IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.102 of 2009 1. RAMDEO SINGH, SON OF LATE HIRA LAL SINGH. 2. DINESH SINGH. 3. GANESH SINGH. BOTH SONS OF RAMADHAR SINGH. 4. JAGDISH SINGH, SON OF LATE HIRALAL SINGH. RESIDENTS OF BHAGAT TOLI ROAD, P.O., P.S., DISTRICT-KISHANGANJ. …………..........DEFENDANTS/APPELLANTS-APPELLANTS. Versus 1. MOST.GINNI DEVI, WIFE OF PREM SUKH AGARWAL. 2. SHANKAR AGRAWAL, ADOPTED SON OF PREM SUKH AGARWAL AND NATURAL SON OF MOTI LAL AGRAWAL. BOTH RESIDENT OF BHAGAT TOLI ROAD, P.O., P.S. AND DISTRICT-KISHANGANJ. ……………...PLAINTIFFS/RESPONDENTS-RESPONDENTS. ----------- For the Appellants : M/s. Pankaj Kumar Sinha, Diwakar Sinha & Kamal Kishore Jha, Advocates. For the Respondents : M/s. Mahesh Narayan Parbat, Sanjay Kumar Jha, Praveen Prabhakar & Mritunjay Kumar, Advocates. ------------- 10. 24.8.2010. Heard learned counsel for the appellants and the respondents. This appeal is directed against the judgment and decree dated 6.12.2008 passed by the Additional District Judge(Fast Track Court-V), Kishanganj, whereby he has dismissed the Title Appeal No.13 of 2002 and affirmed the judgment and decree dated 31.1.2002 passed in Title Suit 2 No.29 of 1995 by the Munsif-II, Kishanganj, decreeing the concerned suit. The Title Suit No.29 of 1995 was filed by the plaintiff for declaration of his right, title and interest over the Schedule-A properties as described in the plaint and for declaration that the defendants were merely licensees of the suit properties and also for recovery of its possession apart from damage. The case of the plaintiff is that originally the suit land belonged to Mostt. Sohagia Devi and after her death, her heirs came in possession over the suit premises and one of such heirs, namely, Munga Lal Bhagat, executed the registered sale deed dated 28.12.1959 with respect to the land described in Schedule-A of the plaint in favour of the plaintiff and the plaintiff was put in possession over the same. The suit land was purchased by the plaintiff for construction of his residential house. Subsequently, the plaintiff’s name was mutated in the record of the State of Bihar and he started paying rent and obtained receipts. In the municipal records also, the name of the plaintiff was entered and he used to pay holding tax etc with respect to Municipal Survey Khata No.20 and Municipal Survey Plot 3 No.29. It has further been alleged in the plaint that prior to the purchase of the suit land, some cart men were residing after making some huts and tin sheds as licensees and caretakers of the vendor. However, prior to the purchase, such caretakers undertook that they will vacate the possession as and when asked. Thus, the said cart men including the defendants remained in permissive possession of the suit land as licensees, however, when such request was made to the defendants to quit and vacate the said huts and sheds so that the plaintiff could construct her own building, the defendants refused the same compelling the plaintiff for instituting the present suit. The defendants-appellants appeared and contested the suit by filing written statement. Their case is that the ancestors of the defendants used to live on the bank of Ramjan river and they have filled up the suit land with mud, earth and sand and made it habitable and used to live there by erecting thatched house and thereafter tin house etc. and have started their business to sell milk which is continuing since then. The defendants-appellants claim that they have remained in physical possession of the suit land without any interruption for several decades. The defendants denied the 4 entire assertions regarding the entry in Batwara Survey Khata No.453 alleging that there is no existence of such Batwara Survey in the eye of law. They have also denied the ownership of Mostt. Sohagia Devi, the mother of the vendors of the plaintiff and stated that the entry in the Municipal Survey Record of Right is not valid but the same had been fraudulent and the sale deed is also false and illegal. They have refuted the plaintiff’s claim of right, title, or possession over the suit land and have stated that, in fact, they have acquired right and title over the same by prescription. The defendants by way of alternative submissions have stated that they have perfected the title of possession adverse to the owner. The trial court upon consideration of materials on record and after hearing the rival submissions of the parties has held that the plaintiff has valid right, title, interest and possession over the suit land and only a small portion of land remained in possession of the defendants as licensees of the plaintiff. On the point of adverse possession the trial court has held that there is no plea in the written statement that as to when and from which date such adverse possession has commenced and also since he has challenged the title and 5 ownership of the plaintiff, such claim of adverse possession is meaningless and contradictory. Thus, the suit was decreed and the defendants were directed to vacate that portion of land which have been occupied by them. The defendants preferred Title Appeal No.13 of 2002. However, the appellate court also upon consideration of materials on record has dismissed the appeal and affirmed the judgment and decree passed by the trial court. Learned counsel appearing for the appellants submitted that the defendants have denied the title of the mother of the vendors of the plaintiff, namely, Mostt. Sohagia Devi as Batwara Survey has no legal consequence. Their case is that the sale deed is sham and forged and fabricated one. In the above view of the matter the plaintiff could not evict them from the suit land. So far as the adverse possession is concerned, learned counsel submitted that this plea was taken only as a alternative remedy. It has also been submitted that the claim of the plaintiff is that the defendants are the licensees but for grant of such license of permissive possession, there must be a valid document registered under the provisions of Registration Act. Learned counsel for the respondents submits that 6 for grant of permissive possession as licensee no document is required under law as the licensee is not described under the Transfer of properties Act and the same is not covered under the provisions of Section of Section 105 of the Transfer of Properties Act as it is not a transfer of right for consideration rather the same is only a permission given for utilizing the property for the time being. That apart, it has also been submitted that even if it is assumed for the time being that the vendors of the plaintiff has inducted the defendants as caretakers even then since the plaintiff is not concerned with that as he has not inducted the defendants as caretakers rather he has permitted them to live till the requirement of the plaintiff as a licensee. This Court also finds substance in the submissions raised on behalf of the Respondents. The trial court as well as the appellate court have extensively considered both the oral and documentary evidence and have held that the registered sale deed of the year 1959 has remained unchallenged for several decades. The defendants though have stated in their written statement that Mostt. Sohagia Devi does not have the title, however, he has not been able to substantiate his allegations by leading any evidence in this 7 regard and also as to who is the real owner of the property in question. Thus, It has been held by both the courts below that merely making a statement will not be enough in view of the existence of a document of registered sale deed of the year 1959 which remain unchallenged for 40 years specially when subsequent to such sale deed entries were made in the records of right of the State of Bihar as well as Municipal Corporation. The courts below have also held that though the defendants have denied the title of the plaintiff or his vendors but they have completely failed to adduce any oral or documentary evidence on the point of title of the suit land. Both the courts have recorded a concurrent finding that the peaceful possession over the small portion of the transferred land in favour of the plaintiff, since the defendants could not prove that it was hostile to the plaintiff rather it has been held that the possession was permissive and it would have to be treated as in possession as licensee with the permission of the plaintiff and his vendor. It is well settled that merely a long possession cannot perfect the title of the possession holder specially if such possession was permissive one. Both the courts below have held that the permissive possession can be oral and tacit. 8 In the opinion of this Court, learned counsel appearing for the appellants could not point out any substantial error committed by the courts below. The decisions of the courts below are concluded by concurrent findings of facts. Thus, this Court does not find any merit in this appeal. Accordingly, this Second Appeal is dismissed. P.S. ( Dr. Ravi Ranjan, J)