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Possession Is Mandatory For Controversial Property To Claim Adverse Possession: Calcutta High Court

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Case: Lalbabu Begam alias Lalbanu Begam & Ors. vs Sm Padmamoyee Chai & Ors.

Excerpt

This matter is based on a property where the predecessor (the person who held the property before the current one) of the property wanted to pay off his loans and mortgage but he didn’t sell the property. The predecessor or the owner of the property still holds the property because possession is with him. This matter was taken to Appellate Court for further proceedings. 

Facts of the Case

The predecessor took the case in the district court of West Bengal by instituting Title Suit of no. 93 of 1974 and declared that made a fake deal of sale of the property to secure his loans and mortgage but not any particular sale. The predecessor was the owner of the property. The owner of the property was facing a financial crisis at that time. Therefore, it was stated that the possession will remain with the predecessor. No statement was given to any of the defendants for this. Also, then the defendants gave individual statements that the property was sold and transferred. Further, On 23rd December 1975, the district gave their justification that the respondent was a money lender. But he purchased the property by taking a loan from any other person (his wife), so this wouldn’t be considered that the predecessor borrowed the money. In fact, it was sold as the money came from the wife. The District court moved to the 3 rent receipts which were given by the plaintiff on behalf of the defendant, the Court said that there is no satisfactory evidence on either side of possession, so it was dismissed.

Arguments of the Appellants

On the purpose that the First Court of appeals whereas permitting an application for additional proof underneath Order 41 Rule 27 of the Code admitted certain documents and marked identical without affording any chance to lead counter proof to it. Moreover, there’s no satisfaction recorded by the first court of appeal on the parameters of the provisions contained so as Order 41 Rule 27 of the Code. On the contrary, the applying for additional proof doesn’t satisfy the necessities of the same provision i.e. Order forty-one Rule twenty-seven, and, therefore, it had been not correct on the part of the Appellant Court to permit the same application.

Arguments of the Defendant

The defendant stated that there is not any restriction or limitation in Appellate Court to allow additional evidence if any time required for substantial reasons. He further presents that there can’t be any uncertainty over the extra records tried to be depended upon by his customer being the public report and denoting the same as displays. He presents that the ownership consistently stayed with the offended party definitively in a prior round of case, there is no obstacle with respect to the prosecutor to agitate such issue in a resulting continuing and the court to restore its discoveries immediately. He consequently presents that there is no illness or lawlessness in the judgment.

Court’s Decision

Since the belonging was not with the offended parties and the equivalent has been proclaimed in a previous round of suit for the defendant, the request of adverse possession basically falls immediately. Considering the discoveries made, the judgment and announcement of the First Appellate Court can’t be maintained. The equivalent is consequently saved. The appeal succeeds. Accordingly, the suit filed by the offended party is thus excused.

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