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GAUHATI HIGH COURT
S. Talapatra, J.
Jayanta Saha and Ors. —Appellants
versus
Tarun Kumar Saha —Respondent
R.S.A. No. 72 of 2007
Decided on 06.06.2012
Counsel for the Parties:
For the Appellants:D. Chakraborty, Advocate.
For the Respondent:A. Lodh and M. Datta, Advocate.
IMPORTANT POINT
In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession becomes adverse.
Headnote:Civil Procedure Code,1908-Section 100-Limitation Act,1963-Article 64,65-Suit for declaration of title and recovery of possession-Decreed by Trial Court-Appeal-Dismissed-Second Appeal- Instantly plaintiff-respondents had proved their title - The defendant-appellants did not raise any claim for the adverse plea- The plaintiff-respondent has proved his title and as such, the burden has shifted to the defendants in view of the provision of the New Limitation Act of 1963 and the said burden had not been discharged at all by defendants- In view of this, held that the suit was not barred by limitation-Possession had been recorded in favour of predecessor of the plaintiff-respondent and his legal heirs in the record of right, the burden was heavy on the appellants but they failed to discharge the burden as stated- Denial to the claim of recovery cannot provide a spring board for claiming the title on adverse possession- No infirmity in the concurrent findings of the Courts below that the suit had been instituted within the period of limitation-Appeal dismissed. (Paras 23, 24)
Result: Appeal dismissed
S. Talapatra, J.—This appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 9.7.2007 as passed by the learned District Judge, South Tripura, Udaipur in Title Appeal No. 6 of 2007 affirming the judgment and decree dated 1.12.2006 as passed by the learned Civil Judge (Sr. Division), South Tripura, Udaipur in T.S. No. 22 of 2002.
2. For purpose of determining, the substantial question of law, the fact that may appear essential is briefly noted:
(1) The predecessor of the plaintiff-respondent namely. Girindra Mohan Saha purchased the land described in the A Schedule of the plaint alongwith other pieces of land from one Indra Lal Saha, predecessor of the appellants in the year 1964 by the registered sale-deed No. 4532 dated 25.9.1964 and the land that was purchased was measuring .46 .acre and after purchasing, the said predecessor of the plaintiff-respondent got possession and had been in possession of the said land. The said predecessor died in the year, 1980 and after his death, the suit land alongwith other lands were partitioned among the co-sharer. By the registered deed of partition No. 1-1996 dated 12.9.2001, the plaintiff-respondent got the suit land alongwith other lands, but while taking possession of his share in pursuance to the partition deed dated 12.9.2001 in the month of September, he found that the defendants have stealthily encroached .08 acre of the purchased land as described in the A Schedule. The said encroached land has been separately described in the Schedule B of the plaint which is referred hereinafter as the suit land. The plaintiff-respondent failed to, pursue the appellants-defendants herein to vacate the said land and as consequence thereof, the instant suit was filed for recovery of the possession based on the title. The defendant Nos. 1 to 5 filed a written joint statement whereby they denied the entire allegation of encroaching the suit land or refusal of vacating the same. They categorically stated in the written statement that “There is no existence of ‘B’ schedule land, it is an imaginary one. No land of the plaintiff was encroached by the defendants.” The defendant Nos. 6 and 7 by filing a separate written statement claimed that they are now possessing the said suit land as the title of that part of the land devolved unto them after death of their father Indra Lal Saha and the plaintiff-respondent has no right on that land. They stated in Para 5 of their written statement as under:
“Indra Lal Saha during his lifetime in the last part of 1990 excavated a pond and its bank on the entire land of sabek dag No. 2542 and southern portion of sabek dag No. 2541 and some portion of land of sabek dag No. 2546 measuring .29 acres and he planted a good number of betel-nut plants and other plants on the bank of said pond. He also used to possess the entire land of sabek dag No. 2547 area .08 acres by growing seasonal crops therein. After the death of Indra Lal Saha, the defendants jointly used to possess the suit land and enjoyed the usufructs therefrom like their predecessors in interest.
After the aforesaid amicable partition/family settlement the answering defendants jointly have been possessing the suit of sabek dag No. 2547 by growing seasonal crops therein and enjoying the fruits from those standing fruit bearing betel-nut trees and other trees and they have been possessing land by rearing fishes therein within the knowledge of other defendants, plaintiffs and local people till today.
10. That the present suit was filed by the plaintiff in connivance with the defendant Nos. 1 to 5 only to frustrate the family settlement which was made amongst the defendants in the last part of June, 2000 A.D. in respect of properties left by late Indra Lal Saha and to grab the land of Hal Plot Nos. 4324.and 4288 (N.P) area .29 acres by the defendant Nos. 1 to 5 and the balance allotted land of answering defendants in Hal Plot No. 4329 (N.P) area
