IMPORTANT POINT
Mere possession for a long time does not convert permissive possession into adverse possession. The burden of proof rests on the party claiming adverse possession, and unregistered documents may not be admissible for collateral purposes.

JUDGMENT :

This is the plaintiff’s appeal under Section 100 of CPC, 1908 against the judgment and decree dated 31.08.2019 passed by the learned Civil Judge, Dhubri in T.A. no. 45/2018. By impugned order the first appellate court has allowed the defendant’s appeal and set aside the judgment and decree dated 20.09.2018 passed by the learned Munsiff, Hatsingimari in T.S. no. 34/2016 by which the suit of the appellant/plaintiff was decreed with cost and mense profit @ Rs. 25 per day from the date of filing of suit till recovery of khas possession by the plaintiff.

2. The case of the plaintiff-appellant is that the plaintiff is the owner of land measuring 19 Bigha 4 K 3 Lechas situated at Assam Kata Village under Khatian no. 151 (T. no. 33). The said land was recorded in the name of the plaintiff-appellant and his mother AjiranNessaBewa in recent settlement operation under Patta no. 138(Old), 192(New). But subsequently the name of the mother was expunged. Hence, the plaintiff is the sole owner of the entire land.

3. Late Abdul Sheikh, the predecessor of the defendant no. 1 & 2, and Late Abdul Gani Sheikh, the predecessor of the defendant nos. 3 to 5, allowed to reside in a part of the land, more or less, 1 Bigha out of the entire land of the plaintiff-appellant i.e. 19B-4K-3L as permissive possessor on condition that they would vacate the said land when asked for. During the lifetime of both Abdul Sheikh and Abdul Gani Sheikh, predecessor of the defendants maintained good relation with the plaintiff. After the death of Abdul Sheikh and Abdul Gani Sheikh they tried to inclusion of their names and the patta showing their possession over the suit land. The plaintiff-appellant knowing about the illegal acts of the defendants-respondents filed an application before the Assistant Settlement Officer, Mankachar Circle for cancellation of the name of the defendants-respondents. The present defendant is residing in the suit land as the permissive occupier under the plaintiff like their deceased predecessor. Though the plaintiff-appellant asked the defendant several times to vacate the suit land but they did not pay heed to his request. Thereafter, the plaintiff-appellant served an advocate notice to the respondent in the year 2012 to vacate the suit land but the defendant on receipt of the said notice, neither vacated the suit land nor sent a reply to the notice.

4. On contesting the case, the defendants have filed their written statement wherein they took the plea that the suit is bad for non joinder of legal heirs of deceased sister of the plaintiff. However, the defendant in their written statement has admitted that the mother of the plaintiff, Asiran Nessa was the co-pattadar of the suit land. In the written statement, the defendants stated that the predecessors of the defendants got permanent settlement of the suit land as tenants as to the local customs about 60 years back and since then they have been residing in the suit land by constructing their respective houses. They used to pay the land revenue to the land lord as such they are not the permissive possessor of the suit land and as such the question of vacating the suit land does not arise at all. It is also stated that the plaintiff never asked the defendants to vacate the suit land.

5. On the basis of the pleadings of the parties, the learned trial court has framed seven issues. Regarding non-joinder of necessary parties, the trial court has held that though the defendants in their written statement raised the point that the suit is bad for non-joinder of necessary parties as the legal heirs of the deceased sister of the plaintiff were not impleaded as party in the suit, however, the defendants nowhere mentioned the names of the deceased sisters of the plaintiff nor their legal heirs either by filing a petition or mentioning their names in the written statement. Hence, the trial court has held that though the defendant raised the plea but did not state the names or whereabouts of the