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2006 DIGILAW 631 (ORI)

Sarat Chandra Nayak v. Damodar Patel

2006-08-30

A.K.PARICHHA

body2006
JUDGMENT A. K. PARICHHA, J. — This is an appeal against the judgment and decree passed by the learned Additional District Judge, Sambalpur in T.A. No.8/22 of 1996-97 allowing the said appeal in part and modifying the judgment and decree of learned Civil Judge (Senior Division), Kuchinda in title Suit No.39 of 1990. The appellant as plaintiff filed the aforesaid suit for declaration of his right, title and interest over the Schedule ‘A’ land (in short, ‘the suit land’), recovery of possession of that land and permanent injunction against the defendants, with an alternative prayer for recovery of possession of Schedule ‘B’ land and com¬pensation of Rs.6,000/- towards cost of the boundry wall con¬structed on three sides the suit land. 2. The case of the plaintiff in brief was that more than 35 years ago he took the suit land from the defendant No.2 and in exchange gave him his land in Schedule ‘B’ and put a boundary wall around the suit land and Plot No.423 on which he had his rice hauler and house and thereafter used the suit land as thrashing floor and bari. He alleged that after some time defen¬dant Nos.1 and 2 created disturbance in his peaceful possession over the suit land and in order to restore peace he transferred a portion of his bari land in favour of defendant No.2 through a registered sale deed without any consideration. But even after such negotiatory gesture defendant No.2 executed a false sale deed in favour of Defendant No.4 on 26.10.1989 fakely transfer¬ring Ac.0.12 decimals of land out of the suit land for which he had to file the suit with the afore-mentioned reliefs. Plaintiff specifically pleaded that by virtue of continuous uninterrupted and open possession he has acquired title over the suit land by way of adverse possession. 3. Present respondents as defendants in their written statement denied the factum of exchange of land as averred by the plaintiff and claimed that the suit land was all along in their possession and the boundary wall on that land is there since the time of their father. They pleaded that defendant No.2 for legal necessity sold Ac.0.12 decimals out of the suit land to Defendant No.4 for due consideration and defendant No.4 is in possession of that part of the suit land. They pleaded that defendant No.2 for legal necessity sold Ac.0.12 decimals out of the suit land to Defendant No.4 for due consideration and defendant No.4 is in possession of that part of the suit land. They further averred that defendant No.2 purchased Schedule ‘B’ land from the plaintiff in 1969 through oral transaction and has remained in possession of that land ever since and in the process has acquired title over that land by adverse possession. 4. Learned trial Court framed as many as 12 issues and on consideration of the evidence led by the parties came to the conclusion that there was exchange of land between the plaintiff and defendant No.2 about 20 to 25 years back through an oral transaction and plaintiff was in possession of the suit land along with the plot No.423, that defendant Nos.1 and 2 forcibly took possession of the suit land and sold 12 decimals out of it to defendant No.4 and defendant No.4 is in possession of that land at present, that the plaintiff has not perfected his title over the suit land by way of adverse possession. He accordingly, dismissed the claim of the plaintiff, so far as declaration of right, title over the suit land and recovery of possession of the same is concerned, but decreed the alternative prayer relating to recovery of possession of Schedule ‘B’ land from defendant Nos. 1 and 2. The prayer for compensation in lieu of the boundary wall was also rejected. The plaintiff carried appeal. In the said appeal the appellant confined his contention to the plea of ad¬verse possession over the suit land i.e. plot No.423/369 only. Learned first appellate Court on reappraisal of the evidence came to the conclusion that the possession of the plaintiff over the suit land was permissive in nature and therefore ruled that despite possession for more than 20 years the plaintiff-appellant had not derived title over the same by way of adverse possession. The said Court, however, ruled that plaintiff is entitled to recovery of possession of Schedule ‘B’ land from defendant Nos. 1 and 2 and defendant No.2 is liable to pay compensation of Rs.6000/- towards the boundary wall constructed by the plaintiff over the suit land. The finding of the first appellate Court on the issue of adverse possession is now under challenge in the present appeal. 1 and 2 and defendant No.2 is liable to pay compensation of Rs.6000/- towards the boundary wall constructed by the plaintiff over the suit land. The finding of the first appellate Court on the issue of adverse possession is now under challenge in the present appeal. So, the following substantial question of law is formulated to be decided in this appeal. (i) Whether the finding of the learned first appellate Court that the possession of the suit land by the plaintiff was permis¬sive in nature, is legally correct particularly when the Courts below concurrently held that the plaintiff was in possession of the suit land for more than 20 years basing on a transaction of exchange ? 5. Mr. A. K. Mahakud, learned counsel appearing for the appellant submits that the Courts below having accepted the plea of exchange of land between the plaintiff and Defendant No.2 through an oral transaction and the possession of the plaintiff-appellant thereon for more than 20 to 25 years, had no scope for drawing any inference that the possession of the appellant over the suit land was permissive in nature. He submits that once a party comes into possession of a land through an invalid transac¬tion, the possession has to be treated as adverse possession from the date of such invalid transaction. He indicates that, a trans¬action of exchange as contemplated u/s. 118 of the Transfer of Property Act requires same formalities as that of a sale transac¬tion contemplated u/s. 54 of the T.P. Act and because the ex¬change of land between the plaintiff and defendant No.2 was through an oral transaction, which is not permissible under law, the transaction was an invalid one and accordingly, possession of the plaintiff-appellant over the suit land was adverse from the date of that transaction. In support of his contention, Mr. Mahakud cited the Cases of Collector of Bombay v. Municipal Corporation of the City of Bombay and others, AIR (38) 1951 SC 469; State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778 and Laxmi Gouda and others v. Dandasi Goura (dead) after him Smt. Baidehi Bhuyan and others 1990 (II) OLR 340 wher¬ein it has been essentially held that title by adverse possession can be acquired by a transferee under an invalid transfer deed if he proves uninterrupted possession for the statutory period. 6. Mr. 6. Mr. S. Mishra-2, learned counsel appearing for the respondents while not disputing the legal proposition laid down in the case laws cited by the appellant submits that the proposi¬tion does not apply to the present case because of difference in factual situation inasmuch as a transaction of mutual arrangement is not the same as a transaction of exchange contemplated under Section 118 of the T.P. Act. According to him, in the present case the parties exchanged the lands and remained in possession of those lands for their mutual convenience without exchanging the ownership of those lands and so their possession over the respective lands was permissive in nature and in that view of the matter the plaintiff-appellant had no occasion to derive title over the suit land by adverse possession. 7. The Courts below have concurrently held that there was in fact exchange of possession of the suit land and Schedule-B land between defendant No.2 and the plaintiff and that in lieu of such arrangement the plaintiff-appellant was in possession of the suit land for a period of more than 20 years. The Courts, howe¬ver, held that such possession was permissive in nature and therefore the plaintiff did not acquire any title by way of adverse possession. Before delving into the contention of the parties, it must be remembered that a Court of Second Appeal is not legally competent to interfere with the concurrent findings of the Courts below on factual aspects even if such findings may be erroneous. (see the cases of Kondiba Dagadu Kaedam v. Savitrib¬ai Sopan Gujar and others, AIR 1999 SC 2213 , Gurdev Kaur and others v. Kaki and others, AIR 2006 SCW, 2404 and Thaigarajan and others v. Venugopalaswamy B. Koil and others, AIR 2004 SC 1913 .) When the Courts below have concurrently held that there was ex¬change of land between plaintiff and defendant No.2 through an oral transaction and that plaintiff was in possession of the suit land for more than 20 years, there is no scope now to reopen that issue or to give any fresh finding on the subject. The only aspect which can be examined is whether under the given circum¬stances the observation of the Courts below that the possession of the plaintiff-appellant over the suit land was permissive in nature is legally correct. In this regard, Mr. The only aspect which can be examined is whether under the given circum¬stances the observation of the Courts below that the possession of the plaintiff-appellant over the suit land was permissive in nature is legally correct. In this regard, Mr. Mahakud specifi¬cally argues that an exchange of immovable property has to be undertaken by means of a registered deed as is done in case of sale of immovable property and if no such registered document is executed then the transaction of exchange becomes an invalid transaction and a party coming into possession of a land through such invalid transaction would be considered as a person in adverse possession. Mr. Mishra does not dispute the above said legal position,but he contends that exchange of possession of lands for mutual convenience in absence of any stipulation of transfer of ownership would not be a transaction of exchange as contemplated under Section 118 of the T.P. Act and possession of the parties over the land involved in such transaction would simply be permissive possession. Learned first appellate Court in paragraph-5.1 of the impugned judgment has clearly analyzed the evidences and circumstances which prompted him to believe that the exchange of land between the plaintiff-appellant and defendant No.2-respondent was for mutual convenience and that none of the parties had the intention of relinquishing the owner¬ship of the land in favour of the other. To reach this conclusion he took into consideration the fact that neither party took any step for getting the exchanged land recorded in his name. The plaintiff sold Schedule-B land as his ceiling surplus land. Defendant No.2 forcibly entered into the suit land and sold a portion of the same to defendant No.4. None of the parties took any attempt for execution of any document of exchange. The rea¬soning and analysis of learned first appellate Court is neither perverse nor can be said to be based on no evidence. The Courts below after analyzing the evidence and circumstances have ob¬served that the transaction between the plaintiff and defendant No.2 was simply a mutual arrangement for convenience and was a never a transaction of exchange in the strict sense of Section 118 of the T.P. Act. If that position is accepted, then the possession of both plaintiff and defendant No.2 over the ex¬changed land would be permissive possession. If that position is accepted, then the possession of both plaintiff and defendant No.2 over the ex¬changed land would be permissive possession. Once the possession is permissive, the same cannot be converted into adverse posses¬sion unless it is proved that the person in possession asserted an adverse title to the property to the full knowledge of the true owner for a period of 12 years or more in case of private person or 30 years or more in case of State. As has been said by the Courts below the evidence on record does not speak about hostile animus by the plaintiff over the suit land. In such backdrop the possession of the plaintiff over the suit land can never amount to adverse possession. So the Courts below were legally correct in their observation that the plaintiff did not acquire title over the suit land by way of adverse possession. 8. The substantial question of law raised is accordingly answered against the appellant and the appeal is found to be without any merit. The same is accordingly dismissed on contest, but in the peculiar circumstances without any cost. Appeal dismissed.