- (1.) The second appeal arose out of challenge of judgment and decree dated 29th November, 2000 and 14th December, 2000 respectively passed by learned Court of Civil Judge (Senior Division) at Kalna, District - Burdwan in Title Appeal No. 5 of 2000 affirming the judgment and decree dated 30th September, 1999 passed by learned Court of Civil Judge (Junior Division) at Kalna, District-Burdwan in Title Suit No. 375 of 1996. The present appellants who are the plaintiffs of the suit have filed this second appeal. Under Order XLI Rule 11 of Code of Civil Procedure, at the time of admission hearing of the appeal on 29th August, 2001, the Division Bench (Coram: Tarun Chatterjee & Asit Kumar Bisi, JJ.) (as their Lordships then were at the material time) admitted the appeal for hearing on framing the following substantial questions of law: - "(i) Whether in view of the admitted fact that the defendants themselves had made out case that they were inducted as licensees by the vendors/plaintiffs/appellants and in view of the case made out by them that there was an agreement for sale of the suit property and entered into by the vendors/plaintiffs/appellants, the Courts below erred in law substantially by not holding that the defendant/defendants could not acquire the right, title and interest of the suit property by way of adverse possession. (ii) Whether, in the facts and circumstances of the case, the Courts below erred in law substantially by not holding that the case of adverse possession on the basis of the defence of the defendants/respondents could not at all be found."
(2.) The case of the plaintiffs in the: suit was to this effect: - "R.S. Khatian No. 675 Dag No. 1543 measuring 3-1/4 or 2 cottahs with the homestead under mouza and P. S. Kalna, Dist. Burdwan, is the suit property, which belonged to Jitendranath Saha, Upendranath Saha and Surendranath Saha, Renubala Dasi purchased such property in 1961 by a registered sale deed. In course of enjoying ownership and possession therein she gifted the same to daughter Rekharani Dasi by executing registered deed of gift in 1984. Rekharani started living therein ever since. As she had been deserted by husband and she had good relationship with the defendants (hereinafter called respondents) she granted them licence to reside in the suit property and they resided therein. Subsequently, Rekharani changed her place of residence and sold the suit property to the appellants by virtue of registered sale deeds and prior to such sale the respondents along with Sadhan Mondal (non-suited) who has also been residing as licensee, under Rekharani undertook that they would quit and vacate the suit property one month after the sale in favour of the appellants. But, the defendants resiled from their commitments. As they did not quit and vacate the property despite several rounds of talk and made preparation for making new construction in the suit properties with a view to change its nature and character, the plaintiffs had to file M. P. No. 408 of 1996 under Section 144 Cr. P. C. before learned S.D.E.M, Kalna. After institution of such proceeding the plaintiffs sent notice to the defendants through their learned Advocate termination the licence. They received such notice by signing A.D. cards. On intervention of the local persons and the order of the learned S.D.E.M. the defendants could not raise any construction in the property. Since, they have not vacated the suit property despite termination of their licence and also as the plaintiffs apprehended irreparable loss and injury if the defendants succeeded in effecting change in the property they filed the suit for recovery of khas possession of the property."
(3.) It was the case of the defendant of the suit to this effect: - "Defendants contested the suit by filing a joint written statement. Challenging the maintainability of the suit on technical grounds viz. of plaintiffs and their predecessors being out of possession for over 12 years and for non-filing of the suit within the prescribed time limit the suit barred by limitation, want of cause of action, non-payment of proper Court fee, non-joinder of necessary party, applicability of the principle of estoppel, waiver and acquiescence, mis-description of the suit property and denying the material allegations of the plaintiffs, defendants contended that they resided at Talbona. Grandson of Renubala being familiar with them he acted as intermediary between them and Renubala in the matter of sale of the suit property in their favour and he brought them to the suit property. He had discussion with his grandmother who agreed to transfer two sataks of land situated at the eastern side of Renubala's Ghar and the defendants agreed to purchase the said land at Rs. 1,000/- out of which Rs. 500/- was paid to her. The defendants acquired possession in the property about 20 years ago. Renubala assured them that she would execute and register deed of sale in their favour on receipt of the remainder consideration. Defendants constructed separate Ghars in the suit land and began residing therein. They approached Renubala to execute the deed in their favour on acceptance of the balance consideration. But, she declined to execute the deed on the plea of increase in the value of the land. Defendant No.2 constructed a BEDI and a CHALA for Goddess Kali 16 years ago to the contiguous east of his Ghar and has been worshipping Goddess Kali every year. According to them Renubala caused the breach of contract by not accepting the balance amount. The defendants have been residing and performing puja uninterruptedly, peacefully and nobody has ever raised any objection against the defendants use of property. The transfer of the property by Renubala by executing a deed in favour of her daughter in 1984 is a mere paper transaction. She never had possession in the property possessed by the defendants. She had no right to gift the property. Rekharani had never acquired possession therein. She had no interest in the property. The defendants do not reside in the suit property on the licence of the plaintiffs predecessors. Besides their own interest, the defendants have been in continuous, uninterrupted possession of the suit property for over 12 years to the knowledge of Renubala and Rekharani. Therefore, they have acquired good title therein. Thus, they prayed for dismissal of the suit.";