Hrishikesh Banerji, J. - (1.) This appeal is directed against the Judgment and decree passed by the learned Additional District Judge, 4th Court, Midnapore confirming the Judgment of the learned Munsif, 1st Court, Contai decreeing the plaintiffs/respondents, suit for recovery of possession of the suit structure standing on 2 decimals of land in plot No. 292 under Khatian No. 153, P.S. Contai, Midnapore from the defendant/ appellant.
(2.) Before the institution of the present suit in the year 1980 the plaintiffs filed a suit for eviction of the defendant describing him to have been a tenant under the provisions of the West Bengal Premises Tenancy Act, 1956 (the '1956 Act' for short) in respect of the suit property on certain grounds under the provisions of the said 1956 Act. The trial Court dismissed the said suit holding that the defendant was not a tenant but might be a licensee under the plaintiffs. In the appeal preferred against the said Judgment the First Appellate Court in the earlier suit confirmed the finding of the trial Court that the case of tenancy had not been proved. The First Appellate Court, however, set aside the finding of the trial Court that the defendant was a licensee under the plaintiffs. In the appeal the Appellate Court also held that the plaintiffs as owners had title to the suit property but dismissed the suit as the plaint case of tenancy had not been proved. The Second Appeal preferred before this Court-against the said Judgment and decree of the Appellate Court was dismissed by this Court. 3. The plaintiffs thereafter filed the present suit for recovery of possession of the suit property from the defendant on the ground that he has been in occupation of the suit property as a trespasser. The substantial questions of law required to be decided in this appeal are as follows : (]) Whether the findings of the First Appellate Court in the earlier proceedings that the defendant was not a licensee would operate as res judicata in the subsequent proceedings. (2) Whether the Courts below applied the correct tests to determine if the appellant had acquired title to the suit property by adverse possession? 4. Briefly stated the plaintiffs/respondents case in the present suit is as follows : The suit property as described in schedule 'Ka' to the plaint belonged to one Atul Bera, the predecessor-in-interest of the plaintiffs. Their names were recorded in the District Settlement records as well as in the Revisional Settlement of records which were finally published. 5. Atul Bera was in possession of the suit property by virtue of an amicable settlement with his co-sharers and accordingly his name was recorded as the owner of the said holding in the Municipal records of Contai Municipality. Following a suit for partition in the Court of the Second Subordinate Judge, Midnapore amongst all the co-sharers, the plaintiffs and their sisters got their share including the entire 'Ka' schedule property and the plaintiffs became the owners of the entire 'Ka' schedule property after their acquisition of the sisters' share by purchase. 6. The predecessor-in-interest of the plaintiffs and the other co-sharers constructed the structure on the 'Ka' schedule property and they used to look after the said property. The father of the defendant took licence in respect of the suit structure for carrying on business there and he gave up possession when he became old. Thereafter the defendant took licence in respect of the structure situated on the 'Ka' schedule property. The defendant and before him his father used to pay licence fee for possession of the structure situated in the 'Ka' schedule property. 7. The plaintiffs filed Title Suit No. 566 of 1970 against the defendant for his eviction but the said suit was dismissed. The appeal preferred against the said Judgment and decree of dismissal of the suit was also dismissed by the First Appellate Court and the Second Appeal filed in this Court was also dismissed. 8. The plaintiffs thereafter revoked the licence granted to the defendant and asked the latter to quit and vacate the suit property giving reasonable time to the defendant. But as the defendant did not quit and vacate the suit land the plaintiffs filed the present suit for recovery of possession of the suit land from the defendant who became a trespasser in the suit property after the revocation of his licence. 9. The defendant contested the suit filing a written statement denying all the material allegations in the plaint. It is his case that the suit land was a fallow land in which the father of the defendant had constructed the house 60/70 years back and he has been in possession of the suit land along with his family. The specific case of the defendant is. that he acquired title to the suit land by adverse possession by possessing the land for more than 40 years from the period of his predecessor. It is the further case of the defendant that his father had constructed the suit house and after his father's death he has been maintaining the suit house and therefore, the suit is liable to be dismissed. 10. The learned Munsif decreed the suit holding that the defendant had been in occupation of the 'Ka' schedule property as a trespasser and decreeing the suit directed the defendant to vacate the property within sixty days from the date of his Judgment. 11. It is rightly contended by the learned Counsel appearing for the appellant that the Courts below erred in relying on the findings of the First Appellate Court in the earlier proceedings that the defendant/appellant herein was neither a licensee nor had acquired title by adverse possession inasmuch as the earlier suit was dismissed and went in favour of the defendant/appellant herein. In support the learned Counsel for the appellant cites the decision in the case of Fateh v. Swarup 73 CLJ 475. In the said case it has been held that where there are several issues, the decision on each issue operates as res judicata but if a decision on a issue does not support the ultimate decision, it will not be res judicata. Explanation 5 to Section 11 of the Civil Procedure Code also provides that findings on issues against the defendant do not operate as res judicata where the suit is wholly dismissed. 12. The learned counsel for the Appellant also refers to the decision in the case of Mathura Prasad v. Dossibai AIR 1971 Supreme Court 2355 where it has been held that a question relating to jurisdiction cannot be deemed to have been finally determined by an erroneous decision of the Court and that such decision cannot operate as res judicata in subsequent proceedings. 13. Therefore, the findings of the First Appellate Court, in the earlier suit to the effect that (1) the defendant was not a licensee under the plaintiffs and that (2) the plaintiffs are the absolute owners of the suit premises cannot operate as res judicata as the said suit was one for eviction of a tenant and the suit was dismissed on the ground that there was no relationship of landlord and tenant between the plaintiffs and the defendant. 14. Now, let us consider the findings of the trial Court and the First Appellate Court on the question of the defendant's status in respect of the suit property viz, whether or not he has acquired title to the suit property by adverse possession. 15. On the question of adverse possession, the trial Court in the present suit has held that in the earlier suit the First Appellate Court found that the plaintiffs had absolute right and title to the suit property. This finding of the First Appellate Court in the earlier suit does not operate as res judicata inasmuch as the earlier suit was dismissed by the First Appellate Court and the High Court. 16: However, from the oral evidence adduced in the present proceeding before the trial Court it is found that the defendant in his cross-examination states that he does not know who has been the owner of the suit land and when the house was constructed; and that till the date of his deposition he did not know who was the real owner of the suit land. He also deposed that no document relating to the suit land was filed by him and that although he possessed municipal tax receipts he did not file the same in Court. 17. In the case of Ejas Ali v. Special Manager AIR 1935 PC 53(56) their Lordships of the Privy Council observed as follows : "The principle of law is firmly established that a person, who bases his title on adverse possession, must show by adducing unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed." 18. The First Appellate Court also held that mere possession of the property for more than 12 years by itself would not confer a title in favour of that person and that to bar the owner's title there must be absence in possession of the owner and exclusive possession by another and that mere possession for any length of time does not create title by adverse possession. 19. In the present case the record of rights stand in the name of the plaintiffs/respondents. Exbts. 7, 7(a) are the certified copies of the Record of Rights in respect of the property including the suit property and Exbts. 8, 8(b) are the rent receipts in respect of the said property. Municipal taxes receipts (Exbt. 6 to 6(h) in respect of the suit property have been filed and all the documents produced by the plaintiffs stand in the name of the plaintiffs-owners, 20. The aforesaid documents produced by the plaintiffs clearly establish that their title to the suit property did never stand extinguished during the defendant's occupation of the suit structure and that the defendant has been in occupation of the suit property as a trespasser. The defendant has failed to produce any convincing oral or documentary evidence worth the name that he ever occupied the suit property, denying the plaintiffs' title thereto. 21. In such circumstances it has been rightly held by the Courts below that the long occupation of the suit property by the defendant did not extinguish the plaintiffs' title to the said property. 22. In view of the above the present appeal is dismissed. The defendant is directed to make over possession of the suit property to the plaintiffs within six months from date. The parties shall bear their costs throughout. All interim orders stand vacated. . ( Previous Hitlist Next );