BHABANI PROSANNA LAHIRI Vs. MANINDRA CHANDRA ROY CHOUDHURY

JUDGEMENT

(1.) Appeal arises out of a suit for possession of a plot of land marked A in the Commissioner's map on declaration of plaintiffs zamindary right there to Plaintiffs case is that the disputed land is a part of the mal lands of the village Kamal Kachhna of which they are the proprietors, that they were all along in possession of the same till they were dispossessed therefrom by an order of the criminal Court, under Section 145, Criminal P.C. The defence of defendants 1 and 2 is that the disputed land is rent free and that it was never in the possession of the plaintiffs or their predecessors. They also claim title by adverse possession for more than 12 years. The trial Judge held that though the disputed land was mal land of Kamal Kachhna, the defendants had a title of legal origin the exact nature of which was lost in antiquity. In this view the learned Judge did not consider it necessary to come to any finding on the question of adverse possession set up by the defendants. He accordingly dismissed the suit. On appeal by the plaintiffs to the lower appellate Court the learned additional District Judge had confirmed the decree of the trial Court on the ground that the plaintiffs title to the disputed land as zamindars had been extinguished by adverse possession of the defendants for more than 12 years. Hence this second appeal by the plaintiffs: The question whether possession is adverse or not is often one of simple fact, but it may be a conclusion of law or a mixed question.

(2.) It is a question of legal conclusion to be drawn from the findings on simple facts: Luchmeswar Singh V/s. Monwar Hossain,(1892) 19 Cal 253.

(3.) The facts found are: (1) The disputed land is a vacant plot of land which was never under cultivation but was capable of possession; (2) the plaintiffs never exercised any acts of possession down to. 1327 when possession was taken by them forcibly dispossessing the defendants; (3) no actual acts of possession were exercised on the land before 1313 B. S; (4) the defendants stacked bricks on the disputed land in 1313 B.S. with a view to construct a building thereon; (5) the defendants fenced round the disputed land in 1315 B.S. and the fence was in existence for a year or so; (6) two corrugated huts were erected by the defendants on the disputed land in 1315 B.S. but they were removed in Chaitra 1316 B.S.; (7) a pathshala ghur was erected on the south-west corner of the disputed land in 1316 B.S. with the permission, of defendant 2; (8) the defendants successfully opposed in Agrahayan 1316 B.S. the selection of the disputed land as a site for a proposed boarding house for Batra Khettrya students of Government H.E. School at Rangpur; (9) the defendants cleared jungles on the disputed land in 1319 B.S. in pursuance of a notice issued by the Municipality (10) defendants realised rent from a circus party for 15 days in Bhadra 1321; (11) temporary college hostel was erected on the disputed land with the permission of defendant 1 in 1324 and was removed in 1325; (12) by an amicable partition the disputed land was allotted to the share of the defendants and masonry boundary pillars were erected along the northern and eastern limits of the disputed land in 1325; (13) defendant realised rent from a circus party for occupation of the disputed land in Chaitra and Baisakh 1326 B. 8.; (14) Mukunda's jatra was held on the disputed land in Falgoon or Chaitra 1326 with the permission of defendant 1; (15) A circus company attempted in Sravan 1327 B.S. to hold performance on the disputed land by taking settlement from defendants at the rent of Rs. 5 per day, but the performance could not be held on account of an injunction from the Collector and (.16) the defendants are paying Municipal taxes since 1323 B.S. The question is whether these facts establish adverse possession of the defendants for the statutory period. The following principles are well established: