Nil Chandra Das v. Sabita Mondal And ORS.
IN THE HIGH COUR AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
SAT/4/2020 Nil Chandra Das ... Appellant Vs.
Sabita Mondal & others ... Respondents Mr.Ananda Halder, Advocate ... for the appellant September 07, 2021 [GNC] Item No.5 The instant appeal has been directed against the judgment and decree dated September 24, 2019 passed by the Additional District Judge, Mayabunder, North and Middle Andaman in Other Appeal No.4 of 2019 thereby affirming the judgment and decree dated July 25, 2016 passed by the learned Civil Judge (Senior Division), Mayabunder, North and Middle Andaman in Other Suit No.71 of 2012.
The defendant/appellant has filed the instant appeal challenging the judgment and decree of affirmance on the premise that he has been in the possession of the premise since 1965 and asserts all rights available to the allottee of the land and therefore by virtue of possession over the subject plot of land he has perfected his title by adverse possession.
The present suit is filed by the plaintiff/respondent claiming to be the successor of the original settler of the
land being survey Nos.79, 100, 102/1 and 102/2 comprising a total area of 4.05 hectares situated at Milangram village of Diglipur Tehsil. It is further contended that the defendant/appellant is resident of a near hilly land comprised in survey No.79 of the plaintiff and the since last five years he has extended his area of possession by constructing a new house despite the objection being raised by the plaintiff/respondent. An application for demarcation was filed before the Tehsildar which remained pending for a pretty long time because of in-availability of the survey instruments. It was finally demarcated by the revenue officer on March 22, 2012 and the defendant/appellant was found in occupation of 2250 square meters of land in survey plot No.79. Immediately, the plaintiff/respondent demanded the possession as the defendant/appellant was in wrongful occupation thereof and having refused to do so, the suit was filed for recovery of possession and the damages.
It is the specific stand of the defendant/appellant that he was occupying the survey plot since 1965 even during the life time of the original settler without any objection from any corner and because of such long possession he was perfected his title by adverse possession. Both the Courts after considering the evidence, documentary and oral, returned its findings that the defendant/appellant has miserably failed to prove his case
of perfection of title by adverse possession. It is contended by the learned advocate for the defendant/appellant that since the possession was undisputed in respect of the subject land at the behest of the plaintiff/respondent the suit for recovery of possession was wrongly decreed by the trial court and affirmed by the first appellate court. It is further contended that since they have made constructions over the land it presupposes the existence of a right at the plot of land and because of the long possession having admitted by the plaintiff/respondent, the title has vested into the defendant/appellant.
It is no doubt true that the possession is nineth principle of title. A person who is in uninterrupted possession and claimed hostile title over the plot of land to the knowledge of the owner can claim title for such long possession. It is somewhat settled that mere long possession in the property does not ipso facto turn out to be an adverse possession. The principle of adverse possession is based on a legal maxim nec vi, nec clam, nec precario, meaning thereby the possession must be open, continuous, uninterrupted and hostile. There is no iota of piece of evidence produced by the defendant/appellant when he asserted the hostile title to the exclusion of the owner but the entire case is founded on the pleading that the possession being long it perfected the title.
Both the Courts have categorically held that merely length of the possession is not sufficient for the purpose of establishing the claim of adverse possession. There must be an existence of animus possidendi to the knowledge of the owner and despite having such knowledge if no steps have been taken for a period of 12 years or more in asserting the right the person in possession can claim title by adverse possession and not otherwise. It is a weak right as a person cannot be deprived of the property and the protection whereof has bene given under Article 300A of the Constitution of India. The right can only be taken away by the established procedure of law and therefore the onus to prove the title by adverse possession heavily lies on a person asserting such right. Since the defendant/appellant has miserably failed to prove the element of adverse possession, we do not find any substantial questions of law involved in the instant appeal. The same is hereby dismissed.
In view of the dismissal of the appeal at the admission stage, the connected applications become infructuous and are accordingly dismissed.
(Harish Tandon, J. ) ( Shivakant Prasad, J. )