& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

Adverse possession can be enforced against a person who does not prove a better title
Background
Mirza Hussain Haider, J: The defendant-petitioners obtained this Rule to show cause as to why the impugned judgment and decree dated 11.2.1999, passed by the learned Additional District Judge, Jhenidah, in Title Appeal No. 78 of 1996 reversing those dated 23.4.1996 passed by the learned Subordinate Judge (now Joint District Judge), Jhenidah, in Title Suit No. 58 of 1986 should not be set aside and/or pass such other of further order or orders as may be deemed fit and proper.
The case of the defendant-petitioners in short, is that on 29.12.1980 the opposite party instituted Title Suit for declaration of his title in the Court of Subordinate Judge, Jessore. Against the heirs of Godai Molla and the suit was transferred to the Court of Subordinate Judge Jhenidah on 16.3.1986 and renumbered as Title Suit No. 58 of 1986. The plaintiff alleged that the suit property along with other properties originally belonged to one Kunjo Bihari Ghose under the Superior landlord Raja Bhushan Dev Roy Bahadur. Kunjo Bihair Ghose while possessing the suit land died leaving behind his only son Rashik Lal Ghose who inherited the same and subsequently settled 7.08 acre of land, orally, with the plaintiff on 10th Ashar, 1350 BS and since then the plaintiff has been possessing the same peacefully.
The present petitioner appeared and contested the suit by denying all material allegations of the plaint contending inter alia that admittedly the suit land originally belonged to Kunja Bihari Ghose under Raja Promotha Bhushan Deb Roy Bahadur. But the said defendant claims that Kunja Bihari, while possessing the suit property settled the same in favour of Godai Molla by oral settlement. Subsequently Kunja Bihari surrendered his interest in favour of the superior Land Lord and since continued to pay rent in the Sheresta. The defendant petitioner claims that one Rajab Ali and some others instituted Title Suit No. 150 of 1953 in the 2nd Court of Munsif, Jhenidah against Godai Mollah and obtained a collusive sole decree which was challenged by Godai Mola in Title Suit No. 78 of 1955 of the same Court wherein the said sole decree was set aside against which Rajab Ali and others unsuccessfully moved up to the High Court of East Pakistan. The contention of the contesting defendant is that during the Rent Role Verification the suit property was correctly recorded in the name of Godai Mollah who subsequently transferred the entire property to Babar Ali, Khelafot, Ator and Khotejan. Some of these transferees in their turn transferred some of their shares to some other persons.
Deliberation
Upon hearing the parties and perusing the evidences on record the trial court was pleased to dismiss the suit by its judgment and decree. Against the aforesaid judgment and decree, the plaintiff preferred Title Appeal No. 78 of 1996 in the Court of District Judge, Jhenidah. But the defendants did not challenge the finding of the trial court as regards disbelieving Godai Molla's title in the suit land by "Bondabasta" as well as the title of the defendants on the basis of the said unfounded "Bondabasta". Also the finding of the plaintiffs part possession by preferring neither any appeal nor the defendants filed any cross objection in the appeal filed by the plaintiff. However, the aforesaid appeal of the plaintiff appellant was ultimately heard by the learned additional district Judge who allowed the same on contest and reversed the findings and decision of the trial court and thereby decreed the suit.
Mr. Harendra Nath Nondy, the learned advocate appearing for the petitioners, submits that the suit is barred by limitation. Secondly, he submits that PW's admission that other than 3 Katas of his paternal property. He did not purchase or acquire any property, which supports the suggestion of the defendants that the plaintiff has no right, title and interest in the suit land and hence he did not record his name. Thirdly, he submits that recording of Godai's name being existing for long 30 years, and supported by the dakhilas, the presumption should have been that the defendants have title and possession in the suit land. According to him the rent receipts filed by the defendants are corollary evidences of title and possession and thus the rent receipts of the defendants following the title of Godai Molla being not considered by the courts below the findings and decision arrived at the are erroneous and as such liable to be set aside. According to him the finding of the court of appeal below being based on inadequate evidence the same has resulted error in the decision occasioning failure of justice. Mr. Nondy submits that Rashik Lal Ghose S/O Kunja Behari Ghose, was produced as P.W., who admitted that his father Kunju Bihari Ghose surendered possession of the suit land to the superior Land Lord. Lastly he submits that the learned Judge failed to consider that without asking for consequential relief simple declaration of this nature is not maintainable.
On the other hand, Mr. Nurul Amin appearing with Mrs. Sakila Rowshan, learned Advocates for the plaintiff submit that this revisional application filed by the added defendants is not maintainable. Because Ainuddin the defendant who has been shown as petitioner neither contested the suit by filing any written statement nor preferred or contested the appeal. But he deposed as D.W. wherein
he neither claimed his on title and possession in the suit land nor he proved the title and possession of any other defendant and having no interest in the suit land cannot have any grievance against the judgment and decree . And cannot be a petitioner in this revisional application and the other defendants having adopted defendant's case did not take sufficient steps to prove them as such this application is not maintainable. Moreover, without filing any appeal or cross objection against the findings of the trial court with the title of Godai Molla and exclusive possession of the defendants they are not in any way aggrieved and they have no locus standi to file the revisional application. Mr. Amin then submits that the petitioner now cannot argue that rent receipts are corollary evidences of title and possession before this court. As because Godai's title as well as the defendants' title having not been proved before the court below by producing any convincing and cogent evidence, which they could also do in the appeal and the defendants having not preferred any appeal challenging those findings. Thus they cannot now argue contrary to the concurrent findings of fact.
He also submits that the courts below rightly did not take the same into consideration as neither the plaintiff nor his predecessors were parties in the said decree rather the same was passed against a 3rd party who is not a party in the present suit. On the point of limitation Mr Amin submits that the suit is not barred by limitation. He submits that the plaintiff is not bound to institute a suit for declaration that the entry in the record of rights is wrong rather he can wait and sue when his right is invaded. About the next contention of Mr Nondy that a finding of fact when not based one evidence or based on merely inadequate evidence or inconsistent with the evidence with the evidence on record the High Court can interfere when misreading of evidence is apparent. Mr Amin submits that the said principle also does not help Mr Nondy, in any manner, because relying upon the evidences available on record the courts below came to a definite finding that the defendants failed to prove their title or exclusive possession in the suit property.
Mr Amin next submits the CS Khatian bears the name of Kunja Behari Ghose as a Rayoti tenant which cannot be surrendered simply by oral pronouncement without compliance of the provisions of sections 85, 86 and 87 of the Bengal Tenancy Act. Thus the statement of Rashik Lal as to surrendering the tenancy by his predecessor to the superior Landlord cannot be construed as complete evidence and as such the petitioner cannot take any advantage of the said statement. Mr Amin submits that the court below very carefully considered all the evidences on record specially the rent receipts and came to proper finding that the defendants failed to prove their title no matter Goddai Molla's name was in the record for a certain period but without filing any rent receipt or any other document his title is not proved. Lastly, Mr Amin submits that for argument sake if it found that the plaintiffs title through his predecessors settlement in 1350 BS is not valid, which is not at all admitted rather found to be proved as valid by the last court. In fact the plaintiff has a good and valid title by way of adverse possession and the plaintiff had been enjoying the same and also transferred some portion of it to different persons and now he is possessing the rest of it along with 3 Khathas of his paternal property. According to him the judgment of the court of appeal below having been based on proper consideration and appreciation of all the material evidences available on record and upon proper scrutinizing the same, is a correct judgment and as such there is nothing to interfere with the same.
On hearing the learned Advocates for both the parties at length and on record it appears that the defendants did not file any appeal or cross objection challenging the findings of the trial court as regards disbelieving the title of Godai Molla in the suit land. As such the said finding being not reversed by any competent court the same remains as a final finding of fact thus the defendants cannot claim their own title and possession under the revisional jurisdiction, contrary to what has been found by the courts below. In several decisions it is clearly said that only the error of law can not be a ground for interference under section 115(1) of the Code. But it is also the duty of the petitioner to prove that such error has caused error in the decision occasioning failure of justice. Under such circumstances Mr Nondy the frankly admits that it is difficult to attract section 115 of the Code of Civil Procedure to set aside the impugned judgment on the ground that the error, if any found, has occasioned failure of justice to his clients. So in the present Rule only point remains to see whether the court below has committed any error in holding that the plaintiff has been able to prove his case by sufficient evidence, not beyond that. It appears that the plaintiff produced five witnesses and some documentary evidences to prove his case and relying upon all the evidences on record and considering the same the courts below disbelieved the title of Godai Molla as the defendants failed to produce or prove the alleged "Bondabasta Nama". And also failed to prove the date of settlement by Kunja Behari in favour of Godai Molla or any other date of settlement subsequent thereto by the superior Landlord as alleged. Documents they have produced in this respect show that some rents were paid by one Ainuddin a non contesting defendant having no interest in the suit land. As such there is no evidence on record from which the courts below could arrive at a decision that Godai Mollah had a valid title and after his death his heirs inherited the same and transferred it to the defendants. It appears that after Kunja Behari Ghose his son and successor Rashik Lal became the owner of the suit land and continued to possess the same and settled the same to the plaintiff. On receiving rents by Rashik Lal having been produced before the Court and clearly show that there is no discrepancy in this respect that the suit land has been transferred to the plaintiff. It can be said that when no less than the settler himself the son of the admitted recorded tenant Kunija Behari, appears and admits the rent receipts than the primary of the same is already made. And the burden of proving contrary or otherwise of those receipts thereafter is thus shifted to the persons who challenges the same. In the present case the onus of
proving transfers from the admitted tenant Kunja Behari Ghose through his son to the plaintiff and to prove the same. He proved the rent receipts in support of his contention. The signatures in those receipts dakhilas having been proved by Rashik Lal himself, those are rightly taken into consideration by the court of appeal below which decree the suit. Thus it appears that the plaintiff proved the transfer in his favour by sufficient evidence. It appears that admittedly the defendants before the court to prove Godai's title by way of settlement have produced nothing. To prove payment of rent from Godai time till filing of the suit in 1980 to prove that Godai Molla or any of the subsequent transferees paid rents in support of their title or possession in the suit land. Thus such rent receipts is subsequent to the institution of the suit cannot be considered as corollary evidence to the defendants. Thus in the absence of any such evidence on record the courts below rightly found that Godai and or the defendants claim through him do not have any title in the suit land.
Whatever might be the statement of PW unless the provisions of sections 85,86 and 87 of the BT Act are complied with the surrender cannot be proved under the law. The defendants having not taken any step to prove such surrender or abandonment of the Tenancy by adducing any evidence the allegation of surrendering and or the statement made by Rashik lal, will not ipso facto prove the defence case. However it appears that PW has proved plaintiffs possession in the suit land for last 45/46 years. However, when Rashik Lal categorically deposed that he has transferred the suit land to the and the plaintiff's possession being proved by other witnesses there remains no doubt in to hold that the plaintiff has been able to prove his title and possession. On the other hand the evidence led by the defendants, in no way, proves the title of the defendants having clearly proved the title and possession of the plaintiff. The court of appeal below rightly passed the impugned judgment and as such no error has been committed in passing the same occasioning failure of justice.
Mr. Nondy could not point out any misreading of evidence in the judgment of the lower appellate court. It is true that the plaintiff is to prove his title in all the cases. But it is now settled that the plaintiff is not always required to prove his title to the hilt rather if he is able to prove his title better than that of his adversary it is enough. Moreover, adverse possession in law is subsisting right of a party, which the law protects and which can be enforced against a person who does not prove a better title. Thus it appears that the plaintiff, in this case have been able to prove better title against the defendants and having possessing the suit land since 1350 B.S. he is as such, entitled to a decree.
Judgement
Having consonance with the decisions referred herein above I am of the view that the learned court of appeal below rightly allowed the appeal and decreed the suits upon setting aside the judgment and decree of the trial court on discussing and considering all the materials on record and as such in doing so the learned judge did not commit any error of law resulting in an error in the decision occasioning failure of justice.
I do not find any merit in the Rule. Accordingly, the Rule is discharged without any order as to cost.
The judgment and decree passed by the learned Additional District Judge, 2nd Court Jhenidah in Title Appeal No. 78 of 1996 is affirmed.
Mr. Harendra Nath Nondy, Advocate, for the defendant-petitioners.
Mr. Nurul Amin, with Mrs. Sakila Rowshan, Advocates, for the opposite party.
Please note that the judgement of the above case was published incorrectly in the last issue (8 August) due to an unexpected mixing of two partial judgements arisen from the computer error. We now reprint the above case with the correct version of the judgement.