District: Rajshahi
In the Court of the Senior Assistant Judge, Mohonpur,
Rajshahi
Present: - Md. Abdul Malek, Senior Assistant Judge
Other Class Suit No. 61/2015
Mr. Md. Nilchad (Plaintiff) Versus Md. Yakub
(Defendant).
The
suit’s trial gets ended and the argument is heard.
In the presence of...
And having stood for consideration to this day, the Court delivered the following judgment: This is a suit for declaration that the plaintiff is entitled to the landed property described in the schedule to the plaint through adverse possession.
The Plaint in the nutshell:
The landed property described in the schedule to the
plaint has been in possession of the plaintiff from the lifetime of their
predecessor over a period of 40 years by way of adverse possession of the suit
lands. Actually, there was an oral exchange
transactions between the fathers of the plaitifff and defendants. In that
exchange, the defendants’ father took 16 decimal of lands comprising plot No.
150 of the SA khatian No. 52, and the plaintiff’s father took the suit lands. Nevertheless,
RS record was wrongly prepared in the name of the defendants’ father
Shahban. In fact, although the RS recorded tenant of the landed property
described in the schedule to the plaint is one Shahban, the father of the
defendants, they are completely out of the possession of the suit lands over 40
years. Even the predecessor of the plaintiffs attempted to take possession of
the suit lands mentioning such RS record, but the plaintiffs' father drove them
away from the suit lands. But all of a
sudden, the defendant made threats for dispossessing the plaintiffs from the
suit lands on 10/05/2015, and hence, the
plaintiff instituted the suit and invoked the court’s jurisdiction as prayed
for.
The
Written Statement in brief:
The Defendants contested the suit by filing a written statement denying
the material averments made in the plaint. He contended therein, inter alia,
that suit is the defect of parties, barred by limitation, and not maintainable
in present form. Besides, the very suit’s facts are falsified that produce no
cause of action and thus, is legally untenable, unjustifiable; and dismissible
in law.
The SA recorded tenant of the landed property described in the schedule
to the plaint is one Shahban Soardar and Shobhan Sardar. They were in
possession of the suit lands on the basis of oral partitions. The RS record was
prepared in the name of Shahban, the father of the plaintiffs, against 15
decimal of the suit lands comprised in the RS khatian No. 170. While in the exclusive
possession of the suit lands, Shahban Sardar died leaving behind the
plaintiffs, who were then placed in possession thereof. But after the plaintiff
dispossessed them from the suit lands in the first half of the year of 2013,
the defendants lodged an allegation with the concerned Union Parishod on
16/04/2013 but got no positive results from there. The plaintiff also made
threats to them for not instituting any lawsuit in the regular court.
Accordingly, the plaintiffs acquire no title to the suit lands. Hence, the suit
is liable to be dismissed with costs.
Issues:
The pleadings of the
parties are considered. As such, looking forward to determining the matters in
controversy, the already framed issues are reframed under Rule 5 of Order 14 of
the 1908 Code of Civil Procedure in the following way:
1.
Whether the suit is
maintainable in the present form and manner.
2.
Whether the suit suffers from the defect of party.
3.
Whether the
plaintiffs have acquired title to the suit land.
4.
Whether the
plaintiffs may get relief as prayed for.
Findings
and Decisions
As proof of the claims, the plaintiff examined 04 witnesses and produced for the court's inspection documentary shreds of evidence which are marked as Exhibit No. 1. Defendants also examined 02 witnesses and produced documents marked as exhibit Nos. Ka-Gha. Heard the argument of the learned advocates appearing for both the parties.
Issue
No. 2:
Pleading is a statement of claims. For every cause of action or relief, there must have a foundation in the pleadings. The purpose of Pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. The relevant law in this respect is well-settled so far. On perusal of the suit record, it appears before the Court that in absence of anything contrary to it, the plaintiffs impleaded all heirs of the RS recorded tenant in the suit. In addition, except averments made in pleadings, no party to the suit raised any point as to the fact that the suit is bad for parties, and there is no materials on record that demonstrates the non-joinder of parties to the suit. Hence, this issue is decided in favor of the Plaintiffs.
Issue
No. 3:
It is admitted that the defendant is out of the possession of the suit lands and now, the plaintiff is in the possession of that landed property. Since the plaintiffs are claiming their rights by way of adverse possession, the burden of proof in respect to adverse possession is on them (for they claim that they have acquired title to the suit lands by way of adverse possession). As per Article 142 (and 144 respectively) of the 1908 Limitation Act, the plaintiff can only take a plea of adverse possession only if he has adversely to the defendant been in the physical possession of the property for the last 12 years and the defendant’s right under section 28 of the Limitation Act is extinguished. Since the plea of adverse possession is not a pure question of law but a blended one of fact and law, there are some required elements for an adverse possession to be effective.
03. In a case of adverse possession of land, these aspects are to be taken into consideration: the plaintiffs’ possessor must have actually entered the property and must have exclusive possession of the property; the possession must be “open and notorious”; the possession must be adverse to the rightful owner and under a claim of right; and the possession must be “continuous” for the statutory period. More specifically, the plaintiffs claiming adverse possession must demonstrate (a) on what date, he came into possession; (b) what was the nature of his possession; (c) whether his possession was open, exclusive, continuous and undisturbed; (d) how long his possession has continued, and (e) whether the factum of possession was known and hostile to the true owner.
04. On perusal of the materials available on record, it becomes trite to say that the plaintiffs appear to have claimed that they are in the exclusive possession of the suit lands over a period of 40 years. Interestingly, the defendants admitted [vide DW-01] in ways that currently, the plaintiffs are in possession of 15 decimal lands comprised in the RS plot No. 203. But they (plaintiffs) don't admit the plaintiff's possession in the suit lands before the year of 2013. As a result, on perusal of the shred of evidence adduced by the PW-01 and DW-01, it first becomes evident that the plaintiffs are now in “actual physical” possession and “not merely constructive” possession over the land.
05. Secondly, the plaintiffs further have proved that they have the requisite ingredient of animus possidendi (intention to possess) while claiming ownership by taking the plea of adverse possession. Hostile Possession is a kind of possession that is without the consent of the owner and the assertion of which conflicts with the property ownership interests of the owner. Moreover, since animus possidendi is necessary, possession does not become adverse when the intention to hold adversely is wanting. In our case, the materials on record vividly suggest that the plaintiffs holding the suit property by way of adverse possession must have published his intention to deny the right of the real owner, and such an intention of adverse possession is within the notice, knowledge of the defendant. Hence, it is also established with a credible piece of evidence that the plaintiff’s possession is “open, known and hostile” to the actual owner (defendants).
06. Now, consider whether his possession was exclusive, undisturbed, and "continuous" for the statutory period. In this respect, oral testimony could be instrumental to make a decision thereon. The PW-01 stated that the landed property described in the schedule to the plaint has been in possession of the plaintiff from the lifetime of their predecessor over a period of 40 years by way of adverse possession of the suit lands. In the inception, there was an oral exchange transaction between the fathers of the plaintiffs and defendants. By way of that exchange, the defendants' father took 16 decimal of lands comprising plot No. 150 of the SA khatian No. 52, and the plaintiff’s father took the suit lands. Subsequently, the RS record was wrongly prepared in the name of the defendants’ father Shahban. The plaintiffs thus claims that although the RS recorded tenant of the landed property described in the schedule to the plaint is the father of the defendants, Shahban, they (defendants) are completely out of the possession of the suit lands for over 40 years.
07. In evidence, the plaintiff-side depends on the premise that the suit landed property has been in possession of the plaintiff from the lifetime of their predecessor by way of adverse possession of the suit lands; and that period already becomes over a period of 40 years. Apparently, although the plaintiffs mention no starting point of adverse possession, they admitted [PW-01] that the defendants made threats to them for dispossession from the suit lands on 10.05.2015. So, the statutory period could be reckoned reversely from the ending point of the plaintiffs’ alleged peaceful and continuous possession.
08. The PW-01 further claims in his evidence that he has himself been cultivating the suit lands, by establishing betel fields the last five years. He also added that his father cultivated paddy on the suit lands too. But the PW-03 stated that one “Jamal” establishes the betel field upon agreement. The other two witnesses [PW-02 and 03] only certify that there is a betel field on the suit lands and the plaintiffs are in possession of it. So, it is noticeable that none supported the plaintiffs (PW-01) on the fact of their predecessor’s paddy cultivation over a certain period. What becomes vivid is that PW-01 and PW-03 added a fact of betel field, which has been installed just five or six years ago. Interestingly, PW-03 deposed as such in September of 2019 and at best six-year back goes in 2013. The defendants in their pleading conspicuously stated that the plaintiffs made them out of possession in the first half of 2013. Even, the DW-02 added that the plaintiffs along with “Jamal” had dispossessed the defendants 6/7 years ago. Accordingly, there arises a material point that goes antithesis to the plaintiffs’ proposition.
09. Moreover, both PW-03 and DW-02 stated that one “Jamal” establishes the betel field upon agreement. Both are the most competent witnesses as they have lands adjacent to the suit lands. As aforesaid, the DW-02 added that the plaintiffs along with “Jamal” had dispossessed the defendants 6/7 years ago. The fact is that Mr. “Jamal” currently cultivating the suit lands is “not examined” before the court. Although the plaintiffs’ witness PW-03 made an addendum of Jamal’s episode, non-examination of Mr. Jamal before the court becomes mischievous to the plaintiffs under section 103 of the 1872 Evidence Act (the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence). So, it is deducible that the plaintiffs have not been able to discharge such an onus legally cast on him.
10. Even, if the plaintiff’s evidence in this regard is considered as it were, the plaintiffs' positions become unsupportive with another witness like the PW-03. Plus, the non-examination of Mr. Jamal procreates adverse presumption against the plaintiffs under section 114 (G) of the 1872 Evidence Act. For that reason, there arises another fact that also goes antithetical to the plaintiffs’ discourse of evidence. That being such, it is decisive that the evidence of the plaintiff coterie carries them nowhere in the proof of their claim of exclusive, continuous, and undisturbed possession for over the statutory period. The legal position counsels that the possession must be adequate in continuity, in publicity and in the extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, and hostile and continued over the statutory period, which is 12 years from the date of alleged dispossession [vide Art. 142 of the 1908 Limitation Act]. Hence, the whole fabric of the materials on record persuades the court to opine that the plaintiffs should suffer from such an annihilating position.
11. Furthermore, on careful consideration of the materials on record, it also transpires that in the case of declaration of title based on adverse possession, material consideration is the question of adverse possession is to be determined on the basis of the specific averment made in the plaint. In our case, the plaintiffs' pleading enumerates that an oral exchange was executed between the fathers of both plaintiffs and defendants. In that exchange transaction, the defendants' father took 16 decimal of lands comprising plot No. 150 of the SA khatian No. 52, and the plaintiff’s father took the suit lands. In cross-examination, the PW01 stated that Saibot, Kamal, and Ashraf know about that exchange. Saibot deposed as PW-02 who testified that he was yet to be borne at the time of exchange. PW-03 & PW-04 having lands just adjacent to the suit lands are found totally silent about the plaintiffs’ specific fact- “oral exchange”. So, the PW-01 remains unsupported by other witnesses adduced by him. In addition, since RS record was prepared in the name of the defendant's predecessor one Shahban, not in the name of the plaintiff’s predecessor. Consequently, the plaintiffs are precluded from claiming the presumptive value of the latest Record of Rights.
12. Interestingly, the DW-01 convincingly states in his cross-examination a basis of his dispossession from the suit lands, that is to say, the suit lands situate on the western side adjacent to the other lands of the plaintiffs. As such, it appears that the so-called basis of adverse possession on the specific averment made in the plaint has not been proved with credible and weighty evidence. Additionally, there comes in the pertinence of the dicta observed by the Privy Council [vide 28 AIR 1934 PC 23] that “the ordinary classical requirement of adverse possession is that it should be “nec vi nec clam, nec precario” (without force, without secrecy, without permission). Pertinently, the use of “force” to dispossess a true owner seemingly affects the fine-terrain of the court’s discretionary and equitable relief. Pertinently, another cardinal principle also resounds here that although the plea of adverse possession can be used both as a sword and as a shield, a person pleading adverse possession has no equities in his favor, simply because, he is trying to defeat the rights of the true owner [vide 2015 (5) ALT 634]. Thus, it is for the plaintiff to clearly plead and establish all facts necessary for adverse possession.
13. However, it also appears that the defendants did not take the plea that the plaintiffs are now in possession, by way of permissive possession, or as the co-owner of the land claiming ownership by way of adverse possession, or, as part performance in according to an agreement to sell as provided under Section 53A of Transfer of Property Act, 1882. So, any discussion about these points fairly stands outside the ambit of the present context.
14. In fact, the court understands that adverse possession is also known as squatter’s rights. Basically, the term ‘adverse possession’ is not defined anywhere in the Limitation Act, as it is not a positive right and merely a negative and consequential right, which is based on the negligence or inaction on the part of the rightful owner of the land to come forward and take legal recourse in case any person is in hostile possession of his land. The relevant law is that only having long continuous possession is not enough to perfect title by adverse possession and all other ingredients, that are hostile, exclusive, and uninterrupted possession for 12 years, are also necessary. So, since the plaintiffs are trying to defeat the rights of true owner (defendants), it is for them to clearly plead and establish all facts necessary to establish his adverse possession. But here, the court is of the view that the plaintiffs are not found to be able to prove and establish their adverse possession of the suit lands.
15. No doubt, this suit is for declaration of title to the suit land on the basis of adverse possession. In short, title is a legal term that refers to an interest and ownership of something. In jurisprudential sense, title to property thus refers to ownership of the property, meaning that you have the rights to use that property. On the other hands, ownership to lands refers to an aggregate of all the rights a person has with those lands that he owns. Particularly, the concept of ownership flows from that of possession [vide A Textbook of Jurisprudence, G. W. Paton, (1973) OUP, p. 539, 546]. Accordingly, it can be said that when you have ownership, then you have only ownership; and when you have title, then you have ownership as well as title. Here is the germane fact is that unless the enjoyment of the property is accompanied by adverse animus for a statutory period, mere possession would not be sufficient to mature the title to the property by adverse possession. Therefore, it is the courts’ view that although the plaintiff’s current possession over the suit lands in entirety has been proved with credible and weighty evidence; they are in legal parlance not adjudged to be entitled to the suit lands by way of adverse possession.
In dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter upon a detail discussion of the question of onus. The reason is simple: the whole fabric of the evidential edifice is before the court; which finds no difficulty in arriving at a conclusion with regard to the issues in discussion. So, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that the plaintiff’s title through adverse possession to the suit lands is not proved and established with unimpeachable evidence. Hence, this issue is not settled in the plaintiff’s favor.
Issue No. 1 and 4:
For brevity, convenience and correlation, all the issues are taken together in discussing the matter in the suit. These issues are certainly crucial in point of laws and facts for being related to the questions of the maintainability and eligibility for getting relief sought for in the Plaint. On perusal of the suit materials, the court is of opinion that this is a competent court to grant relief as prayed for in this suit. But, as aforesaid, since it appears to the Court that the plaintiffs have not been able to prove on their own strength with credible pieces of evidence that the plaintiffs have acquired title to the suit land by way of adverse possession, the court finds adequate reasons to hold that the instant suit is not maintainable in its present form and manner. Furthermore, as such, because of all of the issues discussed above, it is thus held that since the plaintiffs have not been successful in proving all issues in their favor, the plaintiffs are not adjudged to be entitled to get relief as prayed for. And thus, it is decided that the suit deserves to be dismissed on contest.
Court fee paid is sufficient.
Hence,
it is ORDERED that
the suit be dismissed on contest against the defendants without any order as to costs.
(Composed and corrected by me)