Calcutta High Court (Appellete Side)
Represented By Gourishankar Das & Ors vs Sri Soumen Mukherjee & Ors on 27 February, 2026
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
The Hon'ble Justice Supratim Bhattacharya
SA 22 OF 2023
With
IA No. CAN 1 of 2023
Kishore Sangha an Association or Club
Represented by Gourishankar Das & Ors.
Vs.
Sri Soumen Mukherjee & Ors.
For the Appellants : Mr. Ayan Banerjee
Ms. Debasree Dhamali
Ms. Riya Ghosh
For the Respondents : Mr. Sambhunath De
Mr. Ranjit Kumar Ghosh
Delivered On : 27.02.2026
Supratim Bhattacharya, J.:
1. The present appeal has been preferred by the appellant club being
aggrieved by and dissatisfied with the judgment dated 12.07.2022
passed in Title Appeal No.105 of 2010 by the Ld. Additional District
Judge, Fast Track Court, Chandannagar, District Hooghly. Through
the impugned judgment the First Appellate Court dismissed the title
appeal without any order as to cost and thereby affirming the
judgment delivered on 19.03.2010 by the Ld. Civil Judge (Junior
Division) 1st Court Chandannagar, passed in the Title Suit No. 62 of
1971.
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2. Factual Matrix
Before the Trial Court
The original plaintiff namely Tarapada Mukherjee since
deceased had filed a suit for declaration of title and for injunction
before the 1st Court of Munsif, Chandannagar which was numbered as
TS 62 of 1971.
Against the said plaint, two written statements were filed. One
written statement was filed on behalf of the defendants No. 1(a), 1(b)
and 1(d) namely Parbati Chandra Das, Kamal Kanti Banerjee and
Bejoy Kumar Da and the other written statement was filed by
Jyotindranath Tosh and Sudhanshu Rakshit.
On the basis of the pleadings, the following issues were framed:
i) Is the suit maintainable in its present form and in law ?
ii) Is the suit barred by limitation ?
iii) Is the suit is barred by principle of waiver, estoppel and
acquiescence ?
iv) Is the suit barred by adverse possession for more than 12
years ?
v) Is the suit bad for defect of parties ?
vi) Is the suit barred under Section 34 of the Specific Relief Act ?
vii) Is the suit barred by the provision of Order I Rule 8 of the
Code of Civil Procedure ?
viii) Is the plaintiff entitled to get a decree as prayed for ?
ix) To what relief, if any, is the plaintiff entitled to ?
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x) Has the plaintiff any right, title and interest in the suit
property?
xi) Has the defendant acquired any right, title and interest in the
suit property by way of adverse possession ?
On behalf of the plaintiffs two witnesses deposed namely :-
PW1- Subhas Mukherjee
PW2- Sukumar Chattopadhyay
On behalf of the defendants five witnesses deposed : –
DW1- Parbati Chandra Das
DW2- Pashupati Dey
DW3 – Sudhangsu Rakshit
DW4 – Md. Chand (employee of CMC)
DW5 – Quazi Md. Munir (Investigation Commissioner)
On behalf of the plaintiffs following documents have been
exhibited:
Exhibit-1 : Certified copy of the auction bid dated 15th March,
1911
Exhibit-2 : Deed of Settlement being No. 2172 of 1989.
Exhibit-3 : LRROR in the name of the plaintiffs.
Exhibit- 4, 4(a) and 4(b) : Mutation certificates in the name of
the plaintiffs.
Exhibit-5, 5(a) : Municipal tax receipts.
4Exhibit-6, 6(a), 6(b), 6(c) and 6(d) : Government tax receipts
issued in the name of the plaintiffs.
Exhibit-7, 7(a) : Letter issued by Mayor of CMC dated 16.07.91
and 24/26.7.99
Exhibit-8 : Certified copy of Amount Register of CMC
Exhibit-9 : RS Porcha of the suit property.
Exhibit-10 : Municipal tax receipt of the suit property.
Exhibit-11 : Government rent receipt of the suit property.
Exhibit-12 : Notice dated 17.8.68 issued by CMC.
Exhibit-13 : Sheet Map of 3 No. Chandannagar Mouza.
On behalf of the defendants following documents have been
exhibited :
Exhibit-A : Souvenir of the defendant Club of the year 1989.
Exhibit-B, B/1 : Copy of the letter dated 05.05.1969 with its
receipt.
Exhibit-C,C/1 : Copy of the letter dated 10.05.1969 with its
receipt.
Exhibit-D, D/1 : Copy of the letter dated 03.05.1969 with its
receipt.
Exhibit-E, E/1, E/2 : Copy of the application dated 24.08.1968
Exhibit-F, F/1, F/2 : Copy of the application dated 07.01.1969
Exhibit-G : Report submitted by Mayor CMC.
Exhibit-H : Certified copy of the suit register of TS 103/1958.
5After considering the oral and documentary evidence the Ld. Trial
Judge had come to the following finding:
“Hence it is
Ordered
That the suit be and the same is allowed on contest but with cost.
Plaintiff do get a decree of declaration that the defendant club or its
members have got no title in the suit property or to use the same as
playground or to claim any sort of easement and a decree of permanent
injunction restraining the defendant club or its members from making a
pucca boundary wall or fencing around the land or to use the land as
playground or to make any sort of construction in the suit land. Plaintiff
also do get a decree of mandatory injunction directing the defendants to
remove the goal post and sign board if any.”
Before the Ld. First Appellate Court
Being aggrieved by and dissatisfied with the judgment passed by the
Ld. Trial Judge the defendants preferred a title appeal being T.A. No.
105 of 2010. Ultimately the said title appeal has been heard and
disposed of on 12.07.2022 by Ld. Additional District Judge (FTC)
Chandannagar, Hooghly.
The Ld. First Appellate Court dismissed the first appeal, thereby
affirming the order passed by the Ld. Trial Court, which is the
impugned order.
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3. Mr. Ayan Banerje being assisted by Ms. Debasree Dhamali and Ms.
Riya Ghosh, the learned Counsels representing the appellants
during his exhaustive argument has submitted the following:
i) The suit is barred under Section 34 of the Specific Relief Act,
1963 and the impugned judgment and decree ought not to have
been passed .
ii) He has further submitted that the suit was filed for declaration
of the plaintiff’s title to the land in question and for further
declaration that the defendant has no title to the land or the
right of user over the land and a prayer for permanent
injunction has also been made restraining the defendant from
using the land as a playground and also restraining the
defendant from making any boundary wall or club house or
pucca structure in the suit property.
iii) He has submitted that the plaint is a product of clever drafting
where the plaintiff has given an impression that the club is not
in possession of the property but while describing the facts and
making the prayers it has become apparent that the club was
actually in possession of the said property.
iv) He has further submitted that the prayer for removal of sign
board of the club from any other structure clearly indicates the
existence of the club over the suit property.
v) He has further submitted that the defendants through their
written statement have made it clear that they are in occupation
7of the suit property and there is a club room existing over the
suit property for a very long time.
vi) He has further submitted that through the additional written
statement the defendants have specifically raised the point that
the plaintiff has no possession over the suit property and in the
absence of presence of recovery of possession the suit is not
maintainable.
vii) It has also been stated that the suit is not maintainable for non-
payment of ad valorem court fee.
viii) The Ld. Counsel has further stressed upon the point that
through a separate written statement Jatindranath Tosh and
Sudhanshu Rakshit filed a separate written statement and
specified that the club was in possession of the suit property
for more than 12 years even prior to the institution of the suit
and the club has acquired title by way of adverse possession.
ix) The Ld. Counsel has further submitted that the Ld. Trial Court
had framed an issue as to whether the suit is barred under
Section 34 of the Specific Relief Act, 1963 and while considering
the issue the LD. Trial Court has observed that in a suit for
declaration, a prayer for recovery of possession, trespasser is a
relief ancillary to the substantial prayer as such the Court
treated that the prayer was for recovery of possession from
trespasser but did not apply Section 34 without providing any
reason for the same.
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x) He has further submitted that the Ld. Trial Court has recorded
that it is the plaintiff’s case that the defendant club is a
trespasser whereas it is the case of the defendant that they are
in possession adverse to the right, title and interest of the
plaintiff.
xi) He has further submitted that in the Trial Court’s judgment it is
mentioned that the plaintiff has proved the right, title and
interest in the suit property and the defendant has not acquired
any right, title and interest by way of adverse possession.
xii) He has further submitted that during the trial of the suit the
plaintiff has tried to make out a case that the club is trying to
make construction and enter into the property but during
hearing it is established and admitted by the plaintiff that the
club was in possession although in the capacity of a trespasser
and once possession of the club over the suit property is proved
a prayer for recovery of possession becomes mandatory
requirement of law to maintain the suit under the specific relief
Act.
xiii) He has also submitted that the First Appellate Court had opted
the findings of the Trial Court while discussing requirement of
adverse possession.
xiv) He has further submitted that the Appellate Court has come to
the finding that the appellant has failed to prove that his
possession was open and hostile to prove its adverse nature.
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xv) He has further submitted that the Appellate Court did not take
into consideration the two Commissioner’s Report which were
filed before the Ld. Court which clearly establishes pucca
construction made by the club and such construction was
further developed during the pendency of the suit which
remained pending for a period covering more than 12 years.
xvi) He has further submitted that the judgment of the trial court
and the First Appellate Court are perverse as there has been
non-consideration of essential materials on record.
xvii) He has further submitted that in the first commissioner’s report
filed on 18.04.1980 the Commissioner observed that there were
existence of old pucca building shown in the RS Map in different
plots and the report mentions existence of a brick wall tile shed
club room of Kishore Sangha over the suit plot and the said
room is adjacent to the building of Hari Lila Sabha which
according to the plaintiff is on the adjoining plo and the survey
map also shows that over the suit plot there is existence of club
room of Kishore Sangha.
xviii) The Ld. Counsel has also relied upon revised commissioner’s
report wherein it has been mentioned that the earlier French
plot nos. 2248 and 2249 have subsequently being converted
into RS Plot Nos. 643 and 644.
xix) He has further submitted that the revised commissioner’s report
mentions that the nature of construction changed to a great
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extent and huge quantity of building materials were stacked in
the suit property for the purpose of the further construction.
xx) He has further submitted that in the commissioner’s report it
has been mentioned that the club room of Kishore Sangha
which was existent for a period of more than 15 years have
been cemented and walls have been plastered and huge
pandals have been constructed over the suit property in front of
the Thakur Dalan.
xxi) The Ld. Counsel has relied upon the evidence of PW1 whereby it
has been stated that Hari Lila Samilani had incited the local
people to use the said land as a playground and from 1968 the
sign board of the club was being displayed at the said property
and the club members started installing goal posts and
constructing club rooms.
xxii) He has further submitted that it is established that the
existence of the club room over the suit property since at least
1968.
xxiii) He has also relied upont he evidence of PW2 wherein the said
witness had admitted that there is a building of Sri Sri Hari Lila
Sambodhani Sabha which is in the suit property and on teh
northern side of the suit property the club room of Kishore
Sangha is situated.
xxiv) The Ld. Counsel has relied upon Exhibit- 7, 7A that is letter by
the Chandannagar Municipality and 8 that is the assessment
register where there is existence of club room.
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xxv) The Ld. Counsel has stressed upon the fact that the appellant
club is entitled to the benefit of adverse possession against the
owners in view of its continuous possession over the suit
property prior to filing of the suit and also during the pendency
of the suit and appeal.
xxvi) He has further submitted that the appellants defendants are in
adverse possession of the suit property for a period of more than
12 years from the date of institution of the suit.
xxvii) He has further submitted that although it is contended by the
respondents plaintiffs that temporary user as a playground does
not constitute adverse possession, the existence of pucca club
room, display of the board containing name of the club is a
clear, open and hostile act displaying possession of the
property, such act constitutes open and adverse possession of
the suit property.
xxviii) The Ld. Counsel has submitted that from the revised
report of the commissioner it is apparent during the two visits of
the commissioner in 1980 and 2004 there has all alone been
existence of club room in the suit property. Initially the club
room was having brick wall but in 2004 the club room has
developed with tile flooring and further structure.
xxix) The Ld. Counsel has also submitted that from the
commissioner’s report it is conclusive that the possession of the
defendant is at least from 1980 till the filing of the revised
report in 2004.
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xxx) He has further submitted that it is settled law that the plaintiff
cannot bring an action of recovery of possession after a period of
12 years from the date of such dispossession. Therefore even if
it is established that the plaintiff has right, title interest over the
suit property they don’t have a remedy for recovery of
possession since they have slept tight over their right to recover
the said property.
xxxi) He has further submitted that it is also established principle of
law that if during pendency of the suit the period of 12 years of
possession over another person’s property is covered then also
the defendant can claim that he cannot be evicted from the suit
property since there was not amendment of the plaint during
this period asking for recovery of possession.
Banking upon this the Ld. Counsel has submitted that
the respondents plaintiffs have failed to assert their right by
asking for recovery of possession although the defendants were
admittedly in possession of the suit property and it is well-
settled that adverse possession can not only be used as a
defence or shield but also as a sword and an independent suit
claiming for title by way of adverse possession is also
maintainable and the appellants defendants have specifically
claimed the defence of adverse possession.
He has relied upon the following authorities
a) (1973) 2 SCC 705
b) (2012) 8 SCC 148
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c) (2019) 8 SCC 729
d) 2024 SCC Online SC 132
4. Mr. Sambhunath De being assisted by Mr. Ranjit Kumar Ghosh, Ld.
Counsels representing the respondents has submitted the following:
i. The Ld. Counsel has stated that in the year 1968 the
plaintiff first time observed that the club has fixed a sign
board and goal post upon the suit property as such the
plaintiff has filed a suit in the year 1971.
ii. He has further submitted that all the documents filed by
the defendants are of the year 1968 or of subsequent
years.
iii. He has further submitted that the suit for declaration is
permissible when one is denying one’s right, title interest
over the property and in the present case the defendants
are claiming adverse possession over the suit plot denying
the right, title, interest and possession of the plaintiff’s.
As such the suit is maintainable and is not barred under
Section 34 of the Specific Relief Act.
iv. He has further submitted that the defendant must prove
constructive possession as the onus is upon him who
claims adverse possession but the defendant has failed to
prove it.
v. He has also submitted that DW2 stated in his evidence
that the defendant club was registered in the year 1961
but the so called registration certificate has not been filed.
14vi. The ld. Counsel has relied upon the following citations
AIR 1961 MP 212
AIR 1996 CAL 84
1995 2 CLJ 433
2004 10 SCC 779
2017 13 SCC 705
2009 16 SCC 517
2019 4 ICC 244
5. At the time of admission only one substantial question of law was
framed and during the hearing of the present appeal another
substantial question of law has been framed those are as follows:
i) Whether on the facts and in the circumstances aforesaid, the suit
was barred under Section 34 of the Specific Relief Act, 1963 and that
the impugned judgment and decree ought not to have been passed ?
ii) Whether on the facts and in the circumstances the appellants
association or club is entitled to a decree of adverse possession
against the owners that is the respondents.
Thus, from the substantial questions of law framed it is apparent that this
present appeal revolves around two issues firstly whether the suit filed by
the respondent/ landlord was at all tenable as per the Specific Relief Act
or not and secondly as to whether the appellant club is entitled to a
decree of adverse possession or not.
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6. As regards to the first substantial question of law Section 34 of the
Specific Relief Act is laid down, which is as follows:
“34. Discretion of court as to declaration of
status or right.–
Any person entitled to any legal character, or to any
right as to any property, may institute a suit against
any person denying, or interested to deny, his title to
such character or right, and the court may in its
discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for
any further relief:
Provided that no court shall make any such
declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to do
so.”
From the aforementioned Section it transpires that if the plaintiff in
spite of having to seek further relief than a mere declaration of title
and does not do so then Court shall not make any such declaration.
From the plaint it transpires that the plaintiff has mentioned in the
plaint ” …. that the defendants tried to go upon the land to play football
and fixed two bamboo goal posts, hung up a sign board in the name of
‘Kishore Sangha’…..” and the plaintiff apart from seeking declaration
of the plaintiff’s title to the suit property that is 0.076 acres of danga
land recorded in R.S. Plot 643 of R.S. Khatian 366 of mouza
Chandannagar, sheet No. 3 P.S. Chandannagar, District-Hooghly
formerly recorded and comprised in French plot No. 2248 has also
prayed the following:
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” ….b) for permanent injunction restraining the defendant ‘Kishore
Sangha’ or its members from using the land as their playground or from
making a pucca boundary wall around the land or from making barbed
wire fencing with bricks or otherwise around the land or from making
any pucca or any sort of club house or any structure of any description
on the land in suit.
c) for mandatory injunction ordering the defendant to remove the two
bamboo goal posts fixed on the land or /and to remove the sign board
bearing the name ‘Kishore Sangha’ hung up or fixed on the land or any
other structure that may be made. …. ”
Thus, from the plaint it is apparent that the plaintiff has apart from
seeking declaration has also sought for ancillary reliefs, so the plaint
is not barred as per the provisions laid under Section 34 of the
Specific Relief Act, 1963.
7. As regards to the second substantial question of law that is adverse
possession in respect of the suit property claimed by the defendants.
The plaintiffs have produced certified copy of an auction bid dated
15.03.1911, a deed of settlement, L.R.R.O.R. in the name of the
plaintiff, mutation certificates in the name of the plaintiff, Municipal
tax receipt, Government tax receipt issued in the name of the plaintiff,
RS Porcha of the suit property in support of their contention in
respect of the suit property.
On the contrary, the defendants through their written statement have
tried to prove that the said Kishore Sangha is a very old institution
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and the people of the locality particularly the children and the young
boys have been playing games of all sorts including football and
performing open air exercises as of right, peacefully, continuously and
uninterruptedly upon the suit land since time immemorial, in spite of
knowledge of the plaintiff/owner and municipal grant is being received
by the said club for about 12 years or more. The defendant club could
only produce copy of some applications and letters of which the first
one is dated 24.08.1968 and the remaining ones are of later dates.
The lis has been initiated by the plaintiff by filing the plaint on
06.04.1971.
Adverse possession is a concept that emerges, when a person, not
vested with the title , is in possession of the property, in derogation of
the title of the rightful owner. If the possession is traceable to any
permission or an act, emanating from the actual owner , it cannot be
treated as adverse.
There is no statutory definition of adverse possession. In the case
between Annasaheb Bapusaheb Patil Vs. Balwant reported in (1995)
2 SCC 543 the Hon’ble Apex Court has stated the following:
“14. Article 65 of the Schedule to the Limitation Act, 1963
prescribes that for possession of immovable property or any
interest therein based on title, the limitation of 12 years begins
to run from the date the defendant’s interest becomes adverse
to the plaintiff. Adverse possession means a hostile assertion
i.e. a possession which is expressly or impliedly in denial of
18title of the true owner. Under Article 65, burden is on the
defendants to prove affirmatively. A person who bases his title
on adverse possession must show by clear and unequivocal
evidence i.e. possession was hostile to the real owner and
amounted to a denial of his title to the property claimed. In
deciding whether the acts, alleged by a person, constitute
adverse possession, regard must be had to the animus of the
person doing those acts which must be ascertained from the
facts and circumstances of each case. The person who bases
his title on adverse possession, therefore, must show by clear
and unequivocal evidence i.e. possession was hostile to the
real owner and amounted to a denial of his title to the property
claimed.”
Adverse possession is the exception in the recognition of law by
acquisition of title only through lawful means. Adverse possession
implies that possession commenced in wrong and maintained against
right : corpur juris secundem. In order to constitute possession two
conditions must be satisfied ; the person concerned must be in a
position to exercise some control or power over the thing or object he
must intend or will to exercise this control or power – there must be
both physical (corpus) and mental (animus) aspects or elements
present to constitute possession.
Article 65 of the Limitation Act deals with the provision as regards to
the time period which is to be proved by the person who is claiming
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adverse possession in respect of the property. The said Article lays
down as follows:
“65. For possession Twelve years When the
of immovable possession of the
property or any defendant
interest therein becomes adverse
based on title. to the plaintiff.
Explanation.–For
the purposes of this
article–
(a) where the suit is
by a remainderman,
a reversioner (other
than a landlord) or a
devisee, the
possession of the
defendant shall be
deemed to become
adverse only when
the estate of the
remainderman,
reversioner or
devisee, as the case
may be, falls into
20possession;
(b) where the suit is
by a Hindu or
Muslim entitled to
the possession of
immovable property
on the death of a
Hindu or Muslim
female, the
possession of the
defendant shall be
deemed to become
adverse only when
the female dies;
(c) where the suit is
by a purchaser at a
sale in execution of
a decree when the
judgment debtor
was out of
possession at the
date of the sale, the
purchaser shall be
deemed to be a
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representative of the
judgment-debtor
who was out of
possession.
8. The plea of adverse possession is not a pure question of law but a
blended one of fact and law. Therefore, a person who claims adverse
possession should show a) on what date he came into possession, b)
what was the nature of possession , c) whether the factum of
possession was known to the other party, d) how long his possession
continued and e) his possession was open and undisturbed.
9. From the aforementioned discussion it transpires that a person
should be peacefully, continuously and uninterruptedly in possession
of a property against the rightful owner in spite of the owner having
the knowledge of the same, for a continuous period of at least 12
years. In the present case, the defendant club could only produce
copy of applications and letters, the earliest of which bore the date
24.08.1968 while the present lis has been instituted on 06.04.1971.
10. Thus, the original plaintiff has instituted the suit within 3 years
from the date of alleged misdeed of the defendant club, that is within
the statutory period of limitation.
11. The defendant club has failed to prove that they have been in
peaceful continuous possession of the suit property in spite of the
knowledge of the owner for a period of 12 years or more, while the
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plaintiffs through the documents have been able to prove as regards
to their ownership.
12. This being the position both the substantial questions of law are
decided in favour of the landlord/respondent.
13. Thus, the appellant club has not been able to prove adverse
possession by them in respect of the suit property.
14. The judgment of the Hon’ble Apex Court passed in the case
between Rajender Singh and Ors. Vs. Santa Singh and Ors. reported
in (1973) 2 SCC 705 is not at all applicable in the present lis as
because in the present lis the owner of the land that is the plaintiff
had instituted the suit within 3 years from the date of alleged taking
over of possession by the defendant club.
Another judgment of the Hon’ble Apex Court passed in the case
between Union of India Vs. Ibrahim Uddin and another reported in
(2012) 8 SCC 148 is also not applicable in the facts and
circumstances of this present case as because the plaintiff through
the plaint has prayed for consequential reliefs apart from the
declaration. As such there is no relief being not sought for by the
plaintiffs.
Another judgment of the Hon’ble Apex Court passed in the case
between Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur and Ors.
reported in (2019) 8 SCC 729 is also not applicable in the facts and
circumstances of this present case as because in the present lis the
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plaintiff has instituted the suit within 3 years on the alleged misdeeds
of the club. As such the law of limitation does not provide any
hindrance in deciding the present lis in favour of the
respondents/plaintiffs.
Lastly the appellants have cited a judgment reported in (2024) SCC
OnLine SC 132 which has been passed in the case between Vasantha
(Dead) through L.R. Vs. Rajalakshmi alias Rajam (Dead) through L.Rs.
The aforementioned authority cited on behalf of the appellant is of no
help to the appellant club as because through the said judgment it
has been mentioned that the purpose behind Section 34 of the
Specific Relief Act is to prevent multiplicity of proceedings. In the
present lis such occasion has not arisen as because the plaintiff has
sought for consequential reliefs apart from declaration, so there is no
relief remaining to be sought for by the respondents/ plaintiffs.
So all the aforementioned judgments cited on behalf of the appellant
club does not assist the club in any way whatsoever.
15. From the aforementioned discussion this Court finds no
anomaly in the decision of the Ld. Trial Court and the Ld. First
Appellate Court as such the judgment of the Ld. Trial Court and the
Ld. First Appellate Court does not require any interference.
16. The appeal being SA 22 of 2023 stands thus dismissed
accordingly CAN 1 of 2023 stands disposed of.
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17. Parties shall be entitled to act on the basis of the server copy of
the judgment and order placed on the official website of the Court.
18. Urgent Xerox certified photo copies of this judgment, if applied
for, be given to the parties upon compliance of the requisite
formalities.
(Supratim Bhattacharya, J.)