Appearing as a second appeal in a title suit, the court observed that it is not permissible to seek a declaration of title based on adverse possession as that constitutes a shield of defense and not a sword for plaintiffs.
Consequently this second appeal is dismissed at this admission stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Page No.# 1/6
GAHC010266702018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 77/2019
1:SMTI. NASIRA BEGUM AND 4 ORS. D/O- LATE IDBAKSH, R/O- FANCY ALI, WARD NO. 2, P.S. AND DIST.- JORHAT, ASSAM.
2: SMTI. ISA BEGUM W/O- LATE HANIF HUSSAIN
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
3: MD. ROSE HUSSAIN S/O- LATE HANIF HUSSAIN
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
4: SMTI. RUKSANA BEGUM D/O- LATE HANIF HUSSAIN
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
5: SMTI. WAHIDA HUSSAIN W/O- LATE ANOWAR HUSSAIN
Page No.# 2/6
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM
VERSUS
1:MD. RAJU KHAN @ ABJUL KHAN AND 7 ORS. S/O- LATE GHULAM HUSSAIN, R/O- FANCY ALI, WARD NO. 2, P.S. AND DIST.- JORHAT, ASSAM.
2:MD. ASLAM KHAN S/O- LATE GHULAM HUSSAIN
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
3:MD. AKHTAR KHAN S/O- LATE GHULAM HUSSAIN
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
4:MD. IMRAN KHAN S/O- LATE GHULAM HUSSAIN
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
5:MAINUL HUSSAIN S/O- LATE MEHMUD HUSSAIN R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
6:MUSTAK HUSSAIN S/O- LATE MEHMUD HUSSAIN
Page No.# 3/6
R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
7:MASUM BEGUM D/O- LATE MEHMUD HUSSAIN R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM.
8:JARINA BEGUM D/O- LATE MEHMUD HUSSAIN R/O- FANCY ALI WARD NO. 2 P.S. AND DIST.- JORHAT ASSAM
Advocate for the Petitioner : MR A A DEWAN
Advocate for the Respondent :
BEFORE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
JUDGMENT AND ORDER (ORAL)
Date : 08-05-2019
Heard Mr. A. A. Dewan, learned counsel for the appellants.
decree passed in Title Appeal No. 9/2016 by the learned Civil Judge, Jorhat. The suit was filed by the plaintiffs appellants for recovery of possession and eviction of the defendants respondents. Suit was filed in the court of learned Munsiff No. 1 , Jorhat registered as Title Suit No. 26 of 2013. The suit land is more or less 10 lechas which originally belonged to Gunogobinda Dutta. The same was under the possession of the father of the plaintiffs
Page No.# 4/6
appellants till his death on 12.9.1961. The defendants respondents ousted the plaintiffs appellants on 5.11.2012 and to that effect a police case was registered. Later on the house under their occupation was also demolished. The grandmother of the defendants respondents filed Title Suit No. 47/1972 for their eviction. The suit was dismissed for default on 3.11.1973. In the year 1985 the father of the defendants respondents filed another Title Suit No. 37/1985 in the court of Civil Judge, at Jorhat for khas possession and for declaration of right, title and interest. The said suit was also abated for non-impleadment of the present defendants respondents after the death of their father. Title Suit No. 37/1985 was disposed of on 27.8.1998 and since then the defendants respondents remained inactive for more than 12 years and as such the possession of the plaintiffs appellants was uninterrupted, continuous and hostile and the defendants respondents cannot evict the plaintiffs appellants. On the basis of said plea of adverse possession the plaintiffs appellants sought for a decree of recovery of possession by evicting the defendants respondents on the ground of their long and continuous possession since 1947 which remained uninterrupted till 6.11.2012.
Page No.# 5/6
9/2016 in the court of learned Civil Judge, Jorhat. The first appellate court also dismissed the appeal by holding that the plaintiffs appellants failed to plead the particular date on which the date of limitation for adverse possession as provided by Section 65 of Limitation Act, 1963 started. It was further held that the plaintiffs appellants were tenants in the premises and they had left the suit land on receipt of Rs. 1 lac from the defendants respondents. One Sri Ananda Chandra Dutta, DW 2 exhibited the said agreement between the parties to the suit as Ext.A wherein Ext.A(1) and A(2) are signatures of the plaintiff No.1, Anowar Hussain, Ext.A(3) is the signature of plaintiff No. 2 Nassira Begum and Ext. A(4) is the signature of DW 2 Ananda Chandra Dutta. Accordingly the appeal was dismissed. In the second appeal the judgment and decree of the first appellate court is under challenge.
Page No.# 6/6
appellants cannot file a suit to get a declaration of title on the basis of adverse possession as the trial court rightly held that it is a shield of defence but not a sword to be used by the plaintiffs. The pleading that the plaintiffs also continued their possession since 1947 is demolished on the production of the agreement, Ext.A wherein two of the plaintiffs in the original suit had accepted a sum of Rs. 1 lac and gave up the possession they maintained as tenant under DW 2, Ananda Chandra Dutta.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether a suit can be filed by the owner for a simple declaration of title based on the plea of adverse possession against the possessors.
Whether the position of the plain-appellants can be sustained on the ground of acquired title on the strength of limitation if the plea of adverse possession is not fully made out.
Whether the judgment trial and appeal below should be reversed and the second appeal in the title suit should be set aside for the decreeing title in same.
Colour shows how this judgement treated each authority
Gurdwara Sahib Vs. Gram Panchayat Village SirthalaDistinguished¶39
Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another reported in (2014) 1 SCC 669 · Who else cites this
1:Smti. Nasira Begum and 4 Ors.
MD. Raju Khan @ Abjul Khan and 7 Ors.
Prasanta Kumar Deka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
