Adverse
possession can be enforced against a person who does not prove a better
title
High
Court Division
(Civil Revisional Jurisdiction)
Civil Revision No. 813 of 1999
Janab Ali Mondal and others
V
Md. Anowar Hossain and others
Before Mr. Justice Mirza Hussain Haider
Date of Judgment : May 28, 2003
Resul : Rule discharged
Background
Mirza Hussain Haider, J: The defendant-petitioners obtained this Rule
to show cause as to why the impugned judgment and decree dated 11.2.1999,
passed by the learned Additional District Judge, Jhenidah, in Title
Appeal No. 78 of 1996 reversing those dated 23.4.1996 passed by the
learned Subordinate Judge (now Joint District Judge), Jhenidah, in Title
Suit No. 58 of 1986 should not be set aside and/or pass such other of
further order or orders as may be deemed fit and proper.
The
case of the defendant-petitioners in short, is that on 29.12.1980 the
opposite party instituted Title Suit for declaration of his title in
the Court of Subordinate Judge, Jessore. Against the heirs of Godai
Molla and the suit was transferred to the Court of Subordinate Judge
Jhenidah on 16.3.1986 and renumbered as Title Suit No. 58 of 1986. The
plaintiff alleged that the suit property along with other properties
originally belonged to one Kunjo Bihari Ghose under the Superior landlord
Raja Bhushan Dev Roy Bahadur. Kunjo Bihair Ghose while possessing the
suit land died leaving behind his only son Rashik Lal Ghose who inherited
the same and subsequently settled 7.08 acre of land, orally, with the
plaintiff on 10th Ashar, 1350 BS and since then the plaintiff has been
possessing the same peacefully.
The
present petitioner appeared and contested the suit by denying all material
allegations of the plaint contending inter alia that admittedly the
suit land originally belonged to Kunja Bihari Ghose under Raja Promotha
Bhushan Deb Roy Bahadur. But the said defendant claims that Kunja Bihari,
while possessing the suit property settled the same in favour of Godai
Molla by oral settlement. Subsequently Kunja Bihari surrendered his
interest in favour of the superior Land Lord and since continued to
pay rent in the Sheresta. The defendant petitioner claims that one Rajab
Ali and some others instituted Title Suit No. 150 of 1953 in the 2nd
Court of Munsif, Jhenidah against Godai Mollah and obtained a collusive
sole decree which was challenged by Godai Mola in Title Suit No. 78
of 1955 of the same Court wherein the said sole decree was set aside
against which Rajab Ali and others unsuccessfully moved up to the High
Court of East Pakistan. The contention of the contesting defendant is
that during the Rent Role Verification the suit property was correctly
recorded in the name of Godai Mollah who subsequently transferred the
entire property to Babar Ali, Khelafot, Ator and Khotejan. Some of these
transferees in their turn transferred some of their shares to some other
persons.
Deliberation
Upon hearing the parties and perusing the evidences on record the trial
court was pleased to dismiss the suit by its judgment and decree. Against
the aforesaid judgment and decree, the plaintiff preferred Title Appeal
No. 78 of 1996 in the Court of District Judge, Jhenidah. But the defendants
did not challenge the finding of the trial court as regards disbelieving
Godai Molla's title in the suit land by "Bondabasta"
as well as the title of the defendants on the basis of the said unfounded
"Bondabasta". Also the finding of the plaintiffs
part possession by preferring neither any appeal nor the defendants
filed any cross objection in the appeal filed by the plaintiff. However,
the aforesaid appeal of the plaintiff appellant was ultimately heard
by the learned additional district Judge who allowed the same on contest
and reversed the findings and decision of the trial court and thereby
decreed the suit.
Mr.
Harendra Nath Nondy, the learned advocate appearing for the petitioners,
submits that the suit is barred by limitation. Secondly, he submits
that PW's admission that other than 3 Katas of his paternal property.
He did not purchase or acquire any property, which supports the suggestion
of the defendants that the plaintiff has no right, title and interest
in the suit land and hence he did not record his name. Thirdly, he submits
that recording of Godai's name being existing for long 30 years, and
supported by the dakhilas, the presumption should have been that the
defendants have title and possession in the suit land. According to
him the rent receipts filed by the defendants are corollary evidences
of title and possession and thus the rent receipts of the defendants
following the title of Godai Molla being not considered by the courts
below the findings and decision arrived at the are erroneous and as
such liable to be set aside. According to him the finding of the court
of appeal below being based on inadequate evidence the same has resulted
error in the decision occasioning failure of justice. Mr. Nondy submits
that Rashik Lal Ghose S/O Kunja Behari Ghose, was produced as P.W.,
who admitted that his father Kunju Bihari Ghose surendered possession
of the suit land to the superior Land Lord. Lastly he submits that the
learned Judge failed to consider that without asking for consequential
relief simple declaration of this nature is not maintainable.
On
the other hand, Mr. Nurul Amin appearing with Mrs. Sakila Rowshan, learned
Advocates for the plaintiff submit that this revisional application
filed by the added defendants is not maintainable. Because Ainuddin
the defendant who has been shown as petitioner neither contested the
suit by filing any written statement nor preferred or contested the
appeal. But he deposed as D.W. wherein he neither claimed his on title
and possession in the suit land nor he proved the title and possession
of any other defendant and having no interest in the suit land cannot
have any grievance against the judgment and decree . And cannot be a
petitioner in this revisional application and the other defendants having
adopted defendant's case did not take sufficient steps to prove them
as such this application is not maintainable. Moreover, without filing
any appeal or cross objection against the findings of the trial court
with the title of Godai Molla and exclusive possession of the defendants
they are not in any way aggrieved and they have no locus standi
to file the revisional application. Mr. Amin then submits that the petitioner
now cannot argue that rent receipts are corollary evidences of title
and possession before this court. As because Godai's title as well as
the defendants' title having not been proved before the court below
by producing any convincing and cogent evidence, which they could also
do in the appeal and the defendants having not preferred any appeal
challenging those findings. Thus they cannot now argue contrary to the
concurrent findings of fact.
He
also submits that the courts below rightly did not take the same into
consideration as neither the plaintiff nor his predecessors were parties
in the said decree rather the same was passed against a 3rd party who
is not a party in the present suit. On the point of limitation Mr Amin
submits that the suit is not barred by limitation. He submits that the
plaintiff is not bound to institute a suit for declaration that the
entry in the record of rights is wrong rather he can wait and sue when
his right is invaded. About the next contention of Mr Nondy that a finding
of fact when not based one evidence or based on merely inadequate evidence
or inconsistent with the evidence with the evidence on record the High
Court can interfere when misreading of evidence is apparent. Mr Amin
submits that the said principle also does not help Mr Nondy, in any
manner, because relying upon the evidences available on record the courts
below came to a definite finding that the defendants failed to prove
their title or exclusive possession in the suit property.
Mr
Amin next submits the CS Khatian bears the name of Kunja Behari
Ghose as a Rayoti tenant which cannot be surrendered simply
by oral pronouncement without compliance of the provisions of sections
85, 86 and 87 of the Bengal Tenancy Act. Thus the statement of Rashik
Lal as to surrendering the tenancy by his predecessor to the superior
Landlord cannot be construed as complete evidence and as such the petitioner
cannot take any advantage of the said statement. Mr Amin submits that
the court below very carefully considered all the evidences on record
specially the rent receipts and came to proper finding that the defendants
failed to prove their title no matter Goddai Molla's name was in the
record for a certain period but without filing any rent receipt or any
other document his title is not proved. Lastly, Mr Amin submits that
for argument sake if it found that the plaintiffs title through his
predecessors settlement in 1350 BS is not valid, which is not at all
admitted rather found to be proved as valid by the last court. In fact
the plaintiff has a good and valid title by way of adverse possession
and the plaintiff had been enjoying the same and also transferred some
portion of it to different persons and now he is possessing the rest
of it along with 3 Khathas of his paternal property. According
to him the judgment of the court of appeal below having been based on
proper consideration and appreciation of all the material evidences
available on record and upon proper scrutinizing the same, is a correct
judgment and as such there is nothing to interfere with the same.
On
hearing the learned Advocates for both the parties at length and on
record it appears that the defendants did not file any appeal or cross
objection challenging the findings of the trial court as regards disbelieving
the title of Godai Molla in the suit land. As such the said finding
being not reversed by any competent court the same remains as a final
finding of fact thus the defendants cannot claim their own title and
possession under the revisional jurisdiction, contrary to what has been
found by the courts below. In several decisions it is clearly said that
only the error of law can not be a ground for interference under section
115(1) of the Code. But it is also the duty of the petitioner to prove
that such error has caused error in the decision occasioning failure
of justice. Under such circumstances Mr Nondy the frankly admits that
it is difficult to attract section 115 of the Code of Civil Procedure
to set aside the impugned judgment on the ground that the error, if
any found, has occasioned failure of justice to his clients. So in the
present Rule only point remains to see whether the court below has committed
any error in holding that the plaintiff has been able to prove his case
by sufficient evidence, not beyond that. It appears that the plaintiff
produced five witnesses and some documentary evidences to prove his
case and relying upon all the evidences on record and considering the
same the courts below disbelieved the title of Godai Molla as the defendants
failed to produce or prove the alleged "Bondabasta Nama".
And also failed to prove the date of settlement by Kunja Behari in favour
of Godai Molla or any other date of settlement subsequent thereto by
the superior Landlord as alleged. Documents they have produced in this
respect show that some rents were paid by one Ainuddin a non contesting
defendant having no interest in the suit land. As such there is no evidence
on record from which the courts below could arrive at a decision that
Godai Mollah had a valid title and after his death his heirs inherited
the same and transferred it to the defendants. It appears that after
Kunja Behari Ghose his son and successor Rashik Lal became the owner
of the suit land and continued to possess the same and settled the same
to the plaintiff. On receiving rents by Rashik Lal having been produced
before the Court and clearly show that there is no discrepancy in this
respect that the suit land has been transferred to the plaintiff. It
can be said that when no less than the settler himself the son of the
admitted recorded tenant Kunija Behari, appears and admits the rent
receipts than the primary of the same is already made. And the burden
of proving contrary or otherwise of those receipts thereafter is thus
shifted to the persons who challenges the same. In the present case
the onus of proving transfers from the admitted tenant Kunja Behari
Ghose through his son to the plaintiff and to prove the same. He proved
the rent receipts in support of his contention. The signatures in those
receipts dakhilas having been proved by Rashik Lal himself, those are
rightly taken into consideration by the court of appeal below which
decree the suit. Thus it appears that the plaintiff proved the transfer
in his favour by sufficient evidence. It appears that admittedly the
defendants before the court to prove Godai's title by way of settlement
have produced nothing. To prove payment of rent from Godai time till
filing of the suit in 1980 to prove that Godai Molla or any of the subsequent
transferees paid rents in support of their title or possession in the
suit land. Thus such rent receipts is subsequent to the institution
of the suit cannot be considered as corollary evidence to the defendants.
Thus in the absence of any such evidence on record the courts below
rightly found that Godai and or the defendants claim through him do
not have any title in the suit land.
Whatever
might be the statement of PW unless the provisions of sections 85,86
and 87 of the BT Act are complied with the surrender cannot be proved
under the law. The defendants having not taken any step to prove such
surrender or abandonment of the Tenancy by adducing any evidence the
allegation of surrendering and or the statement made by Rashik lal,
will not ipso facto prove the defence case. However it appears that
PW has proved plaintiffs possession in the suit land for last 45/46
years. However, when Rashik Lal categorically deposed that he has transferred
the suit land to the and the plaintiff's possession being proved by
other witnesses there remains no doubt in to hold that the plaintiff
has been able to prove his title and possession. On the other hand the
evidence led by the defendants, in no way, proves the title of the defendants
having clearly proved the title and possession of the plaintiff. The
court of appeal below rightly passed the impugned judgment and as such
no error has been committed in passing the same occasioning failure
of justice.
Mr.
Nondy could not point out any misreading of evidence in the judgment
of the lower appellate court. It is true that the plaintiff is to prove
his title in all the cases. But it is now settled that the plaintiff
is not always required to prove his title to the hilt rather if he is
able to prove his title better than that of his adversary it is enough.
Moreover, adverse possession in law is subsisting right of a party,
which the law protects and which can be enforced against a person who
does not prove a better title. Thus it appears that the plaintiff, in
this case have been able to prove better title against the defendants
and having possessing the suit land since 1350 B.S. he is as such, entitled
to a decree.
Judgement
Having consonance with the decisions referred herein above I am of the
view that the learned court of appeal below rightly allowed the appeal
and decreed the suits upon setting aside the judgment and decree of
the trial court on discussing and considering all the materials on record
and as such in doing so the learned judge did not commit any error of
law resulting in an error in the decision occasioning failure of justice.
I
do not find any merit in the Rule. Accordingly, the Rule is discharged
without any order as to cost.
The
judgment and decree passed by the learned Additional District Judge,
2nd Court Jhenidah in Title Appeal No. 78 of 1996 is affirmed.
Mr.
Harendra Nath Nondy, Advocate, for the defendant-petitioners.
Mr. Nurul Amin, with Mrs. Sakila Rowshan, Advocates, for the opposite
party.
