RANJIT KUMAR BHOWMIK Vs. SUBODH KUMAR ROY

JUDGEMENT

(1.) 1. The suit was instituted for recovery of khas possession upon declaration of plaintiffs title and for permanent injunction and damages etc. Initially, the plaintiff lost the suit and an appeal was preferred. The Appellate Court was pleased to pass an order of remand. Although no order of remand is available in the file but the same was remanded on the ground of framing the issues in connection with the adverse possession admittedly and also on the ground of limitation. From the issues as framed by the Court of first instance, I find that the Issue No. 7 is in respect of adverse possession. No issue on the ground of limitation has been specifically framed. The suit was again dismissed. The Issue No. 7 being the issue of adverse possession had been dealt with by saying that the fact of dispossession as on 10th January, 1971 had not been proved. Admittedly, no documentary evidence in respect of adverse possession had been taken note of. On scanning of oral evidence of D.W. 1 and D.W.2, the Court found that the defendants-respondents were in possession of the land in dispute for 25 years. The Court of first instance held that it was also true that the defendants-respondents had acquired an adverse possession on the suit land by lapse of time i.e. more than 12 years. Again, an appeal was preferred. The Appellate Court framed certain points for the purpose of coming to an appropriate conclusion. Out of such point, the point of adverse possession and limitation were taken. The First Appellate Court came to a conclusion by analysis of evidence that the defendants-respondents had not been able to prove their title either by transfer or by acquisition on the ground of long adverse possession. Their possession for 12 years as above had not been believed by him. But the plaintiff cannot also be entitled to a decree of khas possession unless he proves his title and possession over the suit property for about 12 years before institution of the suit. That having not been done: So, his remedy is barred by time. The suit is, therefore, barred by limitation. The additional point which has been taken by the Appellate Court is that the property was alleged to be in the occupation of Tollygunge Municipality and subsequently by Calcutta Municipal Corporation. Therefore, Calcutta Municipal Corporation was a necessary party in the suit. In absence of Calcutta Municipal Corporation, no effective and final decree could be passed. Therefore, the suit is bad for defect of the parties.

(2.) The learned senior Counsel appearing on behalf of the plaintiff-appellant emphasised his argument only on the question of title and adverse possession but no submission had been made in connection with such defect on account of non-joinder of necessary parties. His whole contention was that the title had been proved. There was no need to go into other part i.e. possession etc. These were all consequential in view of establishment of title.

(3.) However, neither the Court of first instance nor the first Appellate Court believed the contention of the plaintiff-appellant in respect of the title. According to both the Courts below the same had not been proved. The real import of the order of the first Appellate Court was neither the title had been proved nor the possession had been proved by either of the parties but the suit must fail on account of the defect of the parties i.e. non-joinder of necessary parties. Had there been an argument on account of such point, it would have been much more beneficial for the plaintiff-appellant in the Second Appeal to come to a definite conclusion with this regard but that was not presented. The only conflicting part of the arguments of the learned Counsels before this Court between the parties is the applicability of Article 64 vis-a-vis Article 65 of the Limitation Act.