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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
Dipti Das W/o. Late Sushil Kanta Das & Ors. - Appellants
Versus
On the Death of Sushil Bhusan Das His Legal Heirs Sri Priyabrata Dasson & Ors. - Respondents
RSA No. 193 of 2014
Decided On : 30-06-2022
Civil Procedure Code, 1908 – Section 100, 96 – Order XLI Rule 22 –Limitation Act, 1963 – Article 64, 65 – Appeal – Suit filed for declaration of right, title and interest of principal defendant for confirmation of possession as well as for declaration and cancellation of registered deeds of sale - Whether suit of plaintiff is barred by limitation - In eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non use of a property by owner even for a long time will not affect his title - But position will be alter when another person takes possession of property and asserts a right over it hostile to right of true owner - Concept of adverse possession means a hostile possession by clearly asserting hostile title in denial of title of true owner. (Para 16).
Findings of the Court :
Court, is not sufficient for raising a plea of adverse possession inasmuch as for raising a plea of adverse possession, there has to be pleadings to that effect that immovable property was possessed openly, hostilely and continuously by denying title of true owner. As no such pleadings have been asserted in written statement and it being a specific case of principal defendant Nos. 1 to 5 that their right over suit land is based upon title devolved upon them on basis of a partition, this Court is of opinion that possession of principal defendant Nos. 1 to 5 over suit land cannot be said to be adverse at time of filing present suit.
Result : Appeal Dismisses.
JUDGMENT :
Heard Mr. Sheeladitya, the learned counsel for the appellants and Ms. R. Choudhury, the learned counsel appearing on behalf of the respondents.
2. The present appeal was admitted on 23.07.2014 by framing one substantial question of law which reads as under:
3. As the substantial question of law so formulated relates to whether the suit of the plaintiff was barred by limitation, this Court for the purpose of the instant appeal finds it appropriate to deal with the relevant facts which are necessary for adjudication. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the trial court.
4. The plaintiffs filed a suit seeking declaration that the plaintiffs have land holder rights over the suit land which have been described in Schedule-2 (the suit land) of the plaint; for recovery of khas possession of the suit land by evicting the principal defendant Nos. 1 to 5, their men, servants and agents therefrom; for permanent injunction restraining the principal defendant Nos. 1 to 5 from dispossessing the plaintiffs from the suit land in any manner whatsoever after the plaintiffs got khas possession of the same as per the decree of the court; for costs etc. the suit was registered and numbered as Title Suit No.40/2005 and was initially filed before the Court of the Civil Judge (Senior Division), Karimganj. At this stage, it may be relevant to mention that on account of the change of the pecuniary jurisdiction of the courts, the said suit was transferred to the Court of the Munsiff No. 2, Karimganj and was reregistered as Title Suit No.79/2006.
5. The case of the plaintiffs in the said suit was that the Schedule-1 land which measures 1 kedar 2 powas 1 jasti and 2 pons originally belonged to one Sunil Kanta Das (since deceased) and the proforma defendant No.12, Shri Dwijendra Kumar Das. It has been claimed in the plaint that the proforma defendant No.12 got right over the Schedule-2 land which is the suit land. By a registered Kobala registered on 21.05.1986 as document No.2530, the said Dwijendra Kumar Das sold his half portion of the Schedule-2 land in favour of the plaintiff No. 1 and vide another Kobala registered on 21.05.1986 as document No.2531, the remaining half portion of the Schedule-2 land was transferred to the plaintiff No. 2.
6. After the said deeds of sale were executed and registered, a Title Suit was filed by the principal defendant Nos.1 to 5 before the Court of the Assistant District Judge, Karimganj which was registered and numbered as Title Suit No.5/1987 against the plaintiff Nos.1 & 2, proforma defendant No. 12 and one Sri Amarjit Das. In the said suit, the principal defendant Nos. 1 to 5 prayed for declaration of their title over the suit land; conformation of their possession therein, for cancellation of the registered Kobala Nos. 2530 & 2531, both dated 21.05.1986 and for other relief. The said suit, i.e., Title Suit No.5/1987 on account of the change of the pecuniary jurisdiction was transferred to the Court of the Civil Judge (Junior Division) No.1, Karimganj where the suit was reregistered and re-numbered as Title Suit No.147/1994. The said suit was dismissed by the judgment and decree dated 14.09.1995. The principal defendant Nos. 1 to 5 thereafter preferred an appeal before the Court of the Civil Judge (Senior Division), Karimganj which was registered and numbered as Title Appeal No.51/1995. In the said appeal, a cross-objection was filed by the plaintiffs herein. The Court of the Civil Judge (Senior Division), Karimganj dismissed the Title Appeal No.51/1995 on contest vide the judgment and decree dated 23.08.2001. However, no order was passed in the cross-objection filed by the plaintiffs. Thereupon, an appeal was preferred under Section 100 of the CPC before this Court by the principal defendant Nos. 1 to 5 which was registered and numbered as RSA No.15/2002. At the time of filing of the s
Point of Law : It is a well-settled principle of law that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuou....
It is settled that necessary ingredients of adverse possession are required to be specifically pleaded and necessary factual foundation in support thereof is to be made out. Equally important is nece....
Defendants claiming adverse possession must prove such claims with clear evidence, as the burden lies with them, and mere long possession does not equate to ownership.
The burden of proof in establishing adverse possession and the application of the Indian Limitation Act, 1963, are crucial legal principles established in the judgment.
(1) Recovery of possession – Limitation – Suit based on title where plea of adverse possession had not been raised could not be barred by limitation on ground that it was filed after more than 12 yea....
The main legal point established in the judgment is the principle of adverse possession and its application to determine property rights and limitation.
The main legal point established is the stringent requirements for establishing adverse possession, including the need for hostile possession, open and continuous possession, and the burden of proof ....
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