IMPORTANT POINT
The central legal point established is that a claim of adverse possession requires the pleading and establishment of essential facts, and inconsistent or inadequate pleading does not warrant additional issues or a remand for fresh trial on adverse possession.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Being aggrieved by and dissatisfied with the judgment and decree dated 17th February, 2005 passed by the learned Additional District Judge First Track Court, Baruipur, in T.A. No. 278 of 1998, present second Appeal has been preferred. By the impugned judgment the Court below affirmed the judgment and decree dated 26th February, 1998 passed by Civil Judge (Junior Division) 2nd Court Bariupur in T.S. No. 139 of 1996.

2. Plaintiffs case in a nutshell is that the property mentioned in Schedule to the plaint belongs to the plaintiffs and their names have been correctly recorded in the R.S. record of Rights. On the basis of the partition effected amongst the co-sharers of the suit khatian, the present suit property has been exclusively allotted in the name of the plaintiffs. Plaintiffs further case is that they are in possession in the suit property by paying tax to the State of West Bengal .The defendants have no right, title interest in the suit property but they are trying to forcibly dispossess the plaintiff from a portion of the suit property, in collusion with the local antisocial elements. The cause of action of the suit arose on 30.08.1996 when the defendants along with their men and agents tried to forcibly dispossess the plaintiffs from a portion of the suit property. Accordingly plaintiffs have prayed for declaration of their right title interest in the suit property and for a decree of permanent injunction, restraining the defendants from disturbing plaintiffs possession in respect of the suit property.

3. The defendant no. 2 and 3 contested the suit by filing written statement wherein they have denied the averments made in the plaint. Defendants specific case is that they are in possession of the suit land since long by inheritance being the legal heirs of their father. According to the defendants, their predecessor in interest took settlement of the suit land from one Atul Krishna and after the abolition of zamindari system the defendants are paying tax to the Government. Defendants alleged that the entry in Record of Right is without any foundation and is not liable to be sustained.

4. On the basis of aforesaid pleading learned Trial court framed as many as five issues and after scanning evidence adduced by the parties, the learned Trial court decreed the suit in favour of the respondents/plaintiffs.

5. The Appellants/defendant no.2 and 3 assailed the said judgment and decree on the ground that the Trial court erred in not holding that the plaintiffs/respondents failed to prove the oral partition which was the basis of their title. However during pendency of the appeal the defendant/appellants made a prayer before the learned first appellate court seeking amendment in the written statement, in order to incorporate a further defence that the defendants have been possessing suit land for much more than 12 years to the knowledge of the plaintiffs and their predecessor-in-interest and by such possession they have perfected their title to the suit land by way of adverse possession. Learned court below allowed the said prayer for amendment during pendency of the appeal.

6. However when the first appeal came up for hearing, learned court below after hearing the contention of both the parties affirmed the judgment and decree passed by the Trial court and thereby dismissed the Appeal. The Division Bench of this court, while admitted the Second Appeal, by its order dated 18.07.2005, was pleased to frame following substantial questions of law.

I. The learned first appellate court below itself having allowed an application for amendment of written statement, thereby permitting the appellant to take additional plea of adverse possession, whether the said court committed substantial error of law in not permitting the appellant to adduce evidence in support of the additional plea.

II. Whether the learned court of appeal below committed substantial error of law in not remanding the matter back