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Srimati Pyari (Pyar in Vokalatnama) Deyee Debi and ors. Vs. Sheikh Sakir Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.716
AppellantSrimati Pyari (Pyar in Vokalatnama) Deyee Debi and ors.
RespondentSheikh Sakir Mandal and ors.
Excerpt:
adverse possession - extinguishing right of real owner, what constitutes--continuous possession. - .....the judgment did not disclose that there was any right of the pir other than that based upon adverse possession for 12 years.4. it was contended before this court on behalf of the defendants appellants that the finding of the lower appellate court was not based upon evidence and the evidence, such as there was, was not sufficient to prove adverse possession.5. the case was remanded to the lower appellate court which was directed to find whether the acts of possession, which consisted of people congregating there at the time of the moharram and cooking food for people assembled, were confined to the three cottas for which the plaintiff bad obtained a decree in the court of first instance, or extended over the whole area.6. the learned subordinate judge has some to the finding that.....
Judgment:

1. In this ease the plaintiff, respondent sued for a declaration that the land in suit, about 12 cottas in area, was Pirottar land of which the plaintiff was the Mutwalli. The defendants denied that the land was Pirottar and that the plaintiff was the Mutwalli. They claimed the land as a part of their Zemindari.

2. The Court of first instance gave a decree to the plaintiff in respect of only 3 cottas of land on which there is the shrine of the Pir. The defendants did not object to that decree, but the plaintiff appealed to the lower Appellate Court and that Court came to the conclusion that the Muhammadans were in possession of the land for over 12 years as belonging to their Pir and that, therefore, the plaintiff was entitled to a decree.

3. The judgment did not disclose that there was any right of the Pir other than that based upon adverse possession for 12 years.

4. It was contended before this Court on behalf of the defendants appellants that the finding of the lower Appellate Court was not based upon evidence and the evidence, such as there was, was not sufficient to prove adverse possession.

5. The case was remanded to the lower Appellate Court which was directed to find whether the acts of possession, which consisted of people congregating there at the time of the Moharram and cooking food for people assembled, were confined to the three cottas for which the plaintiff bad obtained a decree in the Court of first instance, or extended over the whole area.

6. The learned Subordinate Judge has some to the finding that the acts of possession were exercised on the entire disputed land including the 3 cottas decreed by the Munsif, but that those acts of possession cannot be said to have been exercised for more than 12 years, nor can it be said that these acts of possession were continuous. The defendants-appellants have again raised the same contentions which they raised before the remand, viz., that the possession was not, adverse and continuous.

7. In order to constitute adverse possession by which the right of the real owner may be extinguished, the possession must be continuous for a period of 12 years. Due learned Subordinate Judge has found that it was not continuous for such a period. He also finds that cooking was done on different portions of the disputed land in different years. It must be borne in mind that the land is waste and remains under water in certain seasons of the year.

8. Having regard to the findings arrived at, we think that the decree of the lower Appellate Court must be set aside and the decree of the Court of first instance restored.

9. We make no order as to costs.


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