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2002 Supreme(Cal) 228
IN THE HIGH COURT AT CALCUTTA
Arun Kumar Mitra, J.
Smt. Suchitra Mondal & Ors. - Appellants
Versus
M/s. Shyamashree Land Development Society & Ors. - Respondents
S. A. No. 262 of 1995
Decided on : April 4, 2002
For the Appellants: Mr. Jyatirmoy Bhattacharya, Bimal Kumar Chakraborty and Hiranmoy Bhattacharya.
For the Respondents: Mr. B. K. Bachawat, S. Roy Chowdhury, P. Chatterjee, A. K. Roy and Miss. Sudipa Roy.
A squatter or trespasser, who does not set up a claim of right cannot plead adverse possession and no length of mere squatting possession is a good defense in a suit for possession by the true owner.
Headnote:
ADVERSE POSSESSION - OWNERSHIP - TRANSFER OF PROPERTY ACT, SECTION 52 - URBAN LAND CEILING ACT - INJUNCTION - SUMMARY SUIT FOR DECLARATION AND PERMANENT INJUNCTION - ADVERSE POSSESSION PLEADED BY PLAINTIFFS - PURCHASE OF SUIT PROPERTY BY DEFENDANT DURING PENDENCY OF EARLIER SUIT - APPLICABILITY OF SECTION 52 OF TRANSFER OF PROPERTY ACT - PLAINTIFFS' CLAIM OF ADVERSE POSSESSION NOT PROVED - PURCHASE OF SUIT PROPERTY BY DEFENDANT NOT HIT BY SECTION 52 OF TRANSFER OF PROPERTY ACT - PROPERTY NOT HIT BY URBAN LAND CEILING ACT - NO PRAYER FOR ANALOGOUS HEARING OF TWO SUITS - APPEAL DISMISSED.
Fact of the Case:
Plaintiffs filed a suit for declaration and permanent injunction, claiming ownership of the suit property by way of adverse possession. The defendant contested the suit, claiming that they had purchased the property from the real owners and were in possession of the same. Both the trial court and the appellate court dismissed the suit.
Finding of the Court:
The High Court held that the plaintiffs could not prove their claim of adverse possession, and that the purchase of the suit property by the defendant was not hit by Section 52 of the Transfer of Property Act. The Court also held that the property was not hit by the Urban Land Ceiling Act, and that there was no prayer for analogous hearing of the two suits.
Issues: 1. Whether the plaintiffs had proved their claim of adverse possession over the suit property? 2. Whether the purchase of the suit property by the defendant was hit by Section 52 of the Transfer of Property Act? 3. Whether the property was hit by the Urban Land Ceiling Act? 4. Whether there was a prayer for analogous hearing of the two suits?
Ratio Decidendi: 1. The Court held that the plaintiffs could not prove their claim of adverse possession, as they had failed to establish that they had been possessing the suit property for more than 12 years exclusively and in holding and in ouster of the real owner. 2. The Court held that the purchase of the suit property by the defendant was not hit by Section 52 of the Transfer of Property Act, as the purchase was not made during the pendency of the instant suit, but during the pendency of an earlier suit which concerned only a small house in the suit property. 3. The Court held that the property was not hit by the Urban Land Ceiling Act, as there was no pleading or evidence to that effect. 4. The Court held that there was no prayer for analogous hearing of the two suits, and that the trial court could not give suo moto direction for hearing of two suits analogously.
Final Decision: The appeal was dismissed, and the judgment of the trial court and the appellate court below were affirmed.
The judgment of the Court was as follows:-
This second appeal has been preferred challenging the judgment and decree dated 4.8.94 and 12.8.94 respectively passed by the learned Assistant District Judge at Alipore in Title Appeal No. 213/1993 affirming the judgment and decree dated 31.3.93 and 19.4.93 respectively passed by Shri G. Ghosh Mullick, learned Munsif First Court at Alipore in Title Suit No. 162/1990.
2. The instant suit being Title Suit No. 162/1990 is a suit for declaration and for permanent injunction.
3. The plaint contains the following prayers:-
(a) A decree for declaration that the plaintiffs are the absolute owners, of the suit property by virtue of their possession and occupation of the suit property. But, the law of adverse possession and occupation more than 12 years without anybody's obstruction, objection and interruption.
(b) A decree for declaration that the defendants have got no right to obstruct and also to interfere in respect of the plaintiff's peaceful possession and occupation in connection with the suit property.
(c) A decree for permanent injunction restraining the defendants and its members and their men and agents from disturbing and interfering for the possession of the plaintiff in the suit property in any manner whatsoever.
(d) Costs.
(e) Any other or for relief or reliefs, the plaintiffs may be found entitled to in law and in equity.
4. The case as has been made out in the plaint is as follows:-
Originally, the recorded owners of the suit property were (1) Debprasanna Ghosh, (2) Shuvaprasanna Ghosh and (3) Taraprasanna Ghosh who were the joint owners of the property. Thereafter, by virtue of a decree of a partition amongst the above named three co-sharers the suit property was allotted in the share of said Taraprasanna.
5. One Sreenath Mondal the father of the plaintiffs Nos. 2 and 3 and the husband of the plaintiff No.1 migrated to West Bengal in the year 1946 along with his family members as refugees. At that time, the suit property was lying as a fallow land as well as vacant and the friends and relatives of Sreenath Mondal who were living in the adjoining squatters colony of the suit property brought Sreenath Mondal in the property and the said Sreenath Mondal occupied the entire suit property including the pucca structure standing and lying therein and settled himself there with is family members and continue to live there, within the knowledge openly or everybody including the Landlord of the property.
6. As has been made out in the plaint Sreenath Mondal started business of a milk man by keeping and maintaining cows and buffaloes as the owners of the suit property and also inducted several tenants in the suit property and used to collect rent from them peacefully without any hindrance from anybody including the areas of heirs of said Taraprasanna Ghosh. Said Sreenath Mondal being in occupation of the property died intestate on 29.7.79 living behind him surviving alone his heirs that is the plaintiffs and the plaintiffs started enjoying the property as before and at last in the year 1990 Durgagati Bhattacharya and Others filed suit for eviction as owner of the suit property being title suit No. 159/80 in the Court of the learned First Munsif at Alipore against the plaintiffs alleging as trespassers which is still pending. According to the plaintiff said Durgagati Bhattacharya and Others admitted occupation of the suit property by Sreenath Mondal since 1968 though Sreenath Mondal and his family was in occupation of the suit property since 1956.
7. Said Durgagati Bhattacharya and Others claimed that they had purchased 11 bighas of land from the heirs of late Taraprasanna Ghosh in the year 1963 along with the land occupied by Sreenath Mondal, thereafter, occupied by his heirs.
8. It has also been averred in the plaint that the said title suit No. 159/80 filed by Durgagati Bhattacharya and Others was not in respect of the entire suit property but only in respect of one room though the plainti
