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Calcutta High Court
Sk. Saidur Rahaman & Ors. vs Sk. Khajo Box on 28 July, 2000
Equivalent citations: (2000) 3 CALLT 429 HC
Author: S Bhattacharjee
Bench: S N Bhattacharjee


S.N. Bhattacharjee, J.

1. By an order dated 16.8.89 the Division Bench while admitting the appeal directed that the appeal would be heard on the ground No.6 and also additional grounds. The substantial point of law involving in this case is formulated as under :–

(i) Whether the appellants/defendants acquired title by reason of continuous possession since the time of their predecessor for more than 12 years in the suit plots on the basis of the unregistered hivanama dated 21.6.1951 executed by Sabedain favour of her husband Dilwar despite the fact that Dilwar and his wife Sabeda lived together and whether such possession on the basis of the invalid deed was adverse to Sabeda.

2. The defendants of the original suit are the appellants herein. The suit plots belonged to Sabeda who executed deed of sale in respect of the suit property in favour of the plaintiff who did not get possession of the suit land as the same was in possession of the Defendants. In the R.S.R.O.R the name of the predecessor of the defendants has been recorded in possession column and taking advantage of the said entries the defendants are not allowing the plaintiff to enter into the suit property. The defence was that Sabeda gifted away the said plots by an unregistered hibanama dated 21.6.1951 in respect of 5 suit plots in favour of her husband Dilwar. Dilwar took possession of the five plots asserting his own rights since the date of htbanama and got his name recorded in RS.RO.R. Having acquired title by adverse possession for more than 12 years the defendants have acquired indefeasible title in the suit properly. The deed of the plaintiff purportedly executed by Sabeda was collusive one and did not pass any title in favour of the plaintiff.

2. Both the learned Courts below have come to the finding that the plaintiffs have acquired title by virtue of Kobala dated 3.6.1971 but they did not get into the possession of the suit property. The defendants and their father Dilwar had been in possession of the suit property but their possession was not adverse against Sabeda. Accordingly, the suit having been filed within 12 years from the date of execution of the kobala the plaintiffs are entitled to get the decree for khas possession.

4. Mr. Das Gupta, the learned counsel appearing for the appellants has argued before me that the findings of both the Courts below suffered from the misconception that the same standard of evidence as required in the case of a person being in unlawful occupation claiming title by adverse possession is also required in the case of a person entering into possession by invalid documents. According to learned counsel the possession of Dllwar became adverse since the date of execution of the invalid hlbanama and no over act by asserting hostile title is necessary to prove his possession being adverse against the real owner, Sabeda. In support of his argument Mr. Das Gupta cites a decision in Laxmi Gouda & Ors. v. Dandasi Couda & Ors. wherein their Lordships held.

“The expression ‘adverse possession’ means hostile possession i.e. possession which is expressly or impliedly in denial of title of ihe true owner. This principle has been recognised in numerous decisions though expressed in different ways. Where the acts of the person is possession of a property are irreconcilable with the rights of the true owner, it has been often held that such acts of the person in possession would constitute ‘adverse possession’ as against the true owner. The alienee under a void transaction acquires no title to the property conveyed in his favour and his possession is, therefore, wrongful from the very inception. in a decision (Collector of Bombay v. Municipal Corporation of the City of Bombay) their Lordships held that a person having no legal title but nevertheless holding possession of the land under the colour of an invalid grant being not referable to any legal title, it was prima facie adverse to the owner of the land. The same view was approved and followed in the decision (State of West Bengal v. The Dal housie Institute Society). This Court while considering the nature of possession under a deed of mortgage which was invalid, held that such possession is prima facie adverse to the lawful owners of the land, from the very moment such person took possession of the land.”

5. Mr. Roy Chowdhury, the learned counsel for the respondent has contended that possession of Dilwar cannot be adverse since the date of execution of unregistered hlbanama even though it is admitted that Dilwar got his name recorded in the R.S.R.O.R., and looked after the property by reason of the fact that Sobeda was all along resided with him and such possession by the husband over wife’s property does not render the same adverse. In support of his contention Mr. Roychowdhury cited a decision in Kankarathanammal v. Loganatha Mudaliar & Anr. wherein their Lordships held,
“It is true that the actual management of the property was done by the appellant’s father; but that would inevitably be so having regard to the fact that in ordinary Hindu families, the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that appellant’s mother did not take actual part in the management of the property would not materially affect the appellant’s case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellant’s father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the possession is inconsistent with the title of his wife to the said

properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciated the effect of the several admissions made by the appellant’s father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellants’s mother in her own name though the consideration which was paid by her for the said transaction has been received by her from her husband.”

6. The admitted positions in this case are that Dilwar was already in possession with her wife Sobeda before the execution of the unregistered hlbanama and continued to be in possession since the execution of that hibanama dated 21.0.1951. He got his name recorded in the R.S.R.O.R. in respect of five plots under hibaname. The name of Sobeda has been recorded in respect of other plots. It has been declared in the deed that the possession of the properly under the gift has been given over to the donee, along with the deed of gift. What is the effect of such possession when the parties are husband and wife?

7. In Ramsingh v. Roopsingh wherein it has been held,
“Possession pursuant to an agreement to sell the land becomes adverse from the dale of the agreement. Their Lordships of the Supreme Court held in Sundersingh v. Narayansingh (civil appeal No. 816 of 1966 decided on 3rd April 1969) (reported in 1969 SCO 900) that when a person is put in possession of property pursuant to an agreement of sale, the proposition that his possession is permisive until he is able to establish by definite evidence the point of time from which his possession became adverse against the owners cannot be regarded as laying down the correct law. The decision of the apex Court has been followed by this Court in Govind v. Rama (S.A. No.491/1966 decided on 25.2.77 at fndore) to hold that from the date of agreement to sell, since when the defendant continued to be in possession of the suit land in pursuance of that agreement, his possession became adverse to the plaintiffs and the plaintiffs suit (Instituted beyond 12 years of that date) was clearly barred by time. That being settled position the Courts below were not right in holding that the possession alleged to have commenced under unregistered sale letter was permissive and not adverse.”

8. In Argara Bhaini v. Kanhei Mishra, it was held that although the sale deed (Ext.12) was an invalid sale, it can be relied upon as explaining the nature and character of possession since 1932. Therefore, the plaintiffs possession continuously from 1932 to 1963 on the strength of an unregistered sale deed amounted in law to their adverse possession and they perfected their title to the suit lands by adverse possession.

9. In Noohu Pathuammal v. Ummathu Ammena reported in AIR 1980 Madras 1966 it was held.

“In the case of gift of immovable property no physical departure or formal entry is required, where the property is used by the husband and wife for their joint residence, or is let out to tenants. The fact that the

husband continued to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the residence was on account of matrimonial obligation and that the rents are collected by the husband on behalf of the wife and not on his own account. It has also been held that no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her.”

10. Mr. Roy Chowdhury. appearing for the respondent has pointed out that Dilwar subsequently in the year 1974 got another deed of gift registered by Sabeda and this fact indicates that he did not possess the suit property denying title of Sabeda and asserting exclusive title adversely to the donor as he recognised her ownership even in 1974. This deed of 1974, however, does not relate to the 5 suit plots under unregistered hivanama of 1951.

11. The decision in Smt. Chandrakantabeen J. Modi & Norendra Jayantilal Modi v. Vodilal Bapalal Modi & Ors. it has been held,
“Establishes the principle that possession of a person having no title in the property under invalid deed of transfer becomes prima facie adverse to that of the owner from the date of his entering into possession when he continues in possession for a period of more than 12 years, title by adverse possession accrues in favour of that person as owner.”

12. In the instant case Dilwar continued in possession of the 5 plots in suit from the date of execution of unregistered hivanama by his wife Sabeda with whom he had been living in the same residence and, thereafter, got his name recorded in the possession column of R.S.R.O.R. The nature of such possession was not permissive but adverse to the real owner and the classical requirement that possession in order to be adverse must be necvl nee clam nee precario is neither possible tn the facts and circumstances of the case nor at all required in case of such transaction between husband and wife living in the same premises and thus the standard of evidence required in case of the strangers need not be required to be established in the facts and circumstances of the case and by virtue of adverse possession of Dllwar for more than 12 years before the execution of the kobala in favour of the plaintiff has acquired perfect title in respect of the 5 suit plots under the unregistered hibanama. The findings of the learned Courts below, therefore, is erroneous and cannot be sustained. Thus, the respondent will not be entitled to get the decree for declaration of title and recovery of khas possession in respect of the five suit plots namely 1138, 1139 and 1142, 1137 appertaining khatlan No.326, 19 appertaining khatian No.205. The respondent will be entitled to get the decree in respect of the other three plots namely 333, 1140. 18.

Appeal is allowed in part.

The suit, therefore, be decreed in part and the Judgment and decree
passed by the learned Court below be modified accordingly. There will be
no order as to costs.

13. Appeal allowed in part

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