Claiming adverse possession requires the claimant to establish non-permissive possession without acknowledgment of original ownership, which was not fulfilled in this case.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the appellants.

2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 17.12.2024 passed in Title Appeal No.08/2020 whereby the appeal was dismissed thereby affirming the judgment and decree dated 27.01.2020 passed in Title Suit No.33/2009 by the Court of the learned Civil Judge (Junior Division) No.1, Nagaon.

3. Ms. R. Choudhury, the learned counsel appearing on behalf of the appellants submitted that although in the memo of appeal, various questions of law has been proposed, but the question she would like to propose before this Court is whether the findings so arrived at by both the Courts below in respect to adverse possession is sustainable or correct in presence of clear pleadings of adverse possession by the defendants in the written statement. 4. Taking into account that the instant appeal has been taken up at the stage of Order XLI Rule 11 of the Code, this Court would ascertain as to whether the proposed question of law can at all be formulated as a substantial question of law in the instant appeal.

5. The respondents herein as plaintiffs had instituted a suit being Title Suit No.33/2009 seeking declaration of their right, title and interest over the Schedule-A land; for decree for recovery of khas possession of Schedule-A land and thereby evicting the defendants from the said land etc.

6. The defendants filed their written statement and in the said written statement, it was duly admitted that the plaintiffs were the owner of the suit land and the plaintiffs and the defendants had orally agreed for transfer of the said suit land and in that regard, permission was obtained from the concerned authority on 12.03.1993. However, the plaintiffs did not sell the land and the defendants thereupon continued to remain in possession of the suit land and on the basis thereof, have claimed that the possession of the defendants have matured into adverse possession. The relevant paragraphs of the written statement on the basis of which the defendants/appellants herein claim that they are in adverse possession are reproduced herein under:

“That, as per terms of Oral contract, the defendant paid Rs.20,000/- on or about 10.2.92 and Rs.26,000/- on 25.11.92 to the Plaintiffs being the fractional payment of the sale consideration price, and the Plaintiff also accepted the such payment with a promise to execute sale deed, after obtaining Sale permission from the Authority of Govt.

That, the Plaintiff few days after receiving of such payment of Rs.46,000/- had told the defendant that they now decided not to sale the entire land as agreed upon by Oral contract, but to sale 3 bighas 1 kathas 10 lechas of land to the defendant and also told that they would be refunded the amount which would be found excess after calculating price of the land measuring 3 bighas 1 kathas 10 lechas instead of 6 bighas 4 kathas as agreed upon earlier. The defendants when paid the entire Sale Price of the land agreed to be sold, on a bonafide belief of Oral Sale agreement, finding no alternative agreed to purchased the said land, as agreed upon by the Plaintiff. Accordingly, the Plaintiffs put signature on the application for obtaining Sale permission for the land measuring 3 bighas 1 kathas 10 lechas, and a sale permission has been given by the Authority of Govt. vide NRX 4/92/Pt-2/14, dated 12.3.93.

That, after obtaining Sale permission, the Plaintiffs again approached to the defendant that, they would going to sold only the land measuring 1 bigha 1 katha 10 lechas only instead of 3 bighas 1 katha 1