Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 140 (ORI)

MURALIDHAR MAJHI v. BRAJENDRA KUMAR SAHU

2009-02-17

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - Respondent No. 1 as Plaintiff filed T.S. No. 55/86-1 before the then Munsif, Keonjhar, inter alia, praying for declaration of title and recovery of possession of the suit land measuring Ac.0.2 decs appertaining to Hal Plot No. 917 from Defendant No. 1 and Ac.0.01 dec. appertaining to Hal Plot No. 918 from Defendant No. 2. The description of the suit property in detail was given in the plaint schedule. 2. According to the averments made in the plaint the suit property was part and parcel of Sabik Plot No. 165 measuring an area of Ac.0.14 decs. The said lands belonged to the predecessors of Plaintiff and Defendant No. 3. To appreciate the facts, it would be necessary to refer to the genealogy of the family of Plaintiff. Jagu Raghu Govinda Kathia Gania Rama Subhadra Suryamani Brajendra Hira (Plaintiff) (Defendant No. 3) From the aforesaid genealogy, it appears that Govinda, S/o. Jagu died leaving behind his son Rama and daughter Subhadra. Rama died issueless. Plaintiff is the son of Subhadra. Similarly, Raghu died leaving behind his son Kathia and Gania. Kathia died issueless. Gania died leaving behind his widow Suryamani and daughter Hiramani (Defendant No. 3). Defendant Nos. 1 and 2 are strangers to the family. It is further averred that as Gania, S/o. Raghu, had no issues, he gifted Ac.0.5 decs out of Ac.0.14 decs of Sabik Plot No. 165 and half decimal out of one dec appertaining to Plot No. 166 and Ac.l. 5 dec out of Ac.0.03 decs appertaining to Sabik Plot No. 167 to the plain tiff by registered deed. After the death of Gania his wife Suryamani and daughter Hiramani possessed the lands and did not part with it. Subsequently, Plaintiff filed the suit for recovery of possession as stated earlier. The said suit was decreed in terms of a compromise. Plaintiff got Ac.0.07 decs out of Ac.0.14 decs of Sabik Plot No. 165. Since the settlement was over by the time the decree was passed, it is alleged, only Ac.0.5. decs of land appertaining to Sabik Plot No. 165, obtained under the gift deed, was recorded in favour of the Plaintiff and the rest of the land was recorded in favour of Suryamani and Hiramani. Defendant Nos. 1 and 2, it is averred in the plaint are neighbouring adjacent land owners. decs of land appertaining to Sabik Plot No. 165, obtained under the gift deed, was recorded in favour of the Plaintiff and the rest of the land was recorded in favour of Suryamani and Hiramani. Defendant Nos. 1 and 2, it is averred in the plaint are neighbouring adjacent land owners. Taking advantage of the fact that the Plaintiff was staying outside the State, Defendant Nos. 1 and 2 managed to get forcible note of possession over Ac.0.03 dec of land out of Sabik Plot No. 165 in the final Record of Rights, though they had no right, title over the same and the Plaintiff on coming to know about the said fact was constrained to file the suit. 3. After receiving notice of the suit, Defendant No. 3 chose not to contest and was set ex parte. Defendant Nos. 1 and 2 filed their written statement challenging the maintainability of the suit on the ground of delay. They also raised objection with regard to multiplicity of proceeding and mis-joinder and non-joinder of necessary parties. According to Defendant No. 1 Chintamni Raul and Bangir Bewa were the owners in possession of the land adjacent to the suit land and they were also possessing a part of the suit land. They had transferred Ac.0.04 decs to Natabar Raul in the year 1967 and delivered possession. Natabar Raul after purchasing the lands in the year 1977 sold Ac.0.04 decs to Defendant No. 1 and handed over possession of the said lands as well as the suit lands. It is further averred that Ramraj Sahu was in possession of the suit land along with other lands and he transferred some lands to Defendant No. 2 and gave delivery of possession including the suit land and from the date of purchase, the said lands were in the occupation of Defendant No. 2. Thus, according to the Defendants their vendors were In occupation of the suit lands to the knowledge of the Plaintiff and as no steps were taken by the Plaintiff for more than twelve years the suit was barred by time. 4. On the basis of the averments made in the plaint and written statement, the Trial Court framed as many as eight issues. In order to substantiate their case the Plaintiff got examined two witnesses, and exhibited four documents. The Defendants got five witnesses examined and exhibited four documents. 4. On the basis of the averments made in the plaint and written statement, the Trial Court framed as many as eight issues. In order to substantiate their case the Plaintiff got examined two witnesses, and exhibited four documents. The Defendants got five witnesses examined and exhibited four documents. After threadbare discussion of the evidence, both oral and documentary, the Trial Court answered each of the issue in favour of the Plaintiff and held that the Plaintiff had got right, title and interest over the suit land and the Defendants have totally failed to prove that they had acquired adverse possession of the suit land. Consequently, the suit for declaration of right, title and interest and recovery of possession was decreed and the Defendants 1 and 2 were directed to vacate the suit lands after removing the structures there from. 5. Being aggrieved the Defendants assailed the Judgment in T.A. No. 31/18/89/93 mainly the ground that the Trial Court had not correctly assessed the evidence and the findings are contrary to the evidence, The said appeal was heard by Learned Civil Judge (Sr. Division), Keonjhar. It is further averred that the Trial Court had no pecuniary jurisdiction to try the suit as the valuation of the suit land was more Rs. 4,000 which was the pecuniary limits of the then Munsif. It is also argued that the Trial Court did not keep in mind the settled position of law with regard to adverse possession and the finding to that aspect was erroneous. It was also argued that non-impletion of the wife of Defendant No. 2 was fatal and the suit should have been dismissed on that ground alone. 6. The Appellate Court after hearing Learned Counsel for the parties and relying upon the evidence, both oral and documentary, held that the value of the suit land would be Rs. 3,000 and thus the suit was maintainable in the Court of Learned the then Munsif. Dealing with the contention of non-joinder of parties the Appellate Court held that the Plaintiff had no grievance against Rajani the wife of Defendant No. 2 as it was not averred in the plaint that she had trespassed into any portion of the suit property and as such she was not a necessary party. Thus, the suit was not defective due to non-joinder or mis-joinder of parties. Thus, the suit was not defective due to non-joinder or mis-joinder of parties. It was also held that as the Plaintiff had no cause of action against the wife of Defendant No. 2 and there was no illegality in the conclusion arrived at by the Learned Trial Court. Discussing the contention with regard to adverse possession, Learned Appellate Court held that Defendant Nos. 1 and 2 had failed to establish continuous uninterrupted possession coupled with hostile animus for the required period (twelve years) and the Trial Court after discussing the evidence, both oral and documentary, had rightly come to such conclusion. While confirming the finding of the Trial Court, the Appellate Court held that the Defendants had totally failed to establish acquisition of title over the suit land on the basis of adverse possession and confirmed the said finding. On the basis of such conclusion the Appellate Court declined to interfere with the finding of the Trial Court on any of the issues and dismissed the appeal thereby confirming the decree passed by the Trial Court. The said confirming Judgment and decree is assailed in the Second Appeal. At the time of admission though no specific substantial questions of law were framed, it was observed that the ground Nos. 1,4 and 5 shall be treated as substantial questions of law. Ground No. 1 of the appeal memorandum deals with non-consideration of the contents of Exts.1 to 4, Ground No. 1 deals with tacking of venders possession with the subsequent purchaser and Ground No. 5 deals with misconstruction of deeds Exts. A to D. 7. Heard Learned Counsel for the Appellants and Learned Counsel for the Respondents in extenso. Perused the pleadings meticulously. Under Issue No. 6 the Trial Court dealt with identity and description of the suit land. Relying upon the evidence of P.W.1, which was not disputed by Defendant Nos. 1 and 2, the Trial Court held that the genealogy of the parties stands unrebutted. Relying upon the certified copy of the R.O.R.(Ext.1), the Trial Court observed that Plot No. 917 had an area of Ac.0.02 decs and Plot No. 918 had an area of Ac.0.01 dec. Ext.2 is the information slip of the record room, Keonjhar, which discloses that plot Nos. 917 and 918 correspond to Sabik Plot No. 165. Relying upon the certified copy of the R.O.R.(Ext.1), the Trial Court observed that Plot No. 917 had an area of Ac.0.02 decs and Plot No. 918 had an area of Ac.0.01 dec. Ext.2 is the information slip of the record room, Keonjhar, which discloses that plot Nos. 917 and 918 correspond to Sabik Plot No. 165. The Trial Court has also referred to the compromise decree in terms of which the Plaintiff got eastern half and Hiramani (Defendant No. 3) got western half of the suit land. The certified copy of the decree passed in T.S. No. 16/75 has been exhibited as Ext.3. The said suit was between the Plaintiff, Suryamani, Hiramani and Balaram and was decreed in terms of the compromise. Perusal of the said Ext.3 reveals that Plaintiff got half share in the suit land. Thus, the lands allotted to Plaintiff were Ac.0.07 decs, out of Plot No. 165 and other lands. The certified copy of the preliminary decree tallies with the final decree. Thus, it is apparent from the certified copy of the order passed in Execution Case No. 25/ 83, Ext.4, and also the report of the survey knowing commissioner, who had delivered possession of the lands decreed in favour of the two Plaintiffs that Plaintiff had title and possession. Thus, there is absolutely no ambiguity with regard to the identity of the land and both the Courts below have rightly assessed the evidence. 8. So far as the plea of acquisition of title by adverse possession by Defendants is concerned, the said dispute was dealt with in Issue No. 5 by the Trial Court. Before delving into the arguments, this Court is conscious that the question of adverse possession is a pure question of fact and concurrent findings with regard to adverse possession should not be interfered with in a Second Appeal lightly. It is well settled that u/s 100 C.P.C. jurisdiction of the High Court to entertain a Second Appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction u/s 100 C.P.C. 9. According to the Defendants they had purchased the lands and possessed the same exclusively. According to the Defendants they had purchased the lands and possessed the same exclusively. It is argued that they as well as their vendors having possessed the suit lands for more than twelve years openly, peacefully, continuously had acquired title thereon. Thus, the onus lies upon the Defendants to establish that they had purchased the lands from lawful owners and that their vendors and after them they were occupying the lands uninterruptedly, openly and had satisfied all ingredient of adverse possession. The Defendants relied upon Ext.A, the sale deed executed by one Natabar Roul on 21.9,77. Ext.B is another sale deed by which Natabar Roul sold Ac.0.02 decs of land out of Sabik Plot No. 163 to Defendant No. 1 on 20.4.77. Perusal of the averments of both the sale deeds reveal that there is no recital to the effect that the vendors had delivered more lands than the lands under Suit Plot No. 163 to the purchaser-Defendants. Ext.C is the registered sale deed dtd.18.5.84 executed by one Ramraj Sahu alienating Ac.0.02 decs out of Sabik Plot No. 163 to Defendant No. 2. Ext.D reveals that the said Ramra] Sahu sold Ac.0.02 decs out of Sabik Plot No. 16C with a house standing thereon to the wife of Defendant No. 2 on 18.5.84 Both Exts. C and D also disclose that the venders had not sold more than Ac.0.04 decs of land to Defendant and his wife. Perusal of the said sale deeds reveal a peculiar fact, inasmuch as, it appears that Plot No. 163 had been sold twice by two persons to Defendants and wife of Defendant No. 2. Surprisingly none of the sale deed reveals that the venders were possessing any part of the suit plot No. 165 not does it disclose that they have delivered portion of suit plot No. 165 to Defendant Nos. 1 and 2. This aspect has been dealt with in extenso in paragraph-11 of the Trial Court's Judgment. Coupled with the aforesaid facts, the report of the civil Court commissioner, which was referred to in the Execution Case arising out of T.S. No. 16/1975 does not disclose that he found any person much less the venders of the Defendants in possession of the suit plots. Thus, there is no basis by which the Defendants can claim forcible possession of their venders prior to their purchase. Thus, there is no basis by which the Defendants can claim forcible possession of their venders prior to their purchase. Even Defendant No. 1 in his deposition did not breath a word about delivery of possession of suit plot by his vendor to him and/or with regard to possession of his vendor over the said plot. 10. Learned Counsel for the Appellants in course of hearing submitted that the Defendants were not required to prove their possession to the specific knowledge of the owner. What is necessary was that their possession must be established to be open and without any attempt of concealment. It is no more res-integra that mere sporadic acts of possession exercised from time to time would not be sufficient for the acquisition of title by adverse possession. All that the law requires is that the possession must be open and without any attempt of concealment. It is not necessary that the possession must be so effective so as to bring to it the specific knowledge of the owner. Such a requirement may be insisted on, where an ouster of title is pleaded but that is not the case here. The proposition of law, in view of the decision of the Supreme Court in the case of AIR 1981 707 (SC) is well settled. While dealing with adverse possession on inquiry into the starting point, i.e. the date on which the true owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other ingredients like manner in which the lands were possessed, the nature of possession have not been disclosed in the pleadings nor proved by evidence. The Supreme Court In the case of P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, observed: The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the Plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper. Intention to dispossess vis-a-vis intention to possesses can be marked very distinctively in the present circumstances. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The case in hand is one of the few cases where even an usually long undisturbed possession does not go on to prove the intention of the adverse possession. The Defendants have also not come up with a clear disclosure as to from which date they displayed hostile animus. There is also no pleading not any evidence worth the name to indicate as to when their vendors possessed the lands or exhibited hostile animus. That apart the Defendants 1 and 2 are strangers. There is no averment in the sale deed executed in their favour that possession of the disputed land was handed over to them by their vendors. Thus, the principle of tacking would not be applicable to the case. Law is well settled that possession for any length of time without claiming hostile animus would not become adverse. The onus of proving adverse possession is always on the person who sets up the plea. In the present case, Defendants 1 and 2 have taken the plea of adverse possession and as such the onus was open to them to establish that title of the Plaintiffs over the suit land had been extinguished due to their acquisition of title by adverse possession. The plea that the vendors of Defendants 1 and 2 were in possession over a portion of lands appertaining to Sabik Plot No. 165 was not reflected in the sale deeds. In the absence of any mention with regard to the said fact in the sale deeds, the claim advanced in the suit cannot be accepted. Further, there is also no evidence to reveal that the vendors of Defendant Nos. 1 and 2 were in possession of the suit land to the knowledge of the Plaintiff. Thus, the possession of the vendors, if any, cannot be taken advantage of by the Defendants by applying principles of tacking. Further, there is also no evidence to reveal that the vendors of Defendant Nos. 1 and 2 were in possession of the suit land to the knowledge of the Plaintiff. Thus, the possession of the vendors, if any, cannot be taken advantage of by the Defendants by applying principles of tacking. The Defendants to succeed in the case were required to establish continuous uninterrupted possession having hostile animus for a period of twelve years which they have totally failed. The Courts below have also dealt with the evidence, both oral and documentary, more particularly Exts.1 to 4 and Exts.A to D, and the conclusions arrived at pre in furtherance of the evidence on record. 11. In view of the aforesaid facts and circumstances, this Court is not inclined to interfere with the concurrent finding with regard to adverse possession as the same is a finding of fact. The Courts below have neither misconstrued the evidence nor committed any error in interpretation thereof. Thus, the Second Appeal has no merit and the same is dismissed. 12. Parties to bear their cost of the present appeal. Final Result : Dismissed