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2009 Supreme(Gau) 40
IN THE HIGH COURT OF GAUHATI
P.K. Musahary, J.
Raju Saha and Ors. - Appellants
Vs.
On the death of Sambhunath his Legal heirs, Smt. S. Dev Nath and Ors. – Respondent
Decided On: 20.01.2009
The main legal point established in the judgment is that adverse possession requires hostile possession in denial of the true owner's title, and the possession must be adequate in continuity, publicity, and extent to show its adverseness. Additionally, adverse possession springs into action by default or inaction of the owner, and inaction for a period of twelve years is treated as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.
Headnote:
Adverse Possession - Property Dispute - Code of Civil Procedure, 1908 - Section 100, Transfer of Property Act - Section 54, 8 - [Section 100 of Code of Civil Procedure, 1908, Section 54, 8 of Transfer of Property Act] - The court discussed the issue of adverse possession and its implications on the property dispute. It referred to legal provisions such as Section 54 and 8 of the Transfer of Property Act and interpreted the concept of adverse possession based on precedents. The court concluded that the respondent's continuous and uninterrupted possession of the land since 1964 had become hostile to the right, title, and interest of the true owner, and thus, the claim of adverse possession had ripened.
Fact of the Case:
The plaintiff filed a suit for permanent injunction restraining the defendants from disturbing her possession over a land, claiming adverse possession. The defendants contested the suit and set up a counter claim of right, title, and interest over the land.
Finding of the Court:
The court found that the plaintiff's continuous and uninterrupted possession of the land since 1964 had become hostile to the right, title, and interest of the true owner, and thus, the claim of adverse possession had ripened. The court dismissed the appeal.
Issues: The main issue was whether the plaintiff's claim of adverse possession could be sustained and whether her possession had become hostile to the true owner's rights. The court also discussed the legality of deciding an issue not pleaded in the plaint and objection to the counter claim.
Ratio Decidendi: The court held that adverse possession means hostile possession in denial of the true owner's title, and the possession must be adequate in continuity, publicity, and extent to show its adverseness. It also emphasized that adverse possession springs into action by default or inaction of the owner, and inaction for a period of twelve years is treated as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.
Final Decision: The court dismissed the appeal, concluding that the respondent's claim of adverse possession had ripened and her possession had become hostile to the true owner's rights.
P.K. Musahary, J.
1. Hearing and disposal of this Appeal earlier without formulating any substantial question of law was faulted seriously for, it amounted to assumption of jurisdiction by this Court under Section 100 of Code of Civil Procedure, 1908. Granting a leave and setting aside the judgment and order dated 6.8.2004, the hon'ble Apex Court remitted back the case for disposal afresh in accordance with law providing a liberty to this Court to frame the substantial question of law. On perusal of record, it is found that this Court, in fact, at the time of admission of the Appeal, formulated the following substantial question of law on 24.9.1997:
(i) Whether the First Appellate court acted illegally in holding that the respondent claimed adverse possession by filing written objection to the counter claim notwithstanding admission of execution and registration of sale deed in respect of the land by the original pattadars in favour of the deceased defendant?
After remand, this Court reformulated the substantial question of law as follows:
Whether the plaintiff's claim of right of adverse possession can be sustained and his long continuous and uninterrupted possession becomes hostile to the right, title and interest of the true owner in view of the plea taken by the plaintiff in the written statement filed against the counter claim to the effect that they are in continuous and uninterrupted possession of the suit land and whether such a plea is sufficient to hold that the claim of the plaintiff has ripen by the right of adverse possession?
2. The brief facts of the instant case are as follows:
The plaintiff, one Smt. Sailabala Nath instituted Title Suit No. 82/84 in the court of the Munsiff No. 1, Tezpur, praying for a decree for permanent injunction restraining the defendants in the suit from disturbing the peaceful possession of the plaintiff over the suit land. According to the plaintiff, she had purchased possessory rights over the suit land from one, Haji Monruj AH and according to the plaintiff, she had remained in possession of the suit land all along on payment of rent to the owner. On 9.8.1984, the plaintiff received a notice from the defendants that they had purchased the suit land from the original owner and, therefore, the plaintiff was required to vacate the suit land on or before 27.8.1984. Accordingly, the suit in question was filed claiming the reliefs already noticed. The defendants contested the suit by filing a written statement denying the claim made by the plaintiff. In the written statement filed, the defendants set up a counter claim of right, title and interest over the suit land by purchase and a right to have vacant possession of the same land by evicting the plaintiff therefrom.
3. Based on the plaint, written statement, counter claim and objection to counter claim, the learned trial court framed the following issues:
(1) Whether the suit is maintainable in the present form?
(2) Whether there is any cause,of action for the suit?
(3) Whether the plaintiff has not signed and verified the plaint?
(4) Whether the suit is bad for non-joinder of necessary parties and mis-joinder of necessary parties?
(5) Whether the plaintiff or defendant No. 1 has right, title and interest in the suit land?
(6) Whether the plaintiff is entitled to the decree as prayed for?
(7) Whether the defendant No. 1 is entitled to recovery of possession of the suit land by delivery or has possession and eviction of the plaintiff therefrom on the counter claimed?
(8) To what other relief are the parties entitled?
The issue Nos. 1, 2, 3, 4, 6 and 8 were decided in favour of the plaintiff. The learned trial court decided the issue No. 5, partly in favour of the plaintiff in respect of possession over the suit land and partly in favour of the defendants in respect of right and interest over the suit land. The issue No. 7 is exclusively pertaining to counter claim which the learned trial court decided against the defendants. The suit was accordin
