Allowed

State of Tripura and 3 Otheres v. Mehbuba Majumdar and 5 Ors.

Tripura HC16 May 2017RSA/21/2007

Case brief

AI extract

What is this about?

This curb second appeal concerned the validity of a decree awarding title by adverse possession to a plaintiff regarding government khas land. The High Court allowed the appeal, setting aside the lower court's decree, holding that the plaintiff failed to prove hostile possession since she had not denied the State's title and had sought regularization of her possession.

What did the court decide?

Impugned judgment and decree setting aside; substantial questions of law answered accordingly; appeal allowed.

State of Tripura and 3 Otheres Vs Mehbuba Majumdar and 5… — Property and Title | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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REGULAR SECOND APPEAL NO.21 OF 2007

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1. The State of Tripura, Represented by the Secretary, Revenue Department, Agartala.

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2. The Director, Land Records & Settlements, Government of Tripura, Agartala, Tripura (W).

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3. The District Magistrate & Collector, West Tripura, Agartala,

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4. The Sub Divisional Magistrate, Sadar, Agartala, Tripura West. …. Appellants

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-: Versus :-

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1. Smt. Mehbuba Majumder, W/O. – Lt. Abdul Faiz Mazumder, No.– 4, Officers Quarter Lane, Agartala. Tripura West. (Represented by her constituted Attorney Sri Siddiqur Rehman, resident of 4 – Officers Quarter lane, Agartala, P.S. – West Agartala, Tripura West)

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….. Plaintiff-Respondent

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2. Mehabub Suleman, S/O. – Md. Kala Miah, Resident of 7/BA, Officers Quarter Lane, Agartala, P.S. – West Agartala, District – West Tripura.

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3. Sri Rajib Debbarma, S/O. – Late Babul Debbarma, Resident of 7/4 Officers Quarter Lane, Agartala, P.S. – West Agartala, District – Tripura West.

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4. Md. Panna Mazumder, S/O. Lt. Abdul Faiz Mazumder, 4, Officers‟ Quarter Lane, Agartala, P.S. – West Agartala, District – Tripura West.

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5. Md. Chuni Mazumder, S/O. – Lt. Abdul Faiz Mazumder, Resident of 4, Officers‟ Quarter Lane, Agartala, P.S. – West Agartala, District – Tripura West.

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6. Smt. Beauti Mazumder,

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W/O. – Sri Siddique Rehman, 4, Officers‟ Quarter Lane, Agartala, Tripura West. ….. Pro-Respondents

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 1 of 11

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B E F O R E THE HON’BLE THE CHIEF JUSTICE

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Counsel for the appellants : Mr. G.S. Bhattacharjee, Advocate, Counsel for the respondents : Mr. D.R. Choudhury, Advocate. Mr. S. Sarkar, Advocate. Date of hearing : 28-04-2017. Date of Judgment & Order : 16-05-2017

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JUDGMENT & ORDER

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This second appeal has been for hearing on the following substantial questions of law:

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Whether the claim for adverse possession can be originated from or based on the patta prepared in the name or in the names of their predecessor-in-interest?

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Whether the respondent/plaintiff was barred by estoppel from taking a different plea from that of the one taken in earlier suit relating to the same suit land and in between the same parties?

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Before proceeding further, the facts giving rise to this second appeal may be briefly noticed at the outset. The case of the plaintiff-respondent No.1 is that her father-in-law, namely, the late Firoj Mohhamad Majumder, entered into possession of the suit land measuring 12.50 ganda under Khatian No. 2226, C.S. Plot No. 6122 of Agartala Mouja by allotment from the Chief Minister of the erstwhile Maharaja of Tripura on 2-4-1949 TE; his name was recorded as unauthorized occupier in Column No. 23 of the said khas khatian. On the death of her father-in-law, his son, namely, Abdul Faiz Majumder, husband of the plaintiff, started to possess the suit land. On 25-11-1969, he had during his lifetime made an application to the Chief Commissioner for recording his name in the record of rights in the aftermath of the death of his father. Similar application was also made to the Revenue Minister of Tripura on 21-3-1989. While occupying the suit

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 2 of 11

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land, her husband got Municipal holding of the suit land bearing No. 329, Ward No. 3/7. After his death, the names of the plaintiff and the pro forma defendants were recorded in the holding. The plaintiff also in the meantime filed an application U/s 11(3) of the Tripura Land Revenue and Land Reforms Act, 1960 (“the Act” for short) for correction record of rights, but the same was rejected. The plaintiff then carried the matter in appeal before the Collector, but the appeal also met the same fate on the ground of limitation. The second appeal preferred by the plaintiff before the State Government also came a cropper on the ground of limitation.

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It is the contention of the plaintiff that taking advantage of the recording of the suit land as khas land, the defendant No. 5 and 6 (the respondent No. 2 and 3 herein) tried to forcibly take over possession of the suit land for which the plaintiff-respondent No. 1 had instituted Title Suit No. 37 of 2000 in the Court of the Civil Judge (Jr. Division), Court No. 1, Agartala seeking declaration of title and perpetual injunction, but the suit was dismissed on 2-8-2001 for her non-appearance on that day. Her application for restoring the suit was also dismissed on 25-8-2002. After the rejection of such an application, the respondent No. 2 and 3 on 15-52003 again tried to forcibly take over possession of a portion of the suit land described in Schedule-B to the plaint. This prompted the plaintiff to issue the notice U/s 80 CPC to the State-appellants for appropriate relief, but to no avail. According to the plaintiff, she through her predecessors-ininterest has been in possession of the suit land for a period exceeding 60 years and has thus acquired title to the suit land by adverse possession. She, therefore, instituted the present suit.

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The suit is contested by the State-appellants by filing their written statement wherein they denied the claim of the plaintiff that she has acquired title to the suit land adverse possession. According to the Stateappellants, her application U/s 11(3) of the Act, having been rejected and

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 3 of 11

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so also the appeal, she should have come before a civil court within six months of the disposal of the appeal; her failure to do so in time bar her suit by limitation. They, therefore, prayed that the suit be dismissed.

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From the pleadings of the parties, the trial court framed the following issues:

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Is the suit maintainable in its present form and nature?

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Is the suit barred by limitation?

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Has the suit any cause of action?

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Is the suit barred by the principle of res judicata?

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Whether the suit land in question belonged to the Government of Tripura?

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Whether the plaintiff entitled to have decree as prayed for?

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Has the plaintiff right of adverse possession over the suit land along with pro-defendants through their predecessors since 2-4-49 TE?

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Whether the defendants No. 5 and 6 forcibly took over the possession of the suit land described in Schedule „B‟ to the plaint?

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To what relief/reliefs the parties are entitled to get?

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On Issue No. 1 and 2, the trial court held that as the suit is for declaration of title and not against the order passed under Section 11(4) of the Act, the limitation of 6 months would not apply and the suit is not, therefore, barred by limitation. As for Issue No. 3, as the plaintiff asserted that the cause of action rose on 15-5-2003, when the defendants No. 5 & 6 with unknown persons entered into the suit land, etc., in the absence contest by these defendants, who are the defendants against reliefs are claimed, no cause of action arose against the State-appellants. Issue No. 4 was not pressed by the plaintiff and was decided the plaintiff. As for Issue No. 5, the trial court held that the suit land belonged to the State. On Issues No. 6 and 7, the trial court observed that the plaintiff should have in the first place admitted the title of the suit land vested with the State-

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 4 of 11

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appellants just after the merger, but she continued to possess the same by denying their title over the suit land and that having not done so, it was not shown since when exactly the possession became adverse. According to the trial court, long possession of Government land by itself could not ripen into title by adverse possession unless the aforesaid points are met. It, therefore, held that the plaintiff had not acquired title to the suit land by adverse possession and was not thus entitled to the decrees prayed for. In so far as Issue No. 8 is concerned, the trial court held that the plaintiff and her witnesses could not prove the dispossession or the quantum of Schedule „B‟ land or its boundary or the manner of her dispossession and accordingly decided the issue against her. Consequently, the suit was dismissed.

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On appeal filed by the plaintiff, the appellate court came to diametrically opposite findings. According to the appellate court, two admitted facts needed to be noticed, namely, the State-respondents did not seriously challenge the plaintiff‟s possession over the suit land and that both sides admitted the status of the suit land as Government khas land. The appellate court held that as the plaintiff had been uninterruptedly possessing the suit property for more than 60 years, she had, therefore, acquired title thereto by adverse possession. In reaching the aforesaid conclusion, the appellate relied on documents such electricity connection bill (Exbt. 3 Series), Municipality holding (Exbt. 3 and Exbt. 4 series), Parcha (Khatian) showing possession over the suit property, and took into account the permission given by the Chief Minister to Firoze Md. Majumder to construct a residential house, which apparently showed that he was in possession of the suit land since before 1949 and of the tin shed hut on the suit land thereby unequivocally proving the possession of the suit land by the predecessor. According to the appellate court, the exhibited khatian attested on 22-1-1968 was prepared by the Revenue Department of the State-appellants which showed the predecessor of the

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 5 of 11

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plaintiff as illegal occupier, which is a conclusive proof about forcible occupation of the suit land by the predecessor of the plaintiff continuously for a long period. According to the appellate court, the filing of petition U/s 11(3) of the Act by the plaintiff would go to show that she has claimed her title over the suit land and denied the title of the State-appellants. Thus, the appellate court, for all the afore-mentioned reasons, held that the judgment of the trial court could not be sustained. The appellate court, therefore, decreed the suit by declaring that the plaintiff-respondent had acquired right, title and interest over the suit land by adverse possession. It further perpetually restrained the defendants from entering the suit land or from forcibly taking possession of the suit land. Aggrieved by this, this second appeal is now preferred by the State-appellants.

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Both Mr. G.S. Bhattacharjee, the learned counsel for the Stateappellants, and Mr. D.R. Choudhury, the learned counsel for the respondents were heard at length. The pleadings of the parties, the impugned judgment as well the judgment of the trial court and the lower court record have been perused by me.

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The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other‟s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner‟s right

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 6 of 11

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excluded him from the enjoyment of his property. In T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570 , the Apex Court held:

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“20. It is well-recognised 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.”

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The issue of Municipal holding without obtaining patta from the State-appellants or the mere filing of application by the plaintiff U/s 11(3) of the Act rather negates her case of adverse possession. This position of law can be best understood by reproducing below the observations of the Apex Court in Mandal Revenue Officer v. Goundla Venkaiah, (2010) 2 SCC 461 :

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“46. In our considered view, the approach adopted by the High Court was ex facie erroneous because the absence of final order in the proceedings initiated under the

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 7 of 11

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Encroachment Act cannot lead to an inference that the authority concerned had recognized the possession of Gonda Mallaiah over the schedule land. That apart, even if this Court was to presume that the proceedings initiated against Gonda Mallaiah under the Encroachment Act had been dropped, the said presumption cannot be overstretched for entertaining the respondents‟ claim that their possession was open and hostile qua the true owner i.e. the Government. The payment of land revenue by Gonda Mallaiah and/or the respondents and making of applications by them to the Government for assignment of the schedule land or regularisation of their possession, completely demolish their case that their possession was open and hostile and they have acquired title by adverse possession.

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(Underlined for emphasis)

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In the same decision, the Apex Court at para 47 expressed the practical difficulties in keeping watch over vast tracts of open land undoubtedly belonging to the State and cautioned the courts in dealing with cases of adverse possession claimed by private individuals. This is what it said:

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“47. In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 8 of 11

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their occupation/possession and construction regularised. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorized occupants or land grabbers.”

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In the instant case, the trial court has rightly held that the plaintiffrespondent ought to have first admitted that after the merger, the suit land got vested in the Government of Tripura, but they continued to possess the same denying the title of the Government and asserting her own right, which was not done. Consequently, the trial court further rightly observed, it is also not shown as to since when her possession became adverse. Moreover, a person, to succeed on plea of adverse possession, should disclose and prove as to when the adverse possession started and when it was perfected by him. In the State of M.P. v. Nomi Singh and another, (2015) 14 SCC 450 , the respondents-plaintiffs were recorded as maurusi kashtkar (hereditary tenants) and later pakka krishaks in revenue records by the year 1951 upon grant of oral patta by zamindar before zamindari abolition. Later on, the Tehsildar declared them as encroachers in the year 1978. Appellant-defendants claimed ownership over disputed property stating that it was acquired by State Government for setting up of industrial area in the year 1946 but part of the same was given on lease for one year to respondents-plaintiffs. The defendants failed to produce original khasra entries in their favour. The High Court allowing the second appeal of the respondents-plaintiffs observed that the appellantsdefendants challenged possession of the plaintiffs-respondents on the ground of failure to produce khasra entries, and the burden of proof,

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 9 of 11

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therefore, lies on defendant in which defendant failed and plaintiffsreposndents automatically became bhumiswamis after enforcement of the M.P. Land Revenue Code, 1959. Allowing the appeal, the Apex Court held:

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“12. From the perusal of the papers on record, it appears that though the plaintiffs have pleaded that Surjan Singh was granted an oral patta by erstwhile Zamindar Srilal, but it has not been averred in the plaint as to in which year or Samvat such an oral patta was given to Surjan Singh (father of plaintiff Nomi Singh). The first appellate court has rightly taken note of the fact that if the respondents (plaintiffs) were bhumiswamis, they could have filed the receipts of payments of land revenue (lagaan), or the receipts of crop profits paid to the zamindar. Though the plaintiffs did file some documentary proof in the form of khasra entry in respect of some of the plots in question, for the period of 1950-1952 (i.e. when admittedly land was allotted for one year to the father of the plaintiff), but the subsequent entries for period Samvat 2013 to Samvat 2018 disclosed that the land in question was part of industrial area and recorded in favour of the Commercial Department of the State.

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13. Apart from this, the trial court and the first appellate court have rightly found that to succeed on the plea of adverse possession, the plaintiffs should have disclosed and proved as to when the adverse possession started and when it was perfected by them, particularly when they were declared encroachers way back in the year 1978 by the Tahsildar. As such, in our opinion, the plaintiffs have failed to prove their case on the grounds taken by them in the plaint.”

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 10 of 11

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Need I say more? The plaintiff-respondent has miserably failed to prove that she has acquired title to the suit land by adverse possession. The impugned judgment and decree are accordingly set aside. The substantial questions of law are answered accordingly. This appeal is, therefore, allowed. No costs. Transmit the L.C. record forthwith.

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CHIEF JUSTICE

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REGULAR SECOND APPEAL NO.21 OF 2007 Page 11 of 11

State of Tripura and 3 Otheres v. Mehbuba Majumdar and 5 Ors.

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State of Tripura and 3 Otheres v. Mehbuba Majumdar and 5 Ors.

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