1. Heard Mr. P. Mahanta, learned counsel for the appellant/defendant. Also heard Ms. B. Choudhury, learned counsel appearing for the respondent/plaintiff.

2. This appeal is presented against the judgment and decree dated 04.10.2002 passed by the learned Civil Judge, Senior Division, Sonitpur, Tezpur, in Title Appeal No. 13/1998, dismissing the appellant/defendant’s appeal and upholding the judgment and decree dated 07.03.1998 passed by the learned Civil Court, Junior Division No. 1, in Title Suit No. 1/95.

3. The Second Appeal was admitted to be heard by an order dated 02.04.2003 on the following substantial question of law:

'Whether on the strength of the Sale Deed dated 08.01.1959 (Deed No. 62/1959), the respondent came into possession and continued to possess the same till 25.11.94 vis--vis the claim of the appellant of acquiring title by adverse possession?'

4. At the very outset, the relevant facts may, briefly, be noticed.

5. The case projected by the plaintiff is that the father of the defendant, namely, Indibar Nandi (since deceased), who was the Pattadar of the suit land, had sold the suit land to the plaintiff on 08.01.1959 by a registered sale deed for valuable consideration and delivered Khas possession to the plaintiff and, thereafter, he had erected bamboo fencing on the suit land and constructed a Dui-chalia thatched house, wherein one of his employees was residing. While he was possessing the land, the defendant forcefully occupied the suit land on 25.11.1994 and constructed Pucca ring-well in the suit land. As the defendant had interfered with the peaceful possession of the plaintiff, the suit was filed by the plaintiff claiming right, title and interest in respect of the suit land and praying for consequential relief of recovery of possession by evicting the defendant with his men and materials etc. The suit land measured 2 Kathas under Dag No. 63 of Periodic Patta No. 9, situated at Mazgaon, Mouza-Bhairabpad, District-Sonitpur, Assam.

6. Though in the written statement the defendant admitted the sale of the suit land to the plaintiff on 08.01.1959 by registered sale deed, he stated that there was no delivery of possession to the plaintiff. The erection of bamboo fencing and construction of Dui-chalia house by the plaintiff was also denied by the defendant. It was pleaded that the plaintiff never took possession of the suit land and the father of the defendant continued to possess the land till 1974, i.e., till his death, openly, continuously and with the knowledge of the plaintiff and that the plaintiff never objected to the possession of the land by the father of the defendant and, therefore, the title of the plaintiff to the suit land became extinguished by adverse possession of the father of the defendant. After the death of the defendant’s father, his legal representatives, including the defendant, continued their open, hostile and continuous possession over the suit land against the interest of the plaintiff and, therefore, mutation of the name of the plaintiff over the suit land and payment of land revenue will be of no aid to the plaintiff as his title had been extinguished. It is also stated that the suit land fell in his share on the basis of a family arrangement made in the year 1989 and he was in exclusive possession of the suit land by right of adverse possession. It is further stated that the father of the defendant had constructed a two-roomed cow-shed over the suit land in the year about 1960 and one cowman used to reside in the house. Subsequently, the defendant had set up a ring factory in the suit land and there was also a ring-well.

7. Mr. Mahanta has submitted that the plaintiff could not prove delivery of possession of the land consequent upon sale to him vide Ext.-1, Sale Deed, in respect of the suit land, but, on the contrary, the defendant had laid cogent and reliable evidence to show that the father of the defendant, and subsequent after his death, the defendant was in possession of the land by way of adverse possession and, as such, whatever right the plaintiff had over the suit land, was extinguished and the defendant has acquired his title by way of adverse possession. It is submitted by him that DW2 and DW3 have also supported the evidence of the defendant, who examined himself as DW1 with regard to the plea of adverse possession.

8. Ms. Choudhury, learned counsel for the respondent has, on the other hand, submitted that both the courts below, on the basis of the materials available on record, had recorded a finding that on execution of the Sale Deed, possession was delivered to the plaintiff and the claim of the defendant regarding adverse possession was rejected by the courts below. She submits that in absence of any perversity in appreciation of the evidence on record, this Court will not interfere with such finding of fact. She has further submitted that way back in 1965, on the basis of title and possession, the name of the plaintiff was recorded in the Jamabandi and the same was also proved as Ext.-2.

9. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.

10. The learned trial court had framed 7 (seven) issues out of which Issue Nos. 2 and 5 are important. Issue No. 2 relates to the question as to whether the plaintiff has right, title and interest over the suit land, and Issue No. 5 pertains to the question as to whether the defendant had acquired title to the suit land by way of adverse possession?

11. Both the sides examined three witnesses each and had also exhibited certain documents. At the time of execution of the Sale Deed in the year 1959, DW1, i.e., the defendant was aged about two years and he has admitted to be so in his cross-examination. The father of the defendant expired in the year 1974 leaving behind his wife, 4 sons and a daughter. While in the written statement the defendant had stated that there was a family arrangement in the year 1989, in his evidence it was stated by him that such partition had taken place in the year 1984 and that the suit land had fallen into his share. If the property had already been sold, as admitted by the defendant, it is not understood as to how the said property could have been allotted to the share of the defendant as the right, title and interest in respect of the said property had ceased to be with the father of the defendant on his execution of the sale deed in the year 1959 in favour of the plaintiff.

12. It is settled position of law that when the plaintiff brings a suit for recovery of immovable property based on his title, and the defendant wants to defeat the suit on the plea of adverse possession, the suit will be covered by Section 65 of the Limitation Act, and once the plaintiff establishes his title, the burden will shift to the defendant to prove his adverse possession. When the execution of the sale deed is already admitted by the defendant, the burden heavily shifts to the defendant to establish his plea of adverse possession. DW1, i.e., the defendant, admittedly did not have any knowledge with regard to the delivery of possession, he being a minor boy of two years old at the relevant point of time. No family member (his brothers are alive) of the defendant was examined in respect of the contentions that though the sale deed was executed, possession was never handed over to the plaintiff, that there was a family partition and that their possession, if any, was hostile. DW1 stated in his evidence that he had constructed a well in the year 1978. According to his own version, partition of the properties took place much later. DW1, apparently, sought to embellish his case by stating that by demolishing the cow-shed, he constructed a new house with wooden posts and bamboo walls and started living there. No such statements were made in the written statement. The trial Court noted that there was no dispute between the plaintiff and the father of the defendant during the lifetime of the defendant’s father. The trial Court also noted that DW1 and DW2 did not have personal knowledge regarding purchase of the suit land by the plaintiff and the consequential delivery of possession by the father of the defendant. The suit land is a vacant land and the trial Court also recorded the finding that the DW1 and DW2 had stated that the same was bounded by bamboo fencing for a long time. Taking note of the evidence of DW1 that after the death of the father of the defendant, the suit property was possessed jointly by the legal representatives of Indibar Nandi and that the claim of the defendant being that the partition had taken place only in the year 1984 or 1989, it was held that the suit la

nd could not have been fenced by the defendant long time back and that the only conclusion that could be arrived at was that it was the plaintiff who had fenced the suit land. Most significantly, both the courts below have held that even assuming that there was some possession, there is no material on record to hold when the defendant denied the title of the plaintiff over the suit land and started possession adverse to the interest of the plaintiff. 13. The learned courts below had marshalled the evidence in the correct perspective and in absence of any perversity being shown in appreciating the evidence on record, I find no merit in this appeal and, accordingly, the same is dismissed. The substantial question of law is answered accordingly. 14. The appeal is dismissed. No cost. 15. The interim order passed in this appeal on 02.04.2003 staying the recovery of possession is vacated. 16. Registry will send back the records.