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Premendu Bhusan Mondal v. Sripati Ranjan Chakravarty
Structured Summary of the Opinion (as provided)
Factual and Procedural Background
The opinion begins with the appellant being the plaintiff in a suit for declaration of title, recovery of possession and mesne profits. The disputed house originally belonged to one Hiru Sheikh, who died in 1948 leaving four sons and two daughters. The heirs (including Abdul Latif and Abdul Gani) were living in the premises (No. 4, R.N. Chatterjee Lane, Baranagar). Following a communal riot in or about March 1950, the heirs left the disputed house and took shelter in village Badra.
A defendant, described as a refugee from East Pakistan, occupied the vacant house. The plaintiff purchased the disputed house from Abdul Latif and others by a registered sale deed dated May 29, 1964, mutated his name in the Municipal Register and paid taxes. The plaintiff demanded vacant possession from the defendant but the defendant did not vacate; the plaintiff therefore instituted the suit seeking declaration of title, possession and mesne profits.
At first instance the learned Subordinate Judge, 5th Court, Alipore, found that the defendant had acquired title by adverse possession and dismissed the suit. The plaintiff appealed. The opinion under summary is authored by M.M. Dutt, J., with Sharma, J. concurring.
Legal Issues Presented
- Whether the defendant acquired title to the disputed house by adverse possession.
Arguments of the Parties
Appellant (Plaintiff)'s Arguments
- The plaintiff's claim is founded on title acquired by a registered sale deed dated 29 May 1964 from Abdul Latif and others; he mutated his name in municipal records and paid taxes.
- The plaintiff and his vendors repeatedly requested the defendant to vacate the disputed house; vendors had earlier demanded possession on some occasions.
- The plaintiff relies on witness testimony (P.W.1 Samsuddin; P.W.3 Priyabrata Dasgupta; P.W.4 Sushil Kumar Mukherjee) to corroborate the claim that the defendant admitted the vendors' title and promised to vacate when given alternative accommodation by the Government.
- Letters from the plaintiff's lawyer (dated December 4, 1964) demanded possession; the defendant's lawyer's reply did not assert hostile title, but instead alleged forgery in the sale deed.
Respondent (Defendant)'s Arguments
- The defendant contends he entered into possession in March 1950 and has had uninterrupted possession for over twelve years, thereby acquiring title by adverse possession under Article 65 of the Limitation Act, 1963.
- He asserts he attempted to purchase the house within a few months of occupying it, but negotiations failed because of alleged false personation by vendors; this was presented to show assertion of a right to the property.
- Evidence relied upon to prove adverse possession included: a statement to Dhiren Chatterjee that he was in forcible occupation and would not vacate; taking an electric connection; payment of municipal taxes; and entry in the revisional record-of-rights recording forcible possession since 1356 B.S. (1950).
- In the written statement the defendant also alleged manipulation/forgery in the plaintiff's sale deed (an argument repeated in correspondence), which he said deprived the plaintiff of title.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Watson v. The Government, 1865 Beng LR (Supp. Vol.) 182 at p. 196 (FB) | Illustration of the principle that a squatter or trespasser who does not set up a claim of right cannot plead adverse possession; mere squatting does not defeat the true owner's suit. | The court invoked this authority to support the proposition that the defendant—being a refugee who occupied the house when it was vacant and who did not assert a hostile title against the owners—could not rely on mere long possession to establish adverse title. |
| Suraj Ahir & Others v. Prithinath Singh & Others, (1963) 2 SCJ 140 : AIR 1963 SC 454 | Support for the principle that mere squatting without a claim of right cannot mature into title by adverse possession against the true owner. | Relied upon to reinforce the court's conclusion that the defendant's conduct and assurances (and the absence of a clear assertion of hostile title) precluded a finding of adverse possession. |
| Moosan Aidravassu v. Mani, AIR 1957 Trav-Co 14 | Same overarching principle: adverse possession cannot be established by a mere squatter who does not claim right. | Cited by the court to show established authority for refusing to treat mere occupation (even if long-standing and accompanied by municipal payments) as sufficient to found adverse title where the occupier admitted the owner's title or gave assurances of vacating. |
Court's Reasoning and Analysis
The court framed the dispute narrowly: the single question was whether the defendant had acquired title by adverse possession. It first identified that Article 65 of the Limitation Act, 1963 applied (a 12-year period where the plaintiff's suit is based on title rather than prior possession).
The court analysed evidence and findings as follows:
- Admissions and negotiations: The defendant, within four to five months of occupying the house, sought to purchase it and engaged in negotiations. Because the defendant refused a proposed purchase arrangement involving alleged false personation, the court concluded the defendant had admitted the title of the plaintiff's vendors after he occupied the house. The court stated that an unauthorised occupier's admission of the owner's title negates the hostile character necessary for adverse possession; possession under such circumstances is deemed to be on behalf of the owner.
- Assurances and corroboration: The plaintiff's case (and vendors' earlier demands) included consistent evidence that the defendant repeatedly assured vendors and the plaintiff that he would vacate once alternative accommodation from the Government (rehabilitation) was provided. Witnesses (P.W.3 and P.W.4) corroborated these assertions; the court rejected the Subordinate Judge's rejection of their evidence and found no reason to disbelieve P.W.1 Samsuddin, who recalled an assurance to wait for rehabilitation assistance.
- Specific incidents relied on by the defendant: The defendant claimed an incident involving Dhiren Chatterjee (who allegedly told him to vacate and whom the defendant defied) as evidence of hostile possession. The court found that testimony not credible in light of defence witnesses stating that Dhiren Chatterjee arranged rehabilitation and helped refugees, making it unlikely he would have demanded vacation. Moreover, the court noted there was no evidence that any such statement was made in the presence of the vendors or the plaintiff, which would have been material to show hostility to the owners.
- Municipal payments and connections: The defendant relied on obtaining an electric connection and paying municipal taxes and on his name appearing in revisional records as in forcible possession. The court held that these facts did not prove adverse possession: the municipal register continued to show the house in the name of the vendors until the plaintiff's mutation; tax payments could be explained as occupier's share; and entries in record-of-rights, while presumed correct, are rebuttable by evidence. The court found no evidence that, until the revisional record entry of 1955/56, the defendant possessed the house adversely to the owners.
- Correspondence and allegation of forgery: The defendant's lawyer's letter replying to the plaintiff's demand for possession did not assert a hostile title or ownership in the defendant; instead it alleged manipulation/forgery in the sale deed and sought vendor details. The court treated these allegations (unproved in the record) as undermining the defendant's claim of adverse possession because they were not an assertion of a right to possession.
- Administrative confirmation: The defendant averred in the written statement that S.D.O. and Collector confirmed his possession until alternative accommodation was available. The court read this as further indication that the defendant lacked the animus (intention) to set up an independent claim of right to the property.
- Legal principle application: The court applied established authority that a squatter or trespasser who does not set up a claim of right cannot plead adverse possession; no length of mere squatting is a defence to a true owner's suit. The precedents cited (Watson; Suraj Ahir; Moosan Aidravassu) were used to support this legal principle.
- Overall assessment: The court concluded that the Subordinate Judge had been improperly influenced by the length of possession and by municipal payments and connections. On the totality of evidence, the court found that the defendant had not established adverse possession and therefore could not defeat the plaintiff's title claim.
Holding and Implications
Core Holding: The appeal is allowed and the plaintiff's suit is decreed. The court set aside the judgment and decree of the learned Subordinate Judge which had dismissed the suit.
Direct consequences and orders contained in the opinion:
- The plaintiff's title to the disputed house (as described in the Schedule to the plaint) is declared.
- The defendant is directed to vacate and deliver vacant and peaceful possession of the disputed house to the plaintiff on or before February 29, 1976.
- In default of compliance, the plaintiff is entitled to obtain vacant possession in execution of the decree.
- The plaintiff is entitled to mesne profits, which are to be ascertained by the Court below in accordance with Order 20, Rule 12 of the Civil Procedure Code (CPC).
The opinion contains differing statements about costs: paragraph 11 states the suit is "decreed with cost," whereas paragraph 12 states "the appeal is allowed, but in view of the facts and circumstances of the case, there will be no order for costs." Both statements appear in the provided opinion text and are reported here exactly as contained in the opinion.
No broader legal innovation or new precedent is announced in the opinion; the court applied established principles regarding adverse possession and squatter's rights to the facts at hand.
Judges
The opinion portion summarized above is authored by M.M. Dutt, J.; Sharma, J. recorded agreement ("I agree."). The opinion concludes: "Appeal allowed."
M.M Dutt, J.:— This appeal is at the instance of the plaintiff and it arises out of a suit for declaration of title, recovery of possession and mesne profits.
2. The disputed house belonged to one Hiru Sheikh. He died in 1948 leaving behind him his four sons and two daughters. The heirs of Hiru Sheikh, namely, Abdul Latif, Abdul Gani and others were living in the disputed house being premises No. 4. R.N Chatterjee Lane, Baranagar. There was a communal riot in or about March, 1950, and they had to leave the disputed house and take shelter in village Badra, in the interior part of the district of 24-Parganas. Taking advantage of their absence, the defendant who is a refugee from East Pakistan, occupied the disputed house which was lying vacant. The plaintiff purchased the disputed house from Abdul Latif and others on May 29, 1964, by a registered sale deed. He mutated his name in the Municipal Register and paid taxes. The plaintiff requested the defendant to vacate the disputed house, but the defendant, though he assured the plaintiff that he would vacate the same, did not ultimately do so. In the circumstances, the plaintiff instituted the suit for the reliefs aforesaid.
3. The main defence of the defendant is that he has acquired title to the disputed house by adverse possession for a period of over twelve years. He came to the disputed house in March, 1950 and since then he has been in uninterrupted possession thereof. It is contended by him that the suit is barred by limitation and adverse possession.
4. The learned Subordinate Judge, 5th Court, Alipore, came to the finding that the defendant had acquired title to the disputed house by adverse possession. Upon the said finding, the learned Subordinate Judge dismissed the suit. Hence this appeal.
5. The only question that is involved in this appeal is, whether the defendant has acquired title to the disputed house by adverse possession. On the allegations made in the plaint, it is clear that Article 65 of the Limitation Act, 1963, applies to the case. The plaintiff has brought the suit for possession of the disputed house basing his claim on title and not on prior possession and dispossession. The period of limitation as prescribed by Article 65 is twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. The learned Subordinate Judge has also held and, in our opinion, rightly that Article 65 applies. In the written statement, it is the positive case of the defendant and it is also his evidence that within 4 or 5 months of his coming into possession of the disputed house, he wanted to purchase the same. There is some negotiation in the matter, but as Abdul Gani, one of the sons of Hiru Sheikh proposed to get the deed of sale registered by false personation of some of the vendors who were then living in East Pakistan and unable to come to Calcutta for the purpose of registration, the defendant did not agree. It thus appears that the defendant admitted the title of the plaintiff's vendors after he came to occupy the disputed house. In our view, when a person in unauthorised occupation admits the title of the true owner his possession of the property will not be adverse to the true owner.
6. It is also the plaintiff's case that after his purchase of the disputed house he contacted the defendant several times and requested him to vacate the same, and before his purchase his vendors on some occasions contacted the defendant and demanded vacant possession from him. But each time the defendant assured them and the plaintiff that he would vacate the disputed house as soon as he would get alternative accommodation from the Government by way of rehabilitation. P.W 3 Priyabrata Dasgupta who was the Secretary of the Refugee Committee and P.W 4 Sushil Kumar Mukherjee have corroborated the plaintiff's case. The learned Subordinate Judge has not believed the evidence of P.W 3, because he lent some money to the defendant. He has (sic) (not?) placed reliance on the evidence of P.W 4 as he had intimacy with P.W 1 Samsuddin, one of the sons of Hiru. In our opinion, on these grounds, the evidence of P. Ws. 3 and 4 cannot be rejected, P.W 1 Samsuddin has stated in his evidence that when they came back from Badra they found the defendant in possession of the disputed house. He asked him to vacate the house in or about 1955/1956, but the defendant told them to wait as he was a refugee and would get loan from the Rehabilitation Department. We do not also find any reason to disbelieve Samsuddin. It has been already stated, that when a person in unauthorised occupation admits the title of the true owner his possession of the property is not adverse to the true owner, but it should be deemed to be on his behalf.
7. The defendant, however, sought to prove adverse possession by certain facts. One Dhiren Chatterjee was the Chairman of the Baranagar Municipality. It is the evidence of the defendant that in January, 1951, Abdul Gani came and requested him to go to the house of Dhiren Chatterjee. Dhiren Chatterjee threatened the defendant and asked him to vacate, but he told Dhiren Chatterjee that he was in forcible occupation and would never vacate the disputed house. In the first instance, we are not prepared to believe the statement of the defendant, for according to D.W 1 Hirendra Nath Chatterjee, who is the brother of Dhiren, his brother arranged vacant houses for refugees and the ‘para people’ helped the defendant and his family to occupy the disputed house. D. Ws. 2 and 3 also categorically stated that Dhiren Babu arranged for the rehabilitation of refugees. In view of the said evidence of the witnesses examined on behalf of the defendant, it is difficult to believe that Dhiren Chatterjee would ask the defendant to vacate the disputed house. Secondly, there is no evidence that the said statement was made by the defendant to Dhiren Chatterjee in the presence of Abdul Gani or any of the vendors of the plaintiff. Even assuming that the defendant refused to vacate the disputed house when asked by Dhiren Chatterjee, that would be no evidence of adverse possession or assertion of hostile title against the plaintiff or his vendors. Dhiren Chatterjee had nothing to do with the disputed house nor was he an agent of the plaintiff's vendors. The defendant placed reliance on the fact of taking electric connection in the disputed house and payment by him of the Municipal tax. In our view, taking of electric connection or payment of Municipal tax does not go to prove adverse possession of the defendant. The house stood in the name of the plaintiff's vendors in the Municipal Register and after the purchase of the same, the plaintiff mutated his name. The defendant, therefore, paid taxes to the Municipality in the name of the plaintiff's vendors and, thereafter, in the name of the plaintiff. In any event, he was liable to pay occupiers' share of the tax. The recording of the defendant's' name in the revisional record-of-rights as in forcible possession of the disputed house since 1356 B.S corresponding to 1950 also does not help the defendant. There can be no doubt that there is a presumption of correctness of the entries in the record-of-rights, but that is liable to be rebutted on evidence. In 1950 the defendant admitted the title of the plaintiff's vendors and till the recording of his name in the revisional record-of-rights in 1955/56, there is nothing to show that he possessed the disputed house adversely to the owners.
8. One fact is significant to be noticed. The plaintiff's lawyer by his letter dated December 4, 1964, demanded possession of the disputed house from the defendant. The said letter was replied to by the defendant's lawyer by his letter dated December 17, 1964. In that letter, no hostile title was asserted on behalf of the defendant in the disputed house. It was also not claimed in that letter that the defendant had been in possession of the disputed house in his own right. On the contrary, it was alleged that some manipulation, forgery and false personation had been made in regard to the execution of the deed of sale in favour of the plaintiff. It was requested that a full and comprehensive list of the vendors should be given to the defendant whereupon he would give a full and detailed reply. By this letter, the defendant impliedly admitted the title of the plaintiff's vendors, but it was alleged that the plaintiff got the sale deed executed by manipulation, forgery and false personation. In the next letter of the defendant's lawyer dated January 15, 1965, it was also alleged that the plaintiff's sale deed was tainted with forgery etc. A similar allegation has been made in the written statement. These allegations which have not been proved would, in our view, go against the defendant's case of adverse possession of the disputed house. By these allegations, it was sought to be contended by the defendant that as the plaintiff's sale deed was not genuine no title of his vendors in the disputed house passed to the plaintiff.
9. The vendors of the plaintiff made an application to the Sub-Divisional Officer, 24 Paraganas for getting back possession of the disputed house from the defendant. In paragraph 12 of the written statement, the defendant has averred that his possession of the disputed house until alternative accommodation under the law, was confirmed by the S.D.O and the Collector. This shows that the defendant had no animus to set up a claim of right in respect of the disputed house. He was a refugee from East Pakistan and he occupied the disputed house finding the same vacant. There is truth in the plaintiff's case that the defendant assured the vendors of the plaintiff that he would give up possession after he was given alternative accommodation by the Government. A squatter or trespasser, who does not set up a claim of right cannot plead adverse possession and no length of mere squatting possession is a good defence in a suit for possession by the true owner. See Watson v. The Government, 1865 Beng LR (Supp. Vol.) 182 at p. 196 (FB); Suraj Ahir & Others v. Prithinath Singh & Others, (1963) 2 SCJ 140 : (AIR 1963 SC 454); Moosan Aidravassu v. Mani, AIR 1957 Trav-Co 14. The learned Subordinate Judge seems to have been influenced by the facts that the defendant had been in the disputed house for more than twelve years and that he had taken electric connection and had been paying tax of the disputed house to the Municipality.
10. Those facts, as stated above, do not at all support the defendant's case of adverse possession. In these circumstances, we are unable to uphold the judgment and decree of the learned Subordinate Judge dismissing the suit. In our view, the plaintiff's suit should have been decreed.
11. For the reasons aforesaid, the judgment and decree of the learned Sub-ordinate Judge are set aside and the suit is decreed with cost. The plaintiff's title to the disputed house as described in the Schedule to the plaint, is declared. The defendant is directed to vacate and deliver vacant and peaceful possession of the disputed house to the plaintiff on or before February 29, 1976. In default, the plaintiff will be entitled to get vacant possession of the disputed house in execution of the decree. The plaintiff will be entitled to mesne profits which will be ascertained by the Court below in accordance with the provision of Order 20, Rule 12 of the CPC.
12. The appeal is allowed, but in view of the facts and circumstances of the case, there will be no order for costs.
13. Sharma, J.:— I agree.
14. Appeal allowed.
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