Ajit Ranjan Saojal v. Sandhaya Rani Saojal And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AMRITA SINHA SAT No. 11 of 2019 AJIT RANJAN SAOJAL ... APPELLANT Vs.

SANDHAYA RANI SAOJAL AND OTHERS ... RESPONDENTS For the Appellant : Mr. Ananda Halder For the Respondents : Mr. Arul Prasanth Heard on : November 10, 2021 Judgment on : November 16, 2021 AMRITA SINHA, J.

The instant second appeal arises out of the judgment dated 08.07.2019 and decree dated 24.07.2019 passed by the Learned Additional District Judge, Port Blair in Title Appeal No. 4 of 2017 reversing the judgment and decree dated 21.11.2016 passed by the Learned Civil Judge, Senior Division, Port Blair in T. S. No. 130 of 2011. The second appeal was admitted by framing the following questions of law: - I.

Whether the learned First Appellate Court was justified in law to set aside the judgment and decree passed by the learned Trial Judge dismissing the plaintiff's suit being barred by limitation? II.

Whether the learned First Appellate Court was justified in directing the defendant to vacate the suit property on the ground that he has no right to possess the same by adverse possession as claimed by him?

Title Suit No. 130 of 2011 was filed by the respondents for recovery of possession based on title and permanent injunction. The case of the plaintiffs as set out in the plaint was that the suit land is recorded in the name of one Chittaranjan Saojal who expired in the year 1977 leaving behind the plaintiffs i.e, his widow and children as his heirs and legal representatives. During the lifetime of Chittaranjan Saojal, on the request of the appellant, the said Chittaranjan allowed/permitted the appellant to stay in the suit property on condition that he would vacate the same on demand by him or his representatives. After the death of Chittaranjan in 1977 request was made by the plaintiff No. 1, i.e, the widow, to handover possession of the suit property which the defendant refused.

The appellant filed a Title Suit against the respondents being T. S. No. 26 of 2005 [Ajit Ranjan Saojal vs. Sandhya Rani Saojal and others] for declaration of title on the basis of adverse possession. The said Title Suit No. 26 of 2005 stood dismissed on contest. After dismissal of the appellant's title suit by judgment dated 30.12.2010 respondents filed the Title Suit No. 130 of 2011 in June 2011. By judgment dated 21.11.2015 the Learned Trial Judge was of the view that the respondents requested the appellant for the first time in the year 1977 to vacate the suit property which the appellant refused and accordingly, limitation to file the suit for recovery started running from the year 1977. The respondents ought to have filed the suit for recovery

of possession within 12 years from that date. The suit being filed beyond the period of 12 years is barred by Article 65 of the Limitation Act. The Learned Trial Judge observed that the appellant is in possession of the suit property and is enjoying the usufructs thereof and held that the title over the suit property of the respondents has been extinguished by 'adverse possession' of the appellant. The suit was dismissed on contest.

The respondents preferred appeal challenging the judgment and decree passed by the Ld. Trial Judge wherein the Learned First Appellate Court by judgment dated 08.07.2019 reversed the judgment of the Ld. Trial Judge and held that the respondents were entitled to get relief as prayed for in the suit. The First Appellate Court directed the appellant to vacate the suit property and handover peaceful possession of the same in favour of the respondents.

The crux of the present second appeal is to find out whether title of the respondents became 'adverse', if yes, from when. Admitted fact of the case is that the suit property is recorded in the name of Chittaranjan Saojal, the predecessor in interest of the respondents. It is also an admitted fact that the appellant is in possession of the suit property since the lifetime of the recorded owner and is holding and enjoying the same till date. Be it recorded that Chittaranjan Saojal and the father of the appellant herein, i.e, Laxmikanta Saojal were brothers. According to the

respondents, the appellant was in 'permissive possession' of the suit property. In the written statement the appellant admitted that he used to manage and take care of the suit property during the lifetime of the recorded owner and also after his death. The appellant has tried to make out a case in the written statement that he possessed the suit property adversely and he would get the title of the suit property subsequently in his favour and the respondents would not claim the suit property in future.

The appellant has also tried to make out a case that on the request of the respondent No. 1, the appellant delivered possession of his two other landed properties to the respondents which the respondents are occupying for the last 37 years, and are enjoying the usufructs thereof. The appellant has tried to make out a further case that the parties consented to hold on each other's landed property on exchange and accordingly it was mutually understood that none would reclaim possession of their personal property in future. The said case of possessing land on exchange has been categorically denied by the respondents. It has been specifically averred by the respondents that none of the parties are holding any land on exchange from the other. It is the specific contention of the respondents that they are not holding any land of the appellant.

Admittedly, as the appellant never initiated any proceeding to recover possession of his land allegedly possessed by the respondents, accordingly, the same cannot be a plea for not restoring possession or forcibly holding the land of the respondents. The owner can always exert ownership right in accordance with law.

It appears from the plaint (T.S- 26 of 2005) filed by the appellant for declaration of title on the basis of adverse possession that he took possession of the suit property in the year 1971 on consent of the predecessor in interest of the respondents and none of the respondents raised any question about the same. Nor did they raise any claim for the property at any time. Only in the first week of June 2005, the respondents entered into the suit property for the first time and tried to occupy the same by evicting him. With the view to protect his right over the suit land on the ground of adverse possession, the appellant filed the title suit.

According to the appellant, as the suit for recovery of possession was filed by the respondents in the year 2011, long after the appellant refused to hand over possession of the suit property in the year 1977, the suit is barred by limitation. The Ld. Trial Judge accepted the contention of the appellant and dismissed the suit.

The First Appellate Court, while reversing the judgment of the Ld. Trial Judge, relied upon several judgments of the Hon'ble Supreme Court to arrive at a conclusion as to when the right of adverse possession accrued in favour of the appellant.

It is settled law that long possession of property is not sufficient to declare the possession as 'adverse'. 'Permissive possession' cannot be construed as 'adverse possession' in the absence of any proof to show that the possessor was openly trying to deny the rightful title of the owner.

In the year 2005, the appellant filed a suit for declaration of title with the averment that he was in possession of the suit property for nearly 34 years and the respondents for the first time entered the suit property in June 2005 and tried to take possession thereof by evicting him therefrom. The said statement of the appellant implies that prior to June 2005 the respondents never exerted their right as owners over the suit property. It is only after the appellant's suit for declaration of title got dismissed did the respondents file the suit for recovery of possession. The question of possession becoming adverse arises only after the possessor openly denies the rightful title of the owner. In the instant case, the appellant himself has admitted in his plaint that the respondents asserted their right of ownership in the year 2005 by trying to evict him from the suit property and not prior thereto when the appellant was in permissive possession of the suit property.

Uninterrupted continuous possession does not necessarily imply adverse possession, is well settled by several dicta of the Hon'ble Supreme Court. The recorded owner of the land owned several other properties and as such it was not unusual for him to accept the request and permit his niece to occupy one of the same. The fact that the recorded owner or his heirs did not initiate any proceeding to evict the appellant even though they had knowledge of possession of the land by the appellant implies, that the respondents did not have any objection to the land being possessed by the appellant. It is only when the appellant openly tried to deny the ownership right of the heirs of the recorded owner by filing the suit for declaration of title in the year 2005, did the question of holding the land by adverse possession arise.

The title suit filed by the appellant for declaration of title stood dismissed by the learned Trial Judge on the ground of non-joinder of necessary party. However, the learned Trial Judge came to a finding that although initially possession of the appellant over the suit property was admittedly a permissive one, but after demise of the recorded owner, when the appellant refused to vacate the suit property on the request of the respondents, his possession turned into an adverse one and the same continued for more than twelve years. In appeal the aforesaid finding of the learned Trial Judge was not accepted by the learned Appellate Court who came to a finding that the evidence adduced did not conclusively prove the title of the appellant over the suit property.

The Court specifically observed that the element of adverse possession is absent and the appellant cannot be said to be entitled to the declaratory decree as to the title of the suit property. The judgment of the learned Single Judge merged with the judgment of the learned Appeal Court and the aforesaid finding of the learned Appeal Court attained finality as the appellant accepted and never challenged the same before the superior forum.

The Ld. Trial Court in Title Suit No. 130 of 2011 had the privilege to peruse the judgments passed in the earlier proceedings filed by the appellant but came to the conclusion that the facts and circumstances of the two title suits were distinguishable and the judgment passed in the earlier suit will not affect the merit of the latter suit. I am of the opinion that the Learned Trial Judge failed to appreciate the merits of the case in its proper perspective and applied the wrong test to come to the erroneous finding that the suit is barred by

limitation. It appears that the Learned Trial Court was swayed by the fact that the appellant remained in uninterrupted continuous possession of the suit property since 1971. The other factor being the averment in the plaint that the appellant refused to hand over possession when demanded after the death of the recorded owner in 1977. The Learned Trial Judge relied on the judgment of the Hon'ble Supreme Court in Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Another reported in (2014) 1 SCC 669 wherein the Court held that it would be open to plead in defense the fact of becoming owner of property by adverse possession.

In Ravinder Kaur Grewal and others vs. Manjit Kaur and others reported in (2019) 8 SCC 729 the Hon'ble Supreme Court held that the plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff. By the aforesaid judgment, the Hon'ble Supreme Court overruled the earlier judgment passed by the Supreme Court in Gurudwara Sahib (Supra). The Court held that the plea of adverse possession can be used both as a sword by the plaintiff as well as a shield by the defendant. Any person who has perfected the title by adverse possession can sue and maintain a title. In the instant case the suit filed by the appellant for declaration of title on adverse possession stood dismissed. The suit filed by the respondents praying for restoration of possession was allowed by the

First Appellate Court. The aforesaid judgments of the Hon'ble Supreme Court accordingly do not help the appellant.

In the case at hand the appellant failed to prove that he was in adverse possession of the suit property. The Title Suit filed by the appellant failed and stood dismissed as he could not prove adverse possession.

Though the respondents made an averment that after the death of the recorded owner in 1977, they requested the appellant to vacate the property which the appellant refused but the said averment could not be proved by adducing evidence. The First Appellate Court noted that the appellant on cross examination before the Trial Court as PW1 deposed, "not a fact that after death of Chittaranjan Saojal, his descendants approached him for handing over possession of the suit property." The First Appellate Court further observed that none of the other witnesses stated anything about the fact that at any point of time the respondents asked the appellant to vacate the suit property. The appellant himself asserted in his suit about the demand made by the respondents for vacating the suit property for the first time in June 2005.

The same leads to the unmistakable conclusion that the respondents actually asserted their claim as owners of the property for the first time in 2005 and accordingly the suit for restoration of possession being filed in the year 2011 is well within the period of limitation. Title of the land became adverse to the owners only in the year 2005 and not prior thereto.

The decision relied upon by the appellant in the matter of The State Bank of Travancore vs. Aravindan Kunju Panicker and others reported in 1972 (4) SCC 274 (paragraph 9) held that permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of 12 years or more. In the case at hand, there is no conclusive evidence to show that the appellant asserted any hostile title to the suit property prior to 2005 when the appellant filed the Title Suit for declaration of title on adverse possession.

Accordingly, relying on the aforesaid, the suit filed by the respondents for recovery of possession in 2011 cannot be held to be barred by the principles of limitation. The aforesaid judgment of the Hon'ble Supreme Court, as such, does not come to the aid of the appellant.

The unreported judgment dated 10th July, 2017 passed by a coordinate Bench of this Court in SA No. 001 of 2017 with CAN No. 007/2017 with SA No. 002 of 2017 in the matter of Shri Biren Dhali & Ors. vs Shri Dulal Dhali & Anr. relied upon by the appellant held that suit for recovery is maintainable when respondents have miserably failed to establish adverse possession. The Court directed to hand over possession of the suit properties to the appellants. Here also, the appellant miserably failed to establish title on adverse possession and as such the decision relied upon goes against him.

Regulation 38(1) of The Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 lays down thatAll land in the Union Territory of the Andaman and Nicobar Islands is vested absolutely in the Government, and save as provided by or under this Regulation, no person shall be deemed to have acquired any property therein or any right to or over the same by occupation, prescription or conveyance or in any other manner what so ever except by a conveyance executed by, or under the authority of, the Government. The land in question is recorded in favour of the predecessor in interest of the respondents. There is no conveyance or document in favour of the appellant in support of his ownership.

It appears that the appellant was under the misconception that as the suit property was under his possession for a considerable period of time and the respondents neither objected nor reclaimed the same, accordingly, he acquired ownership of the same by way of adverse possession. The appellant failed to appreciate that right and title of the owner is not extinguished only because the owner remained out of possession for more than twelve years. It is to be proved that the possessor openly denied the title of the actual or the recorded owner for a period of twelve years or more. The date from which the possessor denies the rightful title of the owner is extremely important and relevant to come to the conclusion whether the claim of title is hit by the principles of limitation or not.

Conduct of the parties in asserting title over the property is a vital piece of evidence to decide adverse possession.

Possessing a property for years together with consent of the owner cannot be treated as adverse possession of the same. The appellant was in possession of the suit property with consent of the recorded owner and after his death his successors in interest did not object to the appellant remaining in possession. In 2005 consent to possess was withdrawn and the respondents claimed possession which was refused by the appellant on the plea of acquiring title by adverse possession. Title became hostile on refusal to admit ownership of the successors in interest of the recorded owner. In view of the discussions made herein above, the questions framed at the time of admission of the second appeal is answered in the following manner1) The First Appellate Court rightly set aside the judgment and decree passed by the Learned Trial Judge dismissing the plaintiffs' suit being barred by limitation.

It is held that the plaintiffs' suit has been filed well within the prescribed period of limitation.

2) The First Appellate Court was justified in directing the defendant to vacate the suit property.

It is held that the appellant miserably failed to prove adverse possession over the suit property and the First Appellate Court rightly directed the appellant to vacate the same.

The Second Appeal is thus dismissed.

The appellant is directed to hand over possession of the suit property to the respondents within four months from date. On failure to hand over possession it will be open for the respondents to execute the decree before the proper forum.

No costs.

Decree be drawn up.

Lower Court Records along with the decree be sent down to the Learned Court below.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of usual formalities. (AMRITA SINHA, J.)