RSA 161/2010 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY JUDGMENT AND ORDER(ORAL) This appeal by the defendants in Title Suit No.3/1980 (renumbered as Title Suit No.284/1993), is directed against the judgment and decree dated 17 February 2010 passed in Title Appeal No.21/2000 by the learned Civil Judge, Karimgan, dismiss ing the appeal preferred by present appellants by upholding the judgment and dec ree dated 18 March 2000 passed by the learned Civil Judge (Junior Division) No.1 , Karimganj, in the said suit. 2) The respondent No.1 herein as plaintiff instituted the aforesaid suit ag ainst the appellants herein as defendants, and the respondent Nos.2 to 6, as pro forma-defendants, praying for declaration of her possessory right over the land measuring 2 Bigha, fully described in the schedule to the plaint, for confirmati on of possession as well as for declaration that the sale deed dated 20 May 1977 executed by her husband in favour of the predecessor-in-interest of the present appellants as void, and also for permanent injunction, contending inter alia th at she has acquired the right over the land by virtue of the sale deed dated 18 May 1970 executed by the original owner in her favour, which, however, was shown to have been sold on 20 May 1977 by her husband in favour of the predecessor-in -interest of the defendants, though he had no right, title and interest over the said land. The defendant Nos.1,3 & 5 had contested the suit by filing their wri tten statement contending inter alia that Kumud Ranjan Dey, the husband of the p laintiff, was the original owner, the land being purchased in the name of the pl aintiff from out-of-his-own fund and he having sold the suit land by a registere d sale deed on 20 May 1977 in favour of the predecessor-in-interest of the defen dants, they had acquired the right, title and interest over the suit land. The s aid suit was filed on 5 April 1980. 3) During the pendency of the suit, an application was filed by the plainti ff/ respondent No.1 under Order 6 Rule 17 of CPC with a prayer for amendment of pleadings in the plaint contending that during pendency of the suit the plaintif f had been dispossessed on 10 May 1990, despite the order of injunction granted, by the main defendants from the land, necessitating amendment of the prayer in the plaint for recovery of khas possession, which was allowed vide order dated 1 2 November 1992. The suit thus was for declaration of possessory right over the suit land and for recovery of khas possession. 4) The appellants/defendants had filed an additional written statement agai nst the amended portion of the plaint contending that they have been using and e njoying the suit property with the knowledge of the plaintiff in particular, and the public in general and hence the suit is not maintainable and consequently t he same is liable to be dismissed, being barred by the law of limitation. 5) The learned Court below had decreed the suit in favour of the plaintiff/ respondent No.1 vide judgment dated 18 March 2000, which was put to challenge b y the appellants/defendants before the learned Civil Judge (Senior Division), Ka rimganj, in Title Appeal No.21/2000, which was allowed by setting aside the judg ment and decree dated 19 April 2003 passed by the learned trial Court, thereby d ismissing the suit of the plaintiff/respondent No.1. 6) The present respondent No.1/plaintiff, being aggrieved by the said judgm ent and decree dated 19 April 2003, had preferred RSA no.120/2003 before this Co urt, which was heard on 9 September 2008, on the substantial questions of law: w hether the learned lower appellate Court erred in law in dismissing the plaintif f’s suit based on title, only because of her omission to incorporate the prayer for recovery of possession within twelve years of her dispossession there-from. 7) Vide judgment and order dated 9 September 2008, this Court having notice d that no finding has been recorded by the learned first appellate Court relatin g to the adverse possession of the defendants and also the date when the possess ion of the defendants had become adverse , if any, to the interest of the plaint iff, remanded the mater to the learned first appellate Court for deciding the sa id question, however confirming the decree declaring right, title and interest o f the plaintiff/respondent No.1, as decreed by the learned trial Court. 8) The learned first appellate Court, thereafter, on remand, vide aforesaid judgment dated 17 February 2010 dismissed the appeal, being Title Appeal No.21/ 2000 by holding that the defendants/appellants could not prove the ingredients t o constitute the adverse possession, and even if, May 20, 1977, when the defenda nts claimed to have purchased the land from the husband of the plaintiff No.1, i s taken as the date from which the defendants are in possession, the suit having been filed on 5 April 1980, the same is not barred by the law of limitation, as amendment for recovery of khas possession, allowed on 12 November 1992, relates back to the date of filing of the suit, that is, 5 April 1980. Hence, the appea l. 9) I have heard Mr PK Roy, learned counsel for the appellants, and Mr GN Sa hewalla, learned senior counsel appearing for the respondent No.1. 10) Learned counsel for the appellants, referring to the impugned judgment a nd decree dated 17 February 2010, has submitted that though the learned first ap pellate Court is the final Court-on-facts, it is required to take into considera tion the entire evidence on record before recording any finding relating to adve rse possession, which has not been done. According to learned counsel, without d iscussing the entire materials available on record, the learned Court below has recorded the finding that the defendants/appellants could not prove the ingredie nts to constitute the adverse possession. It has also been submitted that since on and from 20 May 1977, the date when the plaintiff No.1’ husband had sold the suit land, the appellants/defendants have been in open and uninterrupted possess ion of the suit land adverse to the interest of true owner, the suit for recover y of khas possession has to be brought within twelve years from that day, and in the instant case, as the prayer for recovery of khas possession was introduced in the suit by way of amendment on 12 November 1992, such amendment cannot relat es back to the date of filing of the suit, since the defendants’ title has, befo re that date, ripened by right of adverse possession, that is, by prescription of law. Learned counsel, in support of the contention has placed reliance on a d ecision of the Apex Court in Sampath Kumar vs. Ayyakannu and another, AIR 2002 S C 3369. The learned counsel has submitted that the appeal be admitted for hearin g on the following substantial question of law: Whether the prayer for recovery of khas possession, introduced in the plaint by way of amendment on 12 November 1992, shall relate back to the date of filing of the suit i.e. 5th April 1970 and if not, whether suit of the plaintiff is barre d by law, having not prayed for recovery of khas possession within 12 years when defendants/appellants came into possession. 11) Learned senior counsel for the plaintiff/respondent No.1, on the other h and, has submitted that it is evident from the impugned judgment and decree that though the defendants claimed that they are possessing the suit land adversely by denying the title of the lawful owner and openly and uninterruptedly, they co uld not substantiate the ingredients so as to constitute the adverse possession, that is, open, continuous, hostile and uninterrupted possession for the for a p eriod of twelve years or more. According to learned senior counsel, even assumin g that on and from 20 May 1977 the defendants/appellants are possessing the suit land, the suit for declaration of right over the said land having been filed on 5 April 1980, it cannot be said that the defendants’ possessory right has not b een questioned by the true owner, even though the prayer for recovery of khas po ssession was introduced by way an amendment on 12 November 1992. Learned senior counsel, therefore, submits that no substantial question of law is involved so as to admit the second appeal for hearing. 12) I have considered the submissions of learned counsel for the parties and perused the judgment and decree passed by the learned court below, including th e judgment and order dated 9 September 2008 passed in the earlier round of secon d appeal, being RSA No.120/2003. 13) It appears from the pleadings of the parties, as is discussed above, tha t the suit filed on 5 April 1980 was for declaration of posessory right over the suit land. The plaintiff No.1 had also prayed for confirmation of possession, w hich was subsequently amended to recovery of khas possession. 14) In RSA No.120/2003, vide judgment and decree dated 9 September 2008, the right, title and interest of the plaintiff/ respondent No.1 has been confirmed. The case was, however, remanded to the learned first appellate Court to decide Title Appeal No.21/2000 afresh, since no finding about the adverse possession ha s been recorded, as claimed by the defendants and the date, if any, when the pos session of the defendants had become adverse to the interest of the plaintiff. 15) The learned first appellate Court has passed the impugned judgment and d ecree dated 17 February 2000 by holding that the defendants could not prove the ingredients so as to constitute the adverse possession, and even if 20 May 2007 i.e. the date of execution of the sale deed by the plaintiff’s husband is taken as the date from when the defendants’ possession had become adverse, the suit ha ving been filed on 15 April 1980, it is not barred by limitation, as the amendme nt introduced on 12 November 1992 relates back to the date of filing of the suit , that is, on 5 April 1980. 16) The defendants, in their additional written statement, for the first tim e has taken the plea of adverse possession, which is reproduced below: 3) That the defendants have been using and enjoying the suit proper ties beyond the period of limitation within the knowledge of the plaintiff and t he public in general. So, the suit is not maintainable and liable to be dismisse d considering the fact that the suit is barred by limitation. 17) It is a settled position of law that when a plea of adverse possession i s taken, the burden to substantiate the same heavily lies on the person taking s uch plea, as the right of the true owner is sought to be taken away by a person claiming prescriptive right. The person claiming adverse possession has to prove : (a) the date when he came into possession; (b) on and from when he is in posse ssion of the land adverse to the interest of the true owner, and (c) that he ope nly, continuously and without being questioned by the true owner is possessing t he land for twelve years of more. 18) In the case at hand, it is the case of the defendants that they came to possess the suit land for the first time on 20 May 1977, i.e. on the date of exe cution of the sale deed by the plaintiff’s husband, and since then they are poss essing the suit land adverse to the interest of the true owner, i.e. the plainti ff/respondent No.1. As noticed above, the plaintiff had instituted the suit for declaration of her right over the suit land on 5 April 1980 initially with a pra yer for confirmation of possession, which was subsequently amended by order date d 12 November 1992 to recovery of khas possession. The plaintiff, therefore, hav ing filed the suit on 5 April 1980 claiming possessory right over the suit land, it cannot be said that defendants are possessing the land without any disruptio n and without being questioned their possession for a period of twelve years or more, so as to constitute the adverse possession extinguishing the right of the true owner over the land. That apart, the pleadings in the written statement, as noticed above, are not sufficient to establish the plea of adverse possession. The suit of the plaintiff having been filed on 5 April 1980 i.e. within twelve y ears of possession by the defendants/appellants, the same is not barred by law o f limitation. 19) In view of above, the question as to whether the amendment allowed on 12 November 1992 would relates back to the date of filing of the suit i.e. 5 April 1980 need not be gone into. Hence, the judgment of the Apex Court in Sampath Ku mar(supra) has not been discussed. 20) In view of the aforesaid discussion, in my view, no substantial question of law is involved so as to admit the appeal for hearing. 21) In the result, the appeal stands dismissed. No costs