13 chittacks 20 sq. ft, a portion thereof measuring 2 cottahs 41 sq.ft. out of said 4 cottachs 13 chittacks 20 sq.ft. was left vacant in the southern part of the said eastern portion of the said premises, in the northern part of the eastern portion measuring 2 cottahs 12 chittacks 24 sq. ft. where constructions were rai
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