SK SAIDUR RAHAMAN Vs. SK KHAJO BOX

JUDGEMENT

(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 :-

(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 hibanama and got his name recorded in R.S.R.O.R. Having acquired title by adverse possession for more than 12 years the defendants have acquired indefeasible title in the suit property. The deed of the plaintiff purportedly executed by Sabeda was collusive one and did not pass any title in favour of the plaintiff.

(3.) 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 Dilwar became adverse since the date of execution of the invalid hibanama 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. reported in AIR 1992 (Orissa)5 wherein their Lordships held,