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Form No. (J) 2

HEADING OF JUDGMENT IN ORIGINAL SUIT

District: Golaghat

IN THE COURT OF MUNSIFF NO. 1, AT GOLAGHAT

Present: Sri Nirmal Kr. Laskar, AJS

Saturday, the 17th day of September, 2016

Title Suit No. 28 of 2012

Sri Ghanashyam Hazarika

Son of Late Numal Hazarika @ Kalita

Resident of Village Dhekial Gaon

Mouza – Dhekial, Post office – Dhekial

District Golaghat, Assam .................Plaintiff

-Versus-

1. Sri Arun Kakoti

2. Sri Tarun Kakoti

Son of Late Lakhikanta Kakoti

Resident of village Jelehua Gaon

Mouza- Dergaon, District – Golaghat, Assam ..............Defendants

This suit coming on for final hearing on 20.08.2016 in the presence of

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Mr. B. Dutta ...............Learned Advocate for the Plaintiff

None appeared for the Defendants.

And having stood for consideration to this day, the Court delivered the following
judgment:-

JUDGMENT

1. This is a suit for declaration of title and possession on the suit property
on ground of adverse possession in favour of the plaintiff.

2. The plaintiff’s suit in brief is that the plaintiff has been possessing the suit
property since 1992 and this possession was adverse to the interest of the owner
of the property namely Late Lakhi Kanta Kakoti who died sometimes 10 to 12
years back and also adverse to his sons who are the defendants in this suit who
succeeded the estate of their father. The suit property is a land measuring 1
(one) Bigha 0 (zero) Katha 17 (Seventeen) Lechas covered by Dag no. 216
pertaining to Periodic Patta no. 147 of village Dhekial Gaon, Mouza Dhekial in the
district of Golaghat, Assam, which is more fully described in the Schedule of the
plaint. The suit property originally belonged to one Sri Deoti Kalita, Son of Kushai
Kalita (since deceased) and one Sri Numal Kalita, Son of Sun Kalita, since
deceased, being the residents of Dhekial Gaon, Dhekial Mouza, in the district of
Golaghat, Assam. The name of Sri Lakhi Kanta Kakoti (since deceased) had been
mutated in respect of the suit land as purchaser of the same by virtue of an
order dated 18.08.1969 passed in land Auction Sale case no. 788/1968-69 held
by Sub-Divisional Officer, Golaghat in place of pattadar no. 1 and 2, namely,
Deoti Kalita and Numal Kalita. The defendants no. 1 and 2 had never been in
possession of the suit property at any point of time. The defendants no. 1 and 2
never have taken any step to evict the plaintiff from the suit property and the
plaintiff has been possessing the suit land adversely to their interest to the full
knowledge of the defendants and during the life time of Late Lakhi Kanta Kakoti.
As the plaintiff has been possessing the suit land for more than 20 years, he has
claimed right of ownership over the suit property by way of adverse possession.
Hence the plaintiff has instituted this suit for a declaration that he has been in
possession of the suit land adversely to the interest of the true owner, for a

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decree that he has acquired right and title over the suit land by way of adverse
possession, for a decree declaring that the rights of the defendants in the suit
property have been extinguished as a consequence of adverse possession by the
plaintiff, for a decree issuing a precept to the concerned revenue authority
directing him to register the name of the plaintiff in respect of the suit land as
owner, for cost and for any other proper relief.

3. The defendants did not appear before this Court to contest the suit in
spite of due service of summons on them and accordingly the suit proceeded ex-
parte against them.

4. The crux of the point to decide is as to whether the suit land has been
possessed by the plaintiff since 1992 adverse to the interest of the owner of the
same. To establish his claim the plaintiff has adduced the evidence of three
witnesses and exhibited one document.

5. I have heard the argument advanced by learned Counsel for the Plaintiff.

6. DISCUSSION, DECISION AND REASONS THEREOF:

The plaintiff has claimed to have got the right over the suit land by virtue
of adverse possession of the same since 1992. In his examination-in-chief as PW
1 the plaintiff Sri Ghanashyam Hazarika deposed that he has been possessing the
suit land since 1992 without any interruption from anybody. He also deposed
that the name of the father of the defendants was mutated as back as in 1969
but their father did not take possession of the suit land. He also deposed that
after the death of the father of the defendants about 10/12 years back, he has
been continuing his possession over the suit land with full knowledge of the
defendants. The defendants never came to take possession of the suit land from
him. PW 2, Sri Debeswar Bora also in his evidence on affidavit deposed that the
plaintiff has been possessing the suit land for more than 40 years by cultivating
over the suit land. PW 3, Sri Munin Hazarika also corroborated the evidence of
these two witnesses by deposing in his evidence on affidavit that the plaintiff,
who is his father, has been possessing the suit land since the days of his
grandfather by cultivating it and a portion of the suit land has been used as road
by them.

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The plaintiff has instituted this suit under Section 27 of the Limitation Act,
1963 seeking declaration of adverse possession in favour of him against the
defendants in respect of the suit property.

For ready reference the Section 27 of the Limitation Act, 1963 is quoted
below—

“27. Extinguishment of right to property:-

At the determination of the period hereby limited to any

person for instituting a suit for possession of any property, his
right to such property shall be extinguished.”

Section 27 of the Limitation Act, 1963 lays down a rule of substantive law
declaring that after the lapse of the period provided by the Limitation Act, 1963
the right itself is gone and the title ceases to exist, and not merely the remedy.

It is settled law that mere possession even if it is true for any numbers of
years will not cloth the person in enjoyment with the title by adverse possession.
The person claiming adverse possession has to satisfy the important ingredients
of adverse possession namely—

i. He must be in actual possession of the land.

ii. The possession must be adequate in continuity, in publicity and in
extent to show that it is adverse on the owner. The possession must
be open, notorious, actual, exclusive and adverse.
iii. There must be an intention to hold the property by dispossessing the
true owner of the property.

On the adverse possession the Hon’ble Apex Court in P. T. Munichikkanna

Reddy and Ors. Vs. Revamma and Ors. (2007) 6 SCC 59 held that “....... there
must be intention to dispossess. And it needs to be open and hostile enough to
bring the same to the knowledge and plaintiff has an opportunity to object. After
all adverse possession right is not a substantive right but a result of the waiving
(wilful) or omission (negligent or otherwise) of right to defend or care for the
integrity of property on the part of the paper owner of the land”.

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In the instant suit the plaintiff by adducing the evidence has proved that he
has been possessing the suit land for more than 20 years and adverse to the title
of the true owner. He admitted that the suit land was mutated in the name of Sri
Lakhi Kanta Kakati (since deceased), the father of the two defendants in this suit.
The plaintiff by evidence also has proved that he has been enjoying the suit land
adverse to the title holder’s interest after making them known that such
enjoyment is against their own interest. The reluctance on the part of the
defendants to contest the suit and to assert their right over the suit land even
after having knowledge that the plaintiff has claimed a title over the suit land
adverse to their own, implies the wilful negligence on their part to protect their
right on the suit land. Such reluctance on the part of the defendants shows that
they have accepted the hostility of the plaintiff towards their own interest on the
suit land. The intention of the plaintiff to possess the suit land adverse to the
interest of the defendants has been proved by the plaintiff to have been made
known to the defendants.

7. In view of the discussion made above and in absence of any rebuttal

evidence the evidence adduced by and for the plaintiff is found to have remained
unshaken. Under such circumstances there is no ground to doubt the evidence of
the plaintiffs. The evidence available on record is found sufficient to support the
plaintiff’s claim of adverse possession on the suit land. Accordingly, it is held that
the plaintiff has acquired title over the suit land by way of adverse possession as
he has been in possession of the suit land for a period of more than 20 years
continuously, openly, and with intention to dispossess the defendants therefrom.

8. In view of the discussions made above it is held that the plaintiff is

entitled to a decree of right, title and interest over the suit land by way of
adverse possession.

9. ORDER

The suit is decreed ex-parte against the defendants without cost.

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In result, the plaintiff is entitled to a decree of right, title and interest

over the suit land byway of adverse possession.

Prepare the decree accordingly.

Given under my hand and seal of this court on this the 17th day of
September, 2016 at Golaghat.

Munsiff No. 1, Golaghat

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APPENDIX

A) Plaintiff’s Witnesses:

1. PW 1: Sri Ghanshyam Hazarika

2. PW 2: Sri Debeswar Bora

3. PW 3 Sri Munin Hazarika

B) Plaintiff’s Exhibits:

a. Exhibit (1), Jamabandi

C)Defendant’s witnesses: Nil

D)Defendant’s Exhibits: Nil

Munsiff No. 1, Golaghat