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Title Suit No. 13 of 2011Page-1

HIGH COURT FORM NO. J(2)HEADING OF JUDGMENT IN ORIGINAL SUIT

PRESENT: Md. N. A. Laskar, AJS. Munsiff No.1, Tinsukia, District. Tinsukia, Assam.

On this 7th day of November, 2013

Title Suit No. 13/2011.

Borguri Nibonuwa Yubak Sansthapan Santha

(an association duly registered under the Societies Registration Act, 1860, represented by its Secretary, viz. Sri Hari Singh Gohain, having its office at Borguri, Near Court Tiniali, P.O. Borguri, P.S. & Dist- Tinsukia, Assam)…………….…..Plaintiff.

Versus

1. Sri. Laba Hazarika @ Lebel Hazarika.S/O. Lt. Phuleshwar Hazarika.

2. Smt. Chitralekha HazarikaW/O. Sri Laba Hazarika @ Lebel Hazarika.Both are of Borguri, Near Court Tiniali,P.S. & Dist. Tinsukia, Assam.….............. Defendants.

This suit coming on final hearing on 07/10/2013, in

the presence of Md. N. A. Laskar, Munsiff No.1, Tinsukia,

1. Sri. B. Dutta, Ld. Advocate for the plaintiff.2. Sri. P. K. Borah, Ld. Advocate for the

defendants.

And having stood for consideration on this day the

court delivered the following Judgment:-

JUDGMENT

1. This is a suit for declaration, recovery of possession,

permanent injunction and other relieves.


2. Counter claim for declaration of right, title and

interest by way of adverse possession, cancellation of gift deed

and the deed of relinquishment, injunction alongwith other

relieves.

THE CASE OF THE PLAINTIFF

3. The plaintiff is a registered association, represented

by its secretary instituted this suit stating that the plaintiff is

the absolute owner of a plot of land mentioned in the

Schedule-A of the plaint which was accepted by way of

registered gift deed No. 1738 of 1987 executed by donor Md.

Isa. The plaintiff further stated that in order to provide

accommodation and earning source to its members the total

land of the association divided into the 61 plot and allotted to

the members on lease basis. The plaintiff further stated that

upon the approach and request of the defendant No.1 and in

the month of December, 1987 the plaintiff allowed the

defendants to stay in plot No. 5 of its land as permissive

occupants. The plaintiff further stated that similarly the plot

No. 6 and 7 of its land were let out to Sri. Sanjay Kumar Gohain

and Smti. Dibyalata gohain and the plot No. 5 have been

allotted to Smti. Hiramoni Boruah, which is in occupation of

defendants. The plaintiff further stated that upon the request of

defendant No. 1 and for the sake of establishment of business

of a small pan shop the plaintiff association on humanitarian

consideration allotted the plot No. B-29, measuring 26 x 37 Sq.

feets in favour of the defendant No. 1 and upon the request of

defendant No.1 the plaintiff association also advanced a sum of

Rs. 1000/- as financial help to the defendant No.1 on

15/06/1988. The plaintiff further stated that during the

occupation and stay in plot No. 5 the defendants also occupied

the plot No. 6 and 7 of the plaintiff land and the plaintiff

knowing the fact asked the defendants to shift to the plot No.

B-29, which was allotted to them. The plaintiff further stated


that in spite of demand and request to the defendants they

failed to vacate the schedule-B land (plot No. 5, 6 and 7)

though the defendant agreed to vacate the same and to shift

to the plot No. B-29. The plaintiff further stated that in the first

week of February, 2007 the defendants illegally and

unauthorisely started constructed of semi pucca house on the

Schedule-B land without the consent of the plaintiff and in that

respect Tinsukia Development Authority also issued notice to

the defendant No. 1 and finally fine imposed upon the

defendant No. 1 for such illegal and unauthorized construction.

The plaintiff further stated that the matter of illegal and

unauthorized construction by the defendant was reported to

the police and on 17/02/2007 and a settlement was arrived in

between the plaintiff and defendants and a letter was send to

the Officer-In-Charge of Tinsukia P.S about the settlement by

which the defendants though agreed to shift themselves to the

plot No. B-29, but failed. Hence the plaintiff instituted this suit

for declaration, eviction of defendants, recovery of possession,

permanent injunction along with other relieves.

THE CASE OF THE DEFENDANT

AND THE COUNTER CLAIM

4. The defendants contested this suit by way of

submitting written statement and also preferred counter claim

against the claim of the plaintiff. In the written statement the

defendant stated that the suit is not maintainable; the plaintiff

miserably failed to make out a case and to establish its legal

right against the defendants; the suit is not properly valued;

the suit is false, frivolous, baseless and vexatious designed to

cause wrongful loss to the defendants; there is no cause of

action of this suit; the plaintiff concealed the material fact and

not turn up with clean hand; the suit is barred by limitation and

the suit is bad for non-joinder of necessary parties. The

defendants further stated that form June, 1987 they are

residing over 01 Katha land under Dag No. 162/172 of P.P.


No.21 of Bazaltoli Gaon under Rongagora Mouza, Dist-Tinsukia

(Hereinafter referred as the land involved in the counter claim).

The defendants further stated that during the course of their

living over the land involved in the counter claim they filled up

earth as it was law lying land and by way of construction of

semi pucca house they are living peacefully, publicly and

notoriously without any claim from any quarter. The defendants

further stated that by virtue of long possession of more than 12

years they are entitled to the ownership of the plot of land by

way of adverse possession. The defendants further stated that

the plaintiff has no right to sue as the plaintiff association was

not registered on 21/11/1987 i. e. on the date of acceptance of

gift and the gift is void and would not confer any right, title and

interest to the plaintiff. The defendants in their written

statement denied the permissive occupancy as pleaded by the

plaintiff and also denied the fact of allotment of land of plot No.

B-29 to them including the extension of financial help of Rs.

1000/- and the question of shifting from Schedule-B land. The

defendants further stated that the plaintiff always threatening

them to grab the land and once with the help of ASEB,

Tinsukia, disconnected the electricity supply in their residence

though they got it re-connected in pursuance of the order

passed by the Hon’ble Gauhati High Court. The defendant also

denied the fact of any settlement made for their agreement to

shift form schedule-B land and writing of any letter to the O/C,

Tinsukia P.S. to that effect. The defendant prayed for

declaration that the gift No. 1738 dated 21/11/1987 is

fraudulent, void, and inoperative and for further declaration

that the deed of relinquishment No. 1739 dated 27/11/1987 is

void and in-operative. The defendants finally claimed the land

involved in the counter claim by way of adverse possession and

confirmation of their possession over the same. The defendant

prayed for dismissal of the suit and decree of counter claim.

ISSUES


5. In this suit, the then Ld. Munsiff No.2 vide order

dated 03/09/2011, framed issues but at the time of argument

of this suit no such issues found in the record. Upon the

pleading of the parties and after hearing both the sides this

court vide order dated 07/10/2013 framed as many as 13

(thirteen) issues for determination of this suit. On and after

going through the issues framed by this court, both the sides

agreed to the fact that they will not adduce any more evidence

and constrained to the evidence already recorded in this suit.

The issues framed for determination of this suit are reproduced

hereunder:

1) Whether there is a cause of action of this suit?

2) Whether the suit is maintainable?

3) Whether the suit is barred by limitation?

4) Whether the plaintiff is the owner of the land

mentioned in the schedule-A of the plaint?

5) Whether the defendant No.1 came in occupation

of the plot No. 5 of the plaintiff’s land as permissive occupant

and during the course of his stay also occupied the plot No. 6

and 7 as permissive occupants?

6) Whether the defendants are in occupation of the

land measuring 01 Katha covered under Dag No.162/172,

Periodic Patta No. 21, of Bazaltoli Goan, Mouja-Rangagora,

District-Tinsukia as absolute owner by way of construction of

semi pucca house since the month of June, 1987?

7) Whether the defendants has been in possession

of the land measuring 01 Katha covered under Dag

No.162/172, Periodic Patta No. 21, of Bazaltoli Goan,

Mouja-Rangagora, District-Tinsukia as in adverse to the owner

of the Land Since the month of June, 1987?

8) Whether the gift deed No. 1738 dated 21/11/1987

and the deed of relinquishment No. 1739 dated 21/11/1987 is

void, illegal and inoperative?

9) Whether the defendant No.1 in the first week of

February, 2007 illegally and unauthorisely started construction


of a semi pucca house on the suit land without consent of the

plaintiff?

10) Whether the defendants failed to vacate the suit

premises mentioned in the schedule-B of the plaint in spite of

the request and demand made by the plaintiff?

11) Whether the plaintiff is entitled to get a decree

as prayed for?

12) Whether the defendants are entitled to get a

decree as prayed by way of counter claim?

13) What are the relief (s) the parties are entitled

to?

6. Both the sides in support of their pleadings adduced

evidence in this suit. Plaintiff side has examined 6 (six)

witnesses including its office bearer and two official witnesses

from office of the Senior Sub-Registrar, Tinsukia and Tinsukia

Development Authority. The defendant side also examined one

of the defendants as sole witness.

7. Heard the argument advanced by the Ld. Counsel

for the both sides. From the pleadings of the parties and after

due consideration of the both documentary and oral evidence

of the parties this court arrived at the issue wise findings as

follows:

DETERMINATION OF THE I SSUES ,

DISCUSSION, DICISIONS AND REASONS THEREOF

8. Issue No. 4. Whether the plaintiff is the owner

of the land mentioned in the schedule-A of the plaint?

AND

Issue No. 6: Whether the defendants are in

occupation of the land measuring 01 Katha covered

under Dag No.162/172, Periodic Patta No. 21, of

Bazaltoli Goan, Mouja-Rangagora, District-Tinsukia as


absolute owner by way of construction of semi pucca

house since the month of June, 1987?

AND

Issue No. 7. Whether the defendants has been

in possession of the land measuring 01 Katha covered

under Dag No.162/172, Periodic Patta No. 21, of

Bazaltoli Goan, Mouja-Rangagora, District-Tinsukia as in

adverse to the owner of the Land Since the month of

June, 1987?

AND

Issue No.8. Whether the gift deed No. 1738

dated 21/11/1987 and the deed of relinquishment No.

1739 dated 21/11/1987 is void, illegal and inoperative?

9. All the four issues are interlinked with one another

and the basis of the suit and counter claim, hence taken jointly.

The plaintiff side claimed ownership of the land including the

suit land as accepted by way registered gift deed No. 1738

dated 21/11/1987. The burden lies on the plaintiff side to prove

the fact. Section 91 of the Indian Evidence Act, 1872 provides

that the grant or disposition of the property where reduced in

the form of a document, the only evidence can be given by the

document itself or the secondary evidence of the contents of

the document, which is admissible under the law. PW-1 in his

evidence deposed that the plaintiff accepted the gift of the

schedule-A land which was executed by Md. Isa and registered

on 21/11/1987 as gift deed No. 1738 of 1987. PW-1 in his

evidence also exhibited the said gift deed as Ext-2. PW-2 is the

vice president of the plaintiff association, PW-3 and PW-4 are

the members of the plaintiff association in their evidence also

corroborated the fact that the plaintiff association became the

owner of the land by way of acceptance of the gift made by

Md. Isa. PW-5, the L. D. Asstt. of the office of the Sub-Register,

Tinsukia deposed that the said gift deed registered vide gift

deed No. 1738 dated 1987 and the same is recorded in the

volume book of the office. PW-5 in her evidence also marked


the copy of gift deed as Ext-17. PW-5 also deposed that the

payment of stamp, registration fees of the said deed recorded

in the fee book register of the office and the Ext-19 is the

relevant entry. The evidence of the PW-5 is found corroborated

with the evidence of the other PW’s in respect of registration of

gift deed. The defendant side pleaded in the counter claim for

cancellation of the both gift deed and the deed of

relinquishment. DW-1, one of the defendant deposed that the

plaintiff association was not registered at the time of execution

and registration of the gift deed. DW-1 further deposed that the

gift of schedule-A land accepted by Hemanta Guhain and the

Hari Binod Neog for and on behalf of association is void and

illegal. DW-1 further deposed that the plaintiff association was

registered after 21 years of the acceptance of gift and the said

gift could not confer any title, right and interest to the plaintiff

association. PW-1 in cross examination admitted that at the

time of acceptance of the gift from Md. Isa, the plaintiff was not

a registered association under the Societies Registration Act.

On perusal of the Ext-2 and Ext-3, it appears that the president

and secretary of the plaintiff association accepted the gift and

executed the deed of relinquishment. The non-registration of

the plaintiff association at the time of acceptance of the gift or

execution of the deed of relinquishment has no legal bar about

its validity. The registration of an association conferred some

sort of privilege in it but its non-registration cannot be a

hindrance either to the acceptance of the gift or to the

execution of the deed of relinquishment. Being the gift deed

and the deed of relinquishment is found to have executed and

registered within the ambit of law, there cannot be any

hesitation to say that the plaintiff association is the absolute

owner of the schedule-A land mentioned in the plaint.

10. The defendant side further pleaded that since the

month of June, 1987, they are residing over the land involved

in the counter claim. DW-1 in his evidence deposed the said

fact and stated that the occupation of the said land by them is


of right, publicly, notoriously and without any claim from any

corner. DW-1 further deposed that he is entitled to the

ownership of the land by way of adverse possession. In cross

examination DW-1 also stated that since 09/06/1987, he has

been residing over the land involved in the counter claim. DW-1

in his evidence also exhibited the documents as Ext-B, Ext-C

and Ext-D as a proof of the fact that since the year 1987, he is

residing in the land involved in the counter claim by way

construction of house but in cross examination he admitted

that after the institution of this suit he obtained those

documents. The complicacy in this suit is that plaintiff side

pleaded that the defendants has been allowed to live as

permissive occupant. One issue is also framed on that point

and to be decided later. On the contrary the defendant side

claimed that since the month of June, 1987 he has been

residing over the land and admittedly the same is before the

acceptance of the gift deed by the plaintiff. DW-1 in his cross

examination admitted that Md. Isa was the owner of the suit

land. Admittedly, had the defendants was in possession of the

land in the month of June 1987 and prior to the gift of

schedule-A land by Md. Isa, his right, if any over the land

involved in the counter claim has been sold by Md. Isa to the

plaintiff on 21/11/1987. The defendant has not turn up with a

claim against Md. Isa within the limited time prescribed under

the law and also not challenged the gift on the ground that the

land under his possession has been sold by Md. Isa. DW-1 in his

evidence also exhibited the copy of order dated 17/09/2007

passed by the Hon’ble Gauhati High Court in W.P.(C) No. 4865

of 2007 as Ext-A by which he got the order of electric

connection which was disconnected upon the complaint of

plaintiff association. On perusal of Ext-A, it is found that there

is nothing in respect of claim and counter claim raised by the

parties and no right can be decided on the basis of the same.

11. Ld. Counsel for the plaintiff relied the decisions of

Hon’ble Supreme Court, (1) reported in (2012) 5 SCC 370,


in Maria Margarida Sequeira Fernandes Vs. Erasmo Jack

De Sequeira (Dead) through LR’s, and (2) reported in

(2012) 6 SCC 430, in A. Shanmugam Vs. Ariya Kshatriya

Rajakula Vamsathu Madalaya Nandhavana Paripalanai

Sangam. The first decision has been followed in the later and

the principles of possession as well as the adverse possession

were discussed in detail in both the decisions. The Para Nos. 61

to 70 of the Maria Margarida’s (Supra) is a long thesis and for

the interest of discussion the same is reproduced as under:

“61. In civil cases, pleadings are extremely important for

ascertaining the title and possession of the property in question.

62. Possession is an incidence of ownership and can be

transferred by the owner of an immovable property to another such

as in a mortgage or lease. A licensee holds possession on behalf of

the owner.

63. Possession is important when there are no title

documents and other relevant records before the Court, but, once the

documents and records of title come before the Court, it is the title

which has to be looked at first and due weightage be given to it.

Possession cannot be considered in vacuum.

64. There is a presumption that possession of a person,

other than the owner, if at all it is to be called possession, is

permissive on behalf of the title-holder. Further, possession of the

past is one thing, and the right to remain or continue in future is

another thing. It is the latter which is usually more in controversy

than the former, and it is the latter which has seen much abuse and

misuse before the Courts.

65. A suit can be filed by the title holder for recovery of

possession or it can be one for ejectment of an ex-lessee or for

mandatory injunction requiring a person to remove himself or it can

be a suit under Section 6 of the Specific Relief Act to recover

possession.

66. A title suit for possession has two parts - first,

adjudication of title, and second, adjudication of possession. If the

title dispute is removed and the title is established in one or the

other, then, in effect, it becomes a suit for ejectment where the

Defendant must plead and prove why he must not be ejected.


67. In an action for recovery of possession of immovable

property, or for protecting possession thereof, upon the legal title to

the property being established, the possession or occupation of the

property by a person other than the holder of the legal title will be

presumed to have been under and in subordination to the legal title,

and it will be for the person resisting a claim for recovery of

possession or claiming a right to continue in possession, to establish

that he has such a right. To put it differently, wherever pleadings and

documents establish title to a particular property and possession is in

question, it will be for the person in possession to give sufficiently

detailed pleadings, particulars and documents to support his claim in

order to continue in possession.

68. In order to do justice, it is necessary to direct the

parties to give all details of pleadings with particulars. Once the title

is prima facie established, it is for the person who is resisting the title

holder's claim to possession to plead with sufficient particularity on

the basis of his claim to remain in possession and place before the

Court all such documents as in the ordinary course of human affairs

are expected to be there. Only if the pleadings are sufficient, would

an issue be struck and the matter sent to trial, where the onus will be

on him to prove the averred facts and documents.

69. The person averring a right to continue in possession

shall, as far as possible, give a detailed particularized specific

pleading along with documents to support his claim and details of

subsequent conduct which establish his possession.

70. It would be imperative that one who claims

possession must give all such details as enumerated hereunder. They

are only illustrative and not exhaustive.

(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession -whether he purchased the property

or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he

has taken it on rent, how much is the rent, license fee or lease

amount;


(h) If taken on rent, license fee or lease -then insist on rent deed, license deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living

with him, in what capacity; as family members, friends or servants

etc.;

(j) subsequent conduct, i.e., any event which might have extinguished

his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in

possession.”

12. Ld. Counsel for the plaintiff also placed reliance to

the decision of Hon’ble Supreme Court, reported in (2006)

7 SCC 570, in T. Anjanappa and others Vs. Somalingappa

and another. In the said decision the principles behind the

adverse possession also enumerated. In the said judgment, the

decisions of (a) Vidya Devi Vs. Prem Prakash, reported in

(1995) 4 SCC 496 and (b) Annasaheb Bapusaheb Patil Vs.

Balwant, reported in (1995) 2 SCC 543 also discussed. In the

case of Rakhal Ch. Das Vs. Promode Ch. Das and others, reported

in 2011 (4) GLT 141, The Hon'ble Gauhati High Court while uphold

the adverse possession of the defendant held that no person shall have

title over property if his right has been extinguishing due to adverse

possession. The Para No.18 and 19 of the said Judgment has been

reproduced as under:

"18. Hon'ble Supreme Court in Chatti Konati Rao and

Ors. v. Palle Venkata Subba Rao: AIR 2011 SC 1480 underlining the

law relating to adverse possession observed as follows:

12. We have bestowed our thoughtful consideration to

the submission advanced and we do not find any substance in the

submission of Mr. Bhattacharya. What is adverse possession, on

whom the burden of proof lie, the approach of the court towards such

plea etc. have been the subject matter of decision in a large number

of cases. In the case of T. Anjanappa v. Somalingappa: (2006) 7

SCC 570, it has been held that mere possession however long does


not necessarily mean that it is adverse to the true owner and the

classical requirement of acquisition of title by adverse possession is

that such possessions are in denial of the true owner's title. Relevant

passage of the aforesaid judgment reads as follows:

“20. It is well-recognized proposition in law that mere

possession however long does not necessarily mean that it is adverse

to the true owner. Adverse possession really means the hostile

possession which is expressly or impliedly in denial of title of the true

owner and in order to constitute adverse possession, the possession

proved must be adequate in continuity, in publicity and in extent so

as to show that it is adverse to the true owner. The classical

requirements of acquisition of title by adverse possession are that

such possession in denial of the true owner's title must be peaceful,

open and continuous. The possession must be open and hostile

enough to be capable of being known by the parties interested in the

property, though it is not necessary that there should be evidence of

the adverse possessor actually informing the real owner of the

former's hostile action.”

13. What facts are required to prove adverse possession

have succinctly been enunciated by this Court in the case of

Karnataka Board of Wakf v. Government of India and Ors:

(2004) 10 SCC 779. It has also been observed that a person pleading

adverse possession has no equities in his favour and since such a

person is trying to defeat the rights of the true owner, it is for him to

clearly plead and establish necessary facts to establish his adverse

possession. Paragraph 11 of the judgment which is relevant for the

purpose reads as follows:

“11. In the eye of the law, an owner would be deemed to

be in possession of a property so long as there is no intrusion.

Non-use of the property by the owner even for a long time won't

affect his title. But the position will be altered when another person

takes possession of the property and asserts a right over it. Adverse

possession is a hostile possession by clearly asserting hostile title in

denial of the title of the true owner. It is a well-settled principle that a

party claiming adverse possession must prove that his possession is

"nec vi, nec clam, nec precario", that is, peaceful, open and


continuous. The possession must be adequate in continuity, in

publicity and in 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, hostile and continued over

the statutory period. S.M. Karim v. Bibi Sakina: AIR 1964 SC

1254, Parsinni v. Sukhi: (1993) 4 SCC 375 and D.N.

Venkatarayappa v. State of Karnataka: (1997) 7 SCC 567.

Physical fact of exclusive possession and the animus possidendi to

hold as owner in exclusion to the actual owner are the most

important factors that are to be accounted in cases of this nature.

Plea of adverse possession is not a pure question of law but a

blended one of fact and law. Therefore, a person who claims adverse

possession should show: (a) on what date he came into

possession, (b) what was the nature of his possession, (c)

whether the factum of possession was known to the other

party, (d) how long his possession has continued, and (e) his

possession was open and undisturbed. A person pleading

adverse possession has no equities in his favour. Since he is trying to

defeat the rights of the true owner, it is for him to clearly plead and

establish all facts necessary to establish his adverse possession.

Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma : (1996) 8

SCC 128.”

14. In view of the several authorities of this Court, few

whereof have been referred above, what can safely be said that mere

possession however long does not necessarily mean that it is adverse

to the true owner. It means hostile possession which is expressly or

impliedly in denial of the title of the true owner and in order to

constitute adverse possession the possession must be adequate in

continuity, in publicity and in extent so as to show that it is adverse

to the true owner. The possession must be open and hostile enough

so that it is known by the parties interested in the property. The

Plaintiff is bound to prove his title as also possession within 12 years

and once the Plaintiff proves his title, the burden shifts on the

Defendant to establish that he has perfected his title by adverse

possession. Claim by adverse possession has two basic elements i.e.

the possession of the Defendant should be adverse to the Plaintiff

and the Defendant must continue to remain in possession for a period

of 12 years thereafter. Animus possidendi as is well known a


requisite ingredient of adverse possession. Mere possession does not

ripen into possessory title until possessor holds property adverse to

the title of the true owner for the said purpose. The person who

claims adverse possession is required to establish the date on which

he came in possession, nature of possession, the factum of

possession, knowledge to the true owner, duration of possession and

possession was open and undisturbed. A person pleading adverse

possession has no equities in his favour as he is trying to defeat the

rights of the true owner and, hence, it is for him to clearly plead and

establish all facts necessary to establish adverse possession. The

courts always take unkind view towards statutes of limitation

overriding property rights. Plea of adverse possession is not a pure

question of law but a blended one of fact and law.

19. The Defendants need not prove facts admitted by

the Plaintiff. In the instant case, the basic requirement for exulting

adverse possession by the Defendants, has been admitted by the

Plaintiff. Bearing in mind, the principles of Chatti Konati Rao and

Ors. v. Palle Venkata Subba Rao (supra), when we proceed to

consider the facts of this case, we find that Defendants have

admittedly come to occupy the suit land by denying the right of the

titleholder i.e. Plaintiff-Appellant. The Defendants possessed the suit

land adversely to the interest of the Plaintiff-Appellant after two years

of the orders of allotment in the name of the Plaintiff. The facts and

circumstances discussed above clearly shows that

Defendants-Respondents proved that they have perfected their title

by adverse possession over the suit land, by forcibly residing in the

suit land for more than 12 years, denying the right of the true owner.

The cause of action for filing the suit by the Plaintiff-Appellant arose in

the year 1985. However, the Plaintiff-Appellant filed the suit in the

2000 for recovery of possession and eviction of the Defendants

Respondents long after 12 years. There is evidence to show that the

Defendants asserted hostile title to the suit property to the

knowledge of the true owners at all the time before the present suit."

13. From the aforesaid authorities and the principles of

adverse possession enumerated thereto, this court finds that

the defendant failed to claim the adverse possession against

the original owner (Md. Isa) and claimed the same against the


plaintiff. The defendant challenged the ownership of plaintiff by

way of cancellation of gift deed and the deed of

relinquishment. The concept of nominal ownership of the

plaintiff as pleaded by the defendant is found foreign to the law

of adverse possession. The defendants received the summons

on 24/03/2011 and thereafter obtained the Ext-B/C and D and

those authorities are not authorized to issue certificate of

possession of anybody. DW-1 in cross examination admitted

that there is no document in his name in respect of suit land.

The details as required to be substantiated towards the fact of

adverse possession i. e. the owner of the property, title of the

property, person in possession of title documents, the date

from which the claimant is in possession, how the claimant

came in possession, in what capacity the claimant is in

possession, subsequent conduct or event by which the right or

title extinguished and the basis under which the claimant

wanted to retain in possession is found absent in the pleadings

as well as evidence of the defendant. The claim of cancellation

of the gift deed and the deed of relinquishment is also found a

fruitless exercise of the defendants. Under the scenario, this

court finds that the plaintiff is the owner of the Schedule-A land

as mentioned in the plaint and the possession of the land by

the defendants involved in the counter claim is not in adverse

to the owner of the land. The issues No. 4 and 8 are decided in

favour of the plaintiff and the issues No. 6 and 7 are decided

against the defendants.

14. Issue No. 5. Whether the defendant No.1 came

in occupation of the plot No. 5 of the plaintiff’s land as

permissive occupant and during the course of his stay

also occupied the plot No. 6 and 7 as permissive

occupants?

15. The plaintiff in the plaint stated that the defendants

came in occupation of its land of plot No.5 as permissive


occupants and during the course of his occupation he also

started occupying the plot No. 6 and 7 and in spite of demand

and request the defendant failed to vacate the same. The

defendants denied the facts. As discussed in issues No. 6 and 7

the defendants failed to prove the basis of their possession of

the suit land as pleaded by them. The fact of permissive

occupancy is denied by the defendants. The burden lies on the

plaintiff to prove the fact that the defendants are permissive

occupants. Ld. Counsel for the defendants placed reliance on

the decision of Hon’ble Gauhati High Court, reported in

{2006 (48) AIC 233 (GAU.,H.C.)}, in Md. Enayat Ali Vs.

Md. Siddique Ali and 29 others, wherein it was held that the

plaintiff cannot take the advantage of weakness of the

defendant’s evidence in support of the defendant’s pleas. The

said suit was decided against the plaintiff as the plaintiff side

failed to prove their case by convincing and reliable evidence.

In the suit in hand, the witnesses of the plaintiff in their

evidence categorically corroborated that the defendants came

in occupation of the plot No.5 of the plaintiff land as permissive

occupants and during the course of their stay in plot No.5 they

also occupied the plot No. 6 and 7. The facts involved in the

said decision is related to the proof of title by sale deed

claimed from both sides and in the instant suit, it is based on

title and adverse possession. The decision is distinguishable in

both the aspect of facts and law. The burden of adverse

possession is on the person who claimed it and the defendants

of this suit failed to do so. The corroborative evidence of the

plaintiff and its witnesses found probable to the fact that the

defendants are permissive occupants. The admission of

possession by the defendants as appeared in cross

examination of the plaintiff witnesses, non-production of the

lease deed or the resolution of the association has no relevancy

in this suit and the defendants are nobody to challenge it.

Hence this issue also decided in favour of the plaintiff and

against the defendants.


16. Issue No. 9. Whether the defendant No.1 in

the first week of February, 2007 illegally and

unauthorisely started construction of a semi pucca

house on the suit land without consent of the plaintiff?

AND

Issue No. 10. Whether the defendants failed

to vacate the suit premises mentioned in the schedule-B

of the plaint in spite of the request and demand made

by the plaintiff?

17. In the plaint, it is stated that the defendants were

asked to shift to the allotted plot No. B-29 and they also agreed

to shift from the Schedule-B land. The plaintiff further stated

that the defendants started construction of semi pucca house

over the schedule-B land without the consent of the plaintiff

association in the month of February 2007 and Tinsukia

Development Authority issued notice to the defendants for

unauthorized construction. PW-6, the Senior Assistant of the

Tinsukia Development Authority deposed that on receipt of

complaint an enquiry was made and finally notice issued to the

defendants. PW-6 in his evidence also exhibited the notice as

Ext-10 and Ext-11. PW-6 in cross examination admitted that

during inquiry it was found that the defendants are living in the

semi pucca house and no fine realized from the defendants for

such illegal construction. PW-1/2/3 and 4 in their evidence also

stated that the defendants started construction of the semi

pucca house illegally and unauthorisely. PW-1 in his evidence

also exhibited the copies of Ext-10 and 11, which was received

by him as complainant. The case of the defendant is only

denial. The corroborative evidence of the plaintiff witnesses

and the documents found in support of the fact that the

defendants were illegally and unauthorisely started

construction of the semi pucca house in the month of February,

2007. As discussed and decided in the issues No. 5, 6 and 7,

the basis of possession of the Schedule-B land by the

defendants and the basis of his construction work over the said


land is yet to be proved and such circumstances constrained

this court to hold that the defendants have no right to stay

over the schedule-B land as his act and deeds are prejudicial to

the interest of the plaintiff association. Both the issues are also

decided in favour of plaintiff and against the defendants.

18. Issue No. 1. Whether there is a cause of action

of this suit?

19. The cause of action is the bundles of fact, which

necessary for the plaintiff to support his claim and comprises

every synonymous fact. The plaintiff side in the plaint

mentioned the series of cause of actions right from the date of

acceptance of the gift of land and on the date in which the

defendant agreed in writing to vacate the schedule-B land and

to shift to the plot No. B-29. Ld. Counsel for the defendant side

during the course of argument submitted that there is no cause

of action arose in between the year 1988 to 2007 and hence

the suit of the plaintiff must be failed for want of cause of

action. It appears that right of the plaintiff as averred in the

plaint has been infringed and came in question on and from the

February 2007 while the defendant started construction of semi

pucca house without the consent of the plaintiff association.

The fact averred in the plaint from the month of February 2007

is to be construed as the beginning of infringement of the right

to sue accrues for the plaintiff. Hence, it is found that there is

cause of action in this suit. This issue is also answered in

affirmative.

20. Issue No.2. Whether the suit is maintainable?

21. Ld. Counsel for the defendant side argued on the

point that the plaintiff association was not registered at the

time of acceptance of gift and today the association is not in

existence. As discussed above, the fact of non-registration is

not itself disqualified an association to accept the gift by its


president and secretary. The non-submission of the copies of

resolutions, the list of members and map of the land also need

not be a considerable ground towards the maintainability of the

suit. In the pleadings the defendant side failed to specify any

fact touching the maintainability of this suit and the materials

on record does not suggest anything towards the

non-maintainability of this suit. The claim of recovery of

possession and counter claim by way of adverse possession is

required to be adjudicated in this suit. Hence the suit is found

maintainable. This issue is also answered in affirmative.

22. Issue No.3. Whether the suit is barred by

limitation?

23. In the written statement the defendant pleaded that

the suit is barred by limitation but not illustrated the fact as to

how the suit is barred by limitation. During the course of

argument Ld. Counsel for the defendant side placed reliance on

the decision of Hon’ble Supreme Court, reported in 2013

AIAR (Civil) 215, in Board of Trustees of Port of Kandla

Vs. Hargovind Jasraj and another, wherein it was held that

the suit for declaration covered under Article 58 of the

Limitation Act, 1963 is of three years and the period begins to

run from the time when the right to sue accrues. The aforesaid

decision referred by the defendant side is related to the period

of limitation for termination of the lease. The present suit is for

possession of the immovable property and its interest based on

title and etc. The Article 65 of the Limitation Act is found

applicable in this suit instead of Article 58 of the said Act. The

period of limitation under the Article 65 is twelve years from

when the right or interest of the title holder has been infringed.

Hence, the suit is found well within limitation. This issue is

decided in affirmative.

24. Issue No. 11. Whether the plaintiff is entitled

to get a decree as prayed for?


AND

Issue No. 12. Whether the defendants are

entitled to get a decree as prayed by way of counter

claim?

AND

Issue No.13. To what other relief(s) the parties

are entitled?

25. All the issues are relating to relieves and taken

together. From the decision of forgoing issues it appears that

the counter claim of the defendants is required to be dismissed

and the plaintiff is entitled to get a decree of this suit.

CONCLUSION AND ORDER

26. In fine, it is concluded that the counter claim

preferred by the defendants is liable to be dismissed without

cost and the plaintiff is entitled to get the following relieves

towards the decree of this suit:

(a) declaring that the plaintiff is the absolute owner

of the suit property having right, title and interest over and in

respect of the suit property,

(b) declaring that the defendants have no any right

and authority over and in respect of Schedule-B land

mentioned in the plaint and the same is illegal, unauthorized

and unlawful,

(c) the plaintiff is entitled to get the recovery of

possession of the schedule-B property by way of evicting the

defendants and removing all the belongings of them,

(d) the defendants are hereby permanently

restrained from any sort of construction or any other act over

the Schedule-B land which is prejudicial to the interest of the

plaintiff and


(e) the cost of this suit.

27. Prepare a decree accordingly.

28. The Judgment is written, corrected, signed, sealed,

tagged with case record, pronounced and delivered in the open

court on this 7th day of November, 2013.

Munsiff No.1 Tinsukia.

APPENDIX

The Name of witnesses of plaintiffs side :-

PW-1. Sri. Hari Singh Gohain

PW-2. Sri. Hari Binod Neog,

PW-3. Smt. Hiramoni Baruah(Chetia)

PW-4. Smt. Dibyalata Gohain.

PW-5. Smti. Teresa G. Momin.

PW-6. Sri. Niranjan Guhain.

The documents exhibited by the plaintiffs side :-

Exhibit-1. Certificate of Registration of the plaintiff.


Exhibit-2. Deed of Gift No. 1738.

Exhibit-3. Deed of Relinquishment No. 1739.

Exhibit-4/5. Land Revenue Receipts.

Exhibit-6. Mutation Certificate dated 21/03/2005.

Exhibit-7. Certificate copy of Jamabandi of P.P. No. 21.

Exhibit-8. Copy of resolution dated 10/01/2010.

Exhibit-9. Letter of the defendant No. 1 dated 15/06/1988.

Exhibit-10/11. Notices to the defendant No. 1 by TDA.

Exhibit-12/13/14 and 15. The Agreements of lease.

Exhibit-16. The letter of authority.

Exhibit-17. The copy of gift deed No. 1738.

Exhibit-18. The copy of deed of relinquishment No. 1739.

Exhibti-19. The relevant entries in the Fee book register.

The Name of witness of defendants side :-

DW-1. Sri. Laba Hazarika.

The documents exhibited by the defendants side :-

Exhibit-A. Original copy (certificate) of the order in WP(C) 4865

of 2007 of the Guwahati High Court.

Exhibit-B. Original Certificate of the Bazaltoli Juria Namghar.

Exhibit-C. Original Certificate issued by Member No. 1 Panitola Zila Parishad, Tinsukia.

Exhibit-D. Original Certificate issued by the Sarbajanin Okanimoria & Dihingia Gaon Namghar.

Munsiff No.1 Tinsukia.

*****

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