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2001 DIGILAW 134 (ORI)

Sasidhar Naik v. Pulin Chandra Naik

2001-03-26

P.K.MISRA

body2001
JUDGMENT P. K. MISRA, J. — Defendants 1 and 4 are the appellants against a reversing decision in a suit for declaration of title and recovery of possession. The genealogy indicating the relation¬ship is as follows : 2. The plaintiffs’ case is as follows : Indubhusan, the father of plaintiff No.1, obtained a recla¬mation Hukumnama on 27.2.1944 in respect of disputed, ‘A’ Sched¬ule property and he and his younger brother, plaintiff No.2, reclaimed the same and continued in possession. During the Cur¬rent Settlement Operation, the disputed lands were recorded in the name of the State of Orissa and only in respect of Ac. 0. 52 decimals of land possession was recorded in favour of the plain¬tiffs. It is claimed that taking advantage of the wrong recording of possession of the disputed land in the names of defendants 1 and 4, they trespassed upon the disputed land in the year 1975. It is pleaded by the plaintiffs that having remained in posses¬sion of the disputed land from 1944 till forcible dispossession in 1975, they have acquired title by adverse possession. 3. Defendants 2 and 3 filed joint written statement practi¬cally admitting the plaintiffs’ case and thereafter, they have not taken any further part in the suit. Defendants 1 and 4 filed separate, but similar written statements challenging the allegations made in the plaint. While admitting that the disputed land had been given to the father of plaintiff No.1 on the basis of Hukumnama, it was stated that similar Hukumnama had been given to other defendants and it was further pleaded that within two to three years of issuance of such Hukumnama in favour of different parties, the parties re¬claimed the lands on the basis of the mutual arrangement. In other words, it is stated that though Hukumnama was in favour of the plaintiffs, subsequently, defendant No.1 reclaimed and simi¬larly, some of the lands which had been given to the defendants under separate Hukumnamas, the plaintiffs and other defendants, namely defendants 2 and 3, were in possession and on the basis of such separate possession, notes of possession had been made in the Current Settlement Record-of-Rights. It is pleaded that by remaining in possession for more than thirty years on the basis of such arrangement, the defendants have prescribed title by adverse possession. 4. It is pleaded that by remaining in possession for more than thirty years on the basis of such arrangement, the defendants have prescribed title by adverse possession. 4. The trial Court decreed the suit in part in respect of Current Settlement Plot No. 426/4064 with an area of Ac. 0. 52 decimals and held that in respect of the balance lands, the defendants 1 and 4 were the owners by virtue of their adverse possession. 5. Even though the State was a party and it had been found that either the plaintiffs or the defendants were the rightful owners, no appeal was filed by the State. Similarly, against the part decree of the trial Court in favour of the plaintiffs in respect of the two plots indicated above, no further appeal was filed by the other defendants. The plaintiffs filed appeal against that part of the decree of the trial Court wherein their suit was dismissed and the rights of defendants 1 and 4 had been upheld. In the said appeal, the lower appellate Court reversed the decision of the trial Court and declared the right of the plaintiffs. The aforesaid decision of the lower appellate Court is under challenge by defendants 1 and 4. 6. At the time of hearing of the appeal, the counsel for the appellants has raised the question that the appellate Court has reversed the decision of the trial Court without discussing the reasons given by the trial Court and without considering the question of presumption of correctness of the Record-of-Rights and by ignoring the material evidence on record. Such contention is essentially based on the grounds taken in the memorandum of appeal, particularly ground Nos. 5,6 and 13, which had been certified to have raised substantial questions of law for deter¬mination, at the time of admission of the appeal. 7. There is no dispute that the disputed land had been given to the father of plaintiff No.1 on the basis of Hukumnama. Howev¬er, the defendants claimed right on the basis of subsequent amicable arrangement by virtue of which they were allowed to possess the disputed land. Similarly, some of the lands obtained by the defendants under similar Hukumnamas were under the posses¬sion of the plaintiffs. It is claimed by them that they having remained in possession on the basis of such mutual arrangement have acquired title by adverse possession. Similarly, some of the lands obtained by the defendants under similar Hukumnamas were under the posses¬sion of the plaintiffs. It is claimed by them that they having remained in possession on the basis of such mutual arrangement have acquired title by adverse possession. There cannot be any doubt that a person who claims title by adverse possession has to plead and prove the same by cogent materials. 8. In the aforesaid back-drop, it has been contended by the learned counsel for the appellants that plaintiff No.2 in his evidence had admitted that he was in possession of some of the lands which had been given to the defendants under Hukumnama, but the effect of such admission was not considered by the lower appellate Court merely on the basis of surmise to the effect : “................It is not unlikely that out of the Hukumnama lands temporarily granted in favour of Sradhakar under Ext. U-4, this witness might have possessed some lands as the same were allowed to remain fallow.........” It has been contended that no explanation had been furnished by the plaintiffs and the aforesaid reasoning of the lower appellate Court is nothing but a pure surmise and conjecture. Similarly, it is further contended that the lower appellate Court has consid¬ered the statement of defendant No.4 in Ext. 14 as an admission to the effect that defendant No. 4 had claimed right in respect of the Hukumnama lands in his favour, thus negativing the case of defendant No.4. In this connection, it is submitted by the coun¬sel that the explanation of defendant No. 4 to the effect that though he had typed the said petition, he had missed to incorpo¬rate the word “partly”, has not at all been considered. It is further submitted that even though the admission is relevant and is a strong piece of evidence, before considering the effect of admission, the Court is also required to consider the explana¬tion, if any, offered by the party. It is further contended that the lower appellate Court has not at all discussed the effect of various documentary and oral evidence and by merely noticing the same, it has come to the conclusion that neither the documentary evidence, nor the oral evidence adduced on behalf of the defend¬ants was sufficient to prove their case. It is further contended that the lower appellate Court has not at all discussed the effect of various documentary and oral evidence and by merely noticing the same, it has come to the conclusion that neither the documentary evidence, nor the oral evidence adduced on behalf of the defend¬ants was sufficient to prove their case. It is further submitted that even the lower appellate Court had also similarly discarded the documentary and oral evidence on the side of the plaintiffs. 9. A perusal of the judgment of the lower appellate Courts justifies the aforesaid criticism levelled by the counsel appear¬ing for the appellants. It is seen from the judgment that the lower appellate Court seems to have merely noticed/referred to the various documentary evidence and oral evidence without giving any reason for either discarding or accepting such evidence. Moreover, after having discarded the oral evidence of both sides, the lower appellate Court has not considered the effect of the Record-of-Rights wherein the possession of the contesting defend¬ants had been noted. A bare perusal of the judgment clearly indicates that the lower appellate Court has remained content by merely noticing the documentary as well as the oral evidence from either side without making any clear effort to analyse the evi¬dence on record. The reasons given for not accepting the documen¬tary or oral evidence from either side appear to be very facile and superfluous. 10. It is, or course, true that the question as to whether a person has got right by adverse possession is essentially a question of fact. However, in the present case, the lower appel¬late Court has failed in its duty by not analysing the evidence of either side and some of the reasonings given by the lower appellate Court are based on pure conjecture and the judgment is vitiated by non-consideration of materials on record. I desist from making any detailed discussion of various materials on record, as I think the matter is required to be reconsidered by the lower appellate Court. Accordingly, the judgment of the lower appellate Court is set aside and the matter is remanded to the lower appellate Court for fresh consideration. I desist from making any detailed discussion of various materials on record, as I think the matter is required to be reconsidered by the lower appellate Court. Accordingly, the judgment of the lower appellate Court is set aside and the matter is remanded to the lower appellate Court for fresh consideration. It is made clear that even though the matter has been remanded, it should not be taken that any opinion has been expressed regarding the accept¬ability of the case of one side or the other and the lower appel¬late Court has to deal with the matter afresh without being influenced by any observation and the observations, if any, wherever made are only incidental to point out the incorrect approach of the lower appellate Court. Accordingly, the appeal is allowed and the matter is remanded to the lower appellate Court. The parties are directed to appear before the lower appellate Court on 26th April, 2001. The appeal should be re-disposed of in accordance with law, as expeditiously as possible, preferably within a period of six months from the date of receipt of the record. There will be no order as to costs in the present appeal. Appeal allowed.