Back
Gauhati High Court
A.K.GOSWAMI, J.
Suren Saikia - Appellant
Versus
Kunja Behari Choudhury - Respondent
RSA 14/2003
Decided On : 29-04-2015
Limitation Act - Section 65 - Land dispute - Eviction - Praying for consequential relief of recovery of possession - Adverse possession - Plaintiff is that the father of defendant namely, who was of suit land had sold the suit land to plaintiff by a registered sale deed for valuable consideration and delivered Khas possession to plaintiff and thereafter he had erected bamboo fencing on suit land and constructed a Dui-chalia thatched house, wherein one of his employees was residing - As defendant had interfered with the peaceful possession of plaintiff, suit was filed by plaintiff claiming right, title and interest in respect of suit land and praying for consequential relief of recovery of possession by evicting the defendant with his men and materials etc - Erection of bamboo fencing and construction of Dui-chalia house by the plaintiff was also denied by the defendant - It was pleaded that the plaintiff never took possession of suit land and father of the defendant continued to possess land till, i.e., till his death, openly, continuously and with the knowledge of plaintiff and that plaintiff never objected to possession of the land by father of defendant and therefore, title of the plaintiff suit land became extinguished by adverse possession of father of defendant – Held, plaintiff establishes his title, burden will shift to the defendant to prove his adverse possession - When execution of the sale deed is already admitted by defendant, the burden heavily shifts to the defendant to establish his plea of adverse possession. D.W. 1, i.e., defendant, admittedly did not have any knowledge with regard to the delivery of possession, he being a minor boy of two years old at the relevant point of time - No such statements were made in the written statement. The trial Court noted that there was no dispute between the plaintiff and father of the defendant during the lifetime of defendants father - Trial Court also noted that D.W. 1 and D.W. 2 did not have personal knowledge regarding purchase of the suit land by the plaintiff and the consequential delivery of possession by the father of the defendant - Suit land is a vacant land and the trial Court also recorded the finding that D.W. 1 and D.W. 2 had stated that same was bounded by bamboo fencing for a long time - It was held that suit land could not have been fenced by defendant long time back and that only conclusion that could be arrived at was that it was the plaintiff who had fenced the suit land - Most significantly, both courts below have held that even assuming that there was some possession, there is no material on record to hold when the defendant denied the title of plaintiff over the suit land and started possession adverse to the interest of the plaintiff - Appeal is dismissed
1. Heard Mr. P. Mahanta, learned counsel for the appellant/defendant. Also heard Ms. B. Choudhury, learned counsel appearing for the respondent/plaintiff.
2. This appeal is presented against the judgment and decree dated 04.10.2002 passed by the learned Civil Judge, Senior Division, Sonitpur, Tezpur, in Title Appeal No. 13/1998, dismissing the appellant/defendant's appeal and upholding the judgment and decree dated 07.03.1998 passed by the learned Civil Court, Junior Division No. 1, in Title Suit No. 1/95.
3. The Second Appeal was admitted to be heard by an order dated 02.04.2003 on the following substantial question of law:
"Whether on the strength of the Sale Deed dated 08.01.1959 (Deed No. 62/1959), the respondent came into possession and continued to possess the same till 25.11.94 vis-à-vis the claim of the appellant of acquiring title by adverse possession?"
4. At the very outset, the relevant facts may, briefly, be noticed.
5. The case projected by the plaintiff is that the father of the defendant, namely, Indibar Nandi (since deceased), who was the Pattadar of the suit land, had sold the suit land to the plaintiff on 08.01.1959 by a registered sale deed for valuable consideration and delivered Khas possession to the plaintiff and, thereafter, he had erected bamboo fencing on the suit land and constructed a Dui-chalia thatched house, wherein one of his employees was residing. While he was possessing the land, the defendant forcefully occupied the suit land on 25.11.1994 and constructed Pucca ring-well in the suit land. As the defendant had interfered with the peaceful possession of the plaintiff, the suit was filed by the plaintiff claiming right, title and interest in respect of the suit land and praying for consequential relief of recovery of possession by evicting the defendant with his men and materials etc. The suit land measured 2 Kathas under Dag No. 63 of Periodic Patta No. 9, situated at Mazgaon, Mouza-Bhairabpad, District-Sonitpur, Assam.
6. Though in the written statement the defendant admitted the sale of the suit land to the plaintiff on 08.01.1959 by registered sale deed, he stated that there was no delivery of possession to the plaintiff. The erection of bamboo fencing and construction of Dui-chalia house by the plaintiff was also denied by the defendant. It was pleaded that the plaintiff never took possession of the suit land and the father of the defendant continued to possess the land till 1974, i.e., till his death, openly, continuously and with the knowledge of the plaintiff and that the plaintiff never objected to the possession of the land by the father of the defendant and, therefore, the title of the plaintiff to the suit land became extinguished by adverse possession of the father of the defendant. After the death of the defendant's father, his legal representatives, including the defendant, continued their open, hostile and continuous possession over the suit land against the interest of the plaintiff and, therefore, mutation of the name of the plaintiff over the suit land and payment of land revenue will be of no aid to the plaintiff as his title had been extinguished. It is also stated that the suit land fell in his share on the basis of a family arrangement made in the year 1989 and he was in exclusive possession of the suit land by right of adverse possession. It is further stated that the father of the defendant had constructed a two-roomed cow-shed over the suit land in the year about 1960 and one cowman used to reside in the house. Subsequently, the defendant had set up a ring factory in the suit land and there was also a ring-well.
7. Mr. Mahanta has submitted that the plaintiff could not prove delivery of possession of the land consequent upon sale to him vide Ext.-1, Sale Deed, in respect of the suit land, but, on the contrary, the defendant had laid cogent and reliable evidence to show that the father of the defendant, and subsequent after his death, the defendant was i
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
