- (1.) One Mahamaya was the original 16 annas owner of the property in question. She mortgaged such property to one Kalipada. Kalipada was holding such property as a benamdar of one Priyabala. Mahamaya was not in a position to pay the amount as per mortgage deed. As a result whereof, Kalipada claimed to be the owner of the land and instituted an ejectment suit against Mahamaya. However, even after obtaining ejectment decree, Kalipada did not execute the same, but, allowed her to continue in possession. After death of Kalipada, Priyabala transferred 16 annas share in the property to Mahamaya on 08.12.1962 and on the same day, by a deed of gift, she retransferred the property to one Anil. Anil instituted a suit for declaration and injunction in the year 1966, being Title Suit No. 674 of 1966. Such suit was dismissed for default on 16.02.1970. Anil transferred 16 annas share of the property to one Shefali by a deed of gift, who is the defendant/appellant herein. One Tarasundari, daughter of first wife of Kalipada transferred her alleged 1/3rd share in respect of the self-same property to the plaintiffs/respondents herein. Thereby, the suit arose. The suit is in the nature of partition. The learned Judge of Court of first instance dismissed the suit by taking a view that possession by assertions of open and hostile title and of ouster to the knowledge of the other owners. The case of the plaintiffs/respondents is that there are three share-holders of Kalipada's property having 1/3rd share each. Tarasundari, daughter of the first wife is holding 1/3rd share. Priyabala, second wife, is holding 1/3rd share and Malina, daughter of first wife is holding 1/3rd share. Thus, Priyabala cannot transfer 16 annas share in the property of Kalipada to Mahamaya consequently to Anil and further consequently to Shefali. In other words, Shefali cannot seize and possess 16 annas share in the property. However, the Court of first instance categorically held as follows: "But despite the passage of the Benami Transaction (Prohibition) Act, 1988 prohibiting any judicial enquiry of such transfer even of pre-act transactions after the coming into force of that Act, the evidence on record are clearly indicative that subsequent acts of the parties created such of the situations. I would have considered twice on accepting such contention of benami transaction had there not been alternative defence of acquisition of an indegrent title by adverse possession and by way of ouster by Anil Kumar Mukherjee to Tarasundari or heirs of Malinabala. The numerous propositions of law enunciated in several decisions as referred to by the defendant No. 1 can only be channalised in one stream that of possessing adversely and hostilely in open and not secret assertion to title coupled with putting out of possession of a rightful owner, by a (page 28 begins) a stranger, co-owner or even an alinee from a co-owner and that assertion is to the very knowledge of such rightful owner and such assertion being a points inconsistent with any such joint possession. We have already discussed the evidence, both oral and documentary on that score and at no point of discussion we could come accross that there was any scope of doubt that possession of Anil Kumar Mukherjee was not open and hostile and in assertion of absolute title and possession by way of ousting Tarasundari or Malina's heirs since after purchase on 18.12.62 and by way of ouster since the end of 1965. At best, the acts of the aliness as evident from the oral and documentary evidence on record turned to be not only open and hostils and by way of ouster but also inconsistent with the maintenance of the doctrine of joint possession. I have also discussed that mere institution of a suit for declaration of absolute title was not par se inconsistent with uninterrupted possession absent of other materials. I have also discussed that in the circumstances of the case, plaintiffs could have attempted at a fair reading of law's requirement if they would have examined Tarasundari or other heirs of Malinabala. It is not to be missed that defendant No. 2 group did not come to contest the suit either. (page 29 begins) To reiterate, plaintiffs is the case for partition based on title of their vendor Tarasundari. I have already stated earlier that the plaintiffs missed the opportunity to examine her also for a fairer vehiment if any. I have also discussed. That even in the plaint and in evidence, there is assertion that Tarasundari for the first time demanded rent from the tenants in November, 1980 but of no effect. That all showed that defendant No. 1 or prior to her, Anil Kumar Mukherjee exclusively enjoyed the rent usufructs from the tenants which are all inconsistent in the maintenance of the theory of joint property. That is turn is clearly indicative that such deprivation was very well within the knowledge of Tarasundari or other heirs of Malinabala. I have further stated that plaintiffs failed to prove that Anil Kumar Mukherjee realised rent also on behalf of Tarasundari or heirs of Malinabala. These coupled with other acts of possession like mutation of names in the Corporation assessment register, paying of taxes attornment to tenants or consequent realisation of rent or even construction further after obtaining sanctioned plan and are clearly indicative of possession by assertions of open and hostile title and of ouster to the knowledge of other rightful owner, namely Tarasundari or heirs of Malinabala. (Page 30 begins). If that be the case, there is or can be no other binding that such adverse possession started after the acquisition of title and possession by Anil Kumar Mukherjee even since the deed of gift dated 8.12.62.1 have also discussed that mere institution of earlier suit and that too in the year 1966 or its dismissal for default par se does not indicate that Anil Kumar Mukherjee was not in possession thereof particularly when that was a suit only for declaration of absolute title in the suit property and not for recovery of possession either. That being so, there is no escape but to hold that the defendant No. 1 through her vendor Anil Kumar Mukherjee perfected title by acquiring an independent title by adverse possession and by way of ouster to Tarasundari or heirs of Malinabala over the statutory period of twelve years. If that be the case plaintiffs have also not come to file the suit within the period as prescribed under Section 65 of the Limitation Act, 1963. The issues are thus answered accordingly in favour of the contesting defendant No. 1 and against the plaintiffs."
(2.) The question of benami transaction is not before me. The only point struck mind of the learned Judge of the first appellate Court to that the adverse possession was arrested between the period of filing of the suit for declaration of injunction by Anil in the year 1966 till its dismissal for default on 16th February, 1970. Therefore, there is no proof of adverse possession for consecutive 12 years. The relevant portion of the judgment is as follows : "In the next I refer to the question of adverse possession. The case of the defendant is that apart from the title acquired by Anil from the deed of gift executed by Mahamaya, Anil perfected his title over the suit land by adverse possession. The general principle is that adverse possession must be continuous. I assume for the sake of argument without conceding that adverse possession commenced from the deed of gift, i.e. 8.12.62. From pleadings as well as from evidence of Anil it appears that in context of disturbance by Tarasundari and heirs of Malina be instituted a suit being T.S. No. 674 of 1966 for a declaration of his title and other reliefs. From evidence of Anil, it appears that in the same suit he obtained an ad-interim injunction order against Tarasundari and heirs of Malina were kept out of possession by the process of law or they had no right of entry in consequence of the order of the Court. In that event, plea of adverse possession cannot be taken against them (AIR 1980 Calcutta 57). Adverse possession held previous (page 8) to the break was completely wipped off. The period of adverse possession in to start afresh, i.e. on and from 16.2.70. From record, it appears that Tarasundari sold her 1/3rd share in favour of the plaintiff by deed dated 19.2.81. It simplies that before the period of limitation Tarasundari sold her 1/3rd share in favour of the plaintiffs. The defendant No. 1 set up a title in law (by deed of gift) and title by adverse possession of her vendor. If the defendant No. 1 who is in possession according to a purported title and she defends that title although she might have defended simply on her vendors 12 years possession in such a case if the purported title is declared had she cannot rely upon her vendors possession as adverse. Admittedly, the defendant No. 1 has 1/3rd share in the suit property. She must specifically locate the balance 2/3rd share in the suit property in which she claims adverse possession. Possession originating from title cannot be intermingled with adverse possession.. The fact of mutation of the name of Anil with the C.M.C. in respect of the suit property or collection of rents from the tenants from the suit property cannot constitute adverse possession when there is short of limitation. In view of the above, I am not in agreement with the findings of the learned Asstt. District Judge. I hold that the plaintiffs by deed dated 19.12.81 purchased 1/3rd share of Tarasundari in the suit property. In the result, appeal succeeds. Hence, Ordered That, the appeal be allowed on contest with cost. The judgment and decree of the learned Asstt. District Judge are set aside. The suit be decreed on context in preliminary form against the defendant No. 1 a ex-parte against rest. The plaintiffs 1/3rd share in the suit property is hereby declared. The suit be sent back on remand to the Court below for further steps by the parties."
(3.) Therefore, this appeal arises in the form of First Miscellaneous Appeal. Technically speaking in the order of remand, an appeal is to be called as First Miscellaneous Appeal at the second appellate stage whereas the decree reversed finally by the first appellate Court, it will called as Second Appeal. Little analysis is required in this respect. Order 41 Rule 23 of the Code of Civil Procedure is governing the filed in respect of remand of the case by the appellate Court in respect of preliminary point wherein Rule 23A, of the Code of Civil Procedure is governing the field other than preliminary point. Even in such case, the appellate Court shall have the same power as it has under Rule 23 of the Code of Civil Procedure. In the instant case, decree passed in the preliminary form in a partition suit. The suit was sent back on remand for further steps. Therefore, in effect, it is a reversal decree. Yet at the time of admission of the appeal by a Division Bench of this Hon'bie Court in presence of the respondents, it was recorded that the order of remand was passed by the appellate Court. When it is recorded as an order of remand by a Division Bench, the same is to be heard as First Miscellaneous Appeal'alone. Therefore, no question of technicality is left open for me to consider leaving aside scope of adjudication. The point is that whether the adverse possession of Anil (Sri Anil Mukherjee) is arrested by the suit instituted by him which was dismissed for default or not.;