IMPORTANT POINT
To prove adverse possession, the claimant must establish possession adverse to the true owner, long and continuous possession known to the true owner, the date of possession, and open and undisturbed possession.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. P.K. Roychoudhury, the learned counsel for the appellants and Mr. S.K. Ghosh, the learned counsel appearing on behalf of the respondent Nos. 2 to 4.

2. The instant Appeal is directed against the judgment and decree dated 26.03.2004 passed in Title Appeal No. 23/2002 whereby the Appeal was dismissed thereby affirming the judgment and decree passed in Title Suit No. 23/1996 dated 22.05.2002. The instant Appeal is being taken up at the stage of Order XLI Rule 11 of the Code of Civil Procedure, 1908 (for short ‘the Code’) to ascertain as to whether the substantial questions of law so proposed by the learned counsel for the appellant can at all be formulated in terms with Section 100 (4) of the Code.

3. The learned counsel for the appellants has proposed before this Court the following three substantial questions of law which can be formulated in terms with Section 100 (4) of the Code:

(i) Whether the First Appellate Court while deciding the Issue No. 3 failed to frame and/or determine the question of adverse possession of the Defendant No. 1, 2, 3?

(ii) Whether the judgment of the First Appellate Court failed to state the point for determination and the reason for the decision?

(iii) Whether the plaintiff has not come forward and ascertained his title by the process of law within the period prescribed by the provisions of the statute of the limitation?

4. The question arises as to whether the said substantial questions of law so proposed can be at all formulated in the instant Appeal. For deciding the same, this Court briefly would like to take note of the facts leading to filing of the instant Appeal. The respondent Nos. 1 to 5 as plaintiffs had instituted a suit seeking recovery of khas possession of the suit land by evicting the defendants; for compensation/mesne-profit for unauthorized use and occupation of the suit premises etc. The claim of the plaintiffs in the suit was that that the Smti. Hemprobha Dey was the first wife of one Ramesh Chandra Dey who was the elder brother of Late Bisweswar Dey, the predecessor-in-interest of the plaintiffs. The said defendant No. 1 used to occupy the suit premises as permissive occupier with the children at first under the predecessor-in-interest of late Bisweswar Dey and after his death on 06.04.1981 under the plaintiffs.

5. It is the case of the plaintiffs that taking into account the helplessness and measurable situation of the defendant No. 1 and the children and there was no shelter, the predecessor-in-interest of the plaintiffs as well as the plaintiffs permitted the defendants to reside in the suit premises. However, the husband of the defendant No. 1 instituted a Title Suit No. 18/1986 in the Court of the learned Assistant District Judge, Jorhat against the plaintiffs and the proforma defendant No. 2 claiming right, title and interest over half share of the land in that suit alone and confirmation of joint possession thereof. The case set out by the said Ramesh Chandra Dey that he contributed the entire consideration of Rs. 30,000/- in installment in respect of the 3 kathas of land and paid to the owner Mahesh Chandra Buragohain through his brother Bisweswar Dey but the latter obtained the Sale Deed registered in his name alone excluding Ramesh Chandra Dey. However, the said suit was dismissed on merit ultimately.

6. It was the further case of the plaintiffs that the entire land of 3 Kathas as covered by Dag No. 4748 of P.P. No. 132 in Block No. 2, Jorhat town with standing structures with a garage including the suit premises was the self acquired property of Late Bisweswar Dey. Late Bisweswar Dey was a tenant earlier in a portion of the above land, paid a sum of Rs. 1,500/- as advance for purchase of the entire land of 3 kathas, vide receipt dated 24.03.1965 to be paid in installments and paid the consideration of money of Rs. 20,000/- only in installments and got the sale deed executed and registered on 12.12.1970 in respect of 2 kathas of land a