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2011 DIGILAW 232 (ORI)

Pranesh Ranjan De v. Narendra Pradhan

2011-04-15

V.GOPALA GOWDA

body2011
JUDGMENT V. GOPALA GOWDA, C.J. — This Second Appeal is filed by the plaintiff questioning the correctness of the impugned judgment of the First Appellate Court the impugned judgment passed by the learned Civil Judge (Sr. Division), Talcher in T.A. No.1/94 dated 31.1.2000 in appeal affirming the judgment and decree passed in T.S. No.2/87 dated 31.1.1994 by the Civil Judge (Jr. Division), Talcher urging substantial questions of law at paragraph-16 of the memorandum appeal, which will be extracted in this judgment after referring to the basic facts that are required for the purpose of answering the aforesaid substantial questions of law. This Court vide order dated 11.12.2001 treated the said grounds urged the substantial questions of law. 2.For the sake of brevity, the rank of the parties as referred to in this judgment as assigned in the plaint filed before the trial Court, the facts of the case may be stated thus : The plaintiff-appellant filed T.S. No.2/87 before the Civil Judge (Jr. Division), Talcher for declaration of right, title and interest over the suit land and for recovery of possession of the same. According to the plaintiff, he is the recorded owner of plot No.19 under khata No.2 comprising an area Ac.0.46 decimals situated in Mouza-Chauliakuta. He had purchased the same by way of registered sale deed in the year 1961 from one Mahesh Chandra Samanta. The said land has been exclusively recorded in the name of the plaintiff comprising of Ac.0.455 decimals in the ROR finally published by the Hal Settlement authority which is within the knowledge of the defendant. 3.It is the further case of the plaintiff that defendant’s plot bearing No.18 of the said village situates to the adjacent west of the suit plot and the plots were separated by small boundary wall for the purpose of demarcation. 4.It is his case that plaintiff and defendant were very cordial and as such on the request of the defendant, the plaintiff agreed and entered into a joint venture with the defendant to run a cement tile factory. Accordingly, a shed was constructed over the vacant portion of plot No.18 belonging to defendant and a portion of the suit plot No.19 belonging to plaintiff. Accordingly, a shed was constructed over the vacant portion of plot No.18 belonging to defendant and a portion of the suit plot No.19 belonging to plaintiff. The said construction of the shed was extended with a length of 70 links over the suit plot No.19 from the extreme western boundary towards east and also the shed was constructed out of common funds invested by both the plaintiff and the defendant. 5.It is the case of the plaintiff that misunderstanding cropped up between the parties and the defendant did not render accounts of the joint business. Therefore, plaintiff abandoned the idea of continuing the business relationship with the defendant. Subsequently, the shed which was constructed for the purpose of earthen tile business, due to efflux of time, got dilapidated and was completely blown away in the storm. Taking advantage of the situation the defendant encroached upon the suit land in the year 1984 measuring an area Ac.0.18 dec. and wanted to construct a compound wall compelling the plaintiff to file the above suit for removal of the encroachment and for recovery of possession after declaring the title of the plaintiff over the suit land. The defendant contested the suit and filed written statement pleading inter alia that he had constructed the shed over the suit plot from the year 1961 under a mistaken impression that the suit land is a part of his purchased land. The defendant also came up with an alternative plea that if the portion of the shed is found to have been constructed not over his purchased land but over the suit land, he having possessed the same for more than the statutory period, he has perfected his title over the suit plot by adverse possession. 6.It is the case of the plaintiff that defendant in his pleading was silent as to the date on which he came to adversely possess the suit land. He also utterly failed to prove that he had constructed the shed in the year 1967. The joint title business between plaintiff and the defendant though was successfully proved the permissive possession of the defendant over the suit land is clearly evident from the evidence on record. The trial Court by misinterpreting the law dismissed the plaintiff’s suit against which T.A. No.1/94 was filed. The Civil Judge (Sr. The joint title business between plaintiff and the defendant though was successfully proved the permissive possession of the defendant over the suit land is clearly evident from the evidence on record. The trial Court by misinterpreting the law dismissed the plaintiff’s suit against which T.A. No.1/94 was filed. The Civil Judge (Sr. Division), Talcher vide his judgment and decree dated 31.1.2000 and 14.2.2000 respectively confirmed the judgment and decree passed by the learned trial Court against which the present appeal is filed. 7.The substantial questions of law framed at the time of admission of the said appeal read as under : “(A)Whether plea of adverse possession can be sustained when defendant is not aware as to who is the owner of the suit land? (B)Whether the plea of adverse possession can be sustained when the starting point of acquisition of title by adverse possession is neither pleaded nor proved ? (C)Whether the Courts below have gone wrong by ignoring material evidence available in the record ? 8.In support of the said substantial questions of law learned counsel for the appellant urged that in the absence of pleading that who is the owner of the suit schedule property and the same was required to be pleaded and proved, the party could not have barked upon the witnesses and evidence of the plaintiff’s case to take advantage of his plea of adverse possession and further urged that present pleading of adverse possession requires clear and cogent proof which is lacking in the instant case. Therefore, both the Courts below have misinterpreted the evidence on record and the legal principles laid down on this aspect of the matter. In support of such contention, learned Sr. Counsel placed reliance upon the decision of the Supreme Court in L.N. Aswathama & another v. P. Prakash, 2009 AIR SCW 5439 and the decision of this Court in Chhuturam Manantant v. Jagadish Mahanta and another, 1997 (II) OLR 201. Both the Courts below have seriously committed an error in law in appreciating the plea of the defendant that he had been possessing the portion of the suit land since the year 1967 by constructing house and compound wall, which is a fabricated story. The defendant in his evidence clearly admits that for the first time that he got the permission to construct the shed in the year 1968. The defendant in his evidence clearly admits that for the first time that he got the permission to construct the shed in the year 1968. Further, in his evidence he has stated that Municipal Surveyor came to the Land after the defendant submitted his plan to the Municipality for approval. Further, in paragraph-8 of the deposition the defendant has admitted that he constructed his shed after getting permission from the Municipality. Therefore, the trial Court should have considered the aforesaid legal evidence on record and recorded the finding that the defendant belies his own plea that the shed was constructed in the year 1967. As a matter of fact there was no pleading in the written statement about construction of any such shed nor does the evidence support the plea of the defendant that the shed was constructed in the year 1967. In the absence of such plea, no evidence should have been adduced and in fact such evidence was adduced. Learned appellate Court while recording the findings on the contentious issue with reference to exercise of hostile animus over the suit land has misinterpreted the law by upholding the findings of the trial Court and dismissed the appeal against the plaintiff. The Courts below have utterly failed to notice that the defendant has miserably failed to place the documentary or oral evidence on record with regard to construction of the shed in the year 1967. The Courts below ought to have scrutinized material evidence on record with regard to defendant’s adverse possession of the suit land. 9.It is further submitted by the learned Sr. Counsel for the appellant that it is the admitted case of the defendant that he has no knowledge that he had been adversely possessing the suit land peacefully. It is also his admitted case that the defendant does not know if the suit land belongs to the plaintiff. Mere occupation of land will not prescribe any title by adverse possession in favour of the defendant. It is the settled position of law that the hostile animus of possession of the property must be against the real owner. It is also his admitted case that the defendant does not know if the suit land belongs to the plaintiff. Mere occupation of land will not prescribe any title by adverse possession in favour of the defendant. It is the settled position of law that the hostile animus of possession of the property must be against the real owner. 10.It is further submitted that a party who claims tile by adverse possession is bound to prove the following requirements of law, i.e, he must prove that he adversely possessed the land for more than the statutory period openly as of right peaceably without hindrance and to the knowledge of the true owner including the starting point. In the case at hand, a positive pleading is made out by the defendant that he had no knowledge that he had been possessing the suit land on his own right or that the suit land belongs to the plaintiff. In view of such specific case of the defendant, his claim for adverse possession over the suit land fails to the ground. Law envisages that there must be an open disclaimer brought to the knowledge of the true owner to claim adverse possession of the suit land. The adverse possession must be adequate in continuity, in publicity and in extent. 11.Further, it urged that both the Courts below went wrong by disbelieving the story of joint venture business. Both the Courts below misread the substantive evidence on record. Admittedly, in the storm the shed collapsed and it was ruined. This clearly indicates that plot No.18 and 19 belonging to the defendant and the plaintiff respectively were made to look as if it is one compact land without any division or demarcation after the storm and taking advantage of the situation when the defendant tried to raise compound wall by encroaching upon the suit land in the month of June, 1984, the plaintiff rightly filed the suit by pleading that he is the owner of the property and the defendant is unlawfully encroaching upon the suit land. Therefore, the Courts below finding the contentious issue on the pleading of adverse possession accepted the case of the defendant and dismissed the suit of the plaintiff which is an error of law, which is required to be answered in favour of the plaintiff setting aside the same and by passing the judgment and decree in favour of the plaintiff. 12.Learned counsel for the defendant sought to justify the findings of the learned trial Court contending that the trial Court has recorded its findings that plaintiff admits possession of the defendant on the suit land but pleads case of permissive possession. Plaintiff has failed to prove that the defendant was in permissive possession over the suit land. Further, on the basis of the pleas taken by the defendant that he was in possession of the suit land since 1967 and his continuous possession has not been disputed when the plaintiff permissive possession was failed, the defendant’s possession with the plea of adverse possession was accepted. Therefore, the suit is barred by limitation. Finding of the appellate Court is concurrent on the contentious issue holding that plaintiff’s plea of joint business and permissive possession failed and defendant’s possession being open with hostile animus to the knowledge of the plaintiff since more than 12 years, the same is turned into title. 13.It is further contended by the learned Sr. Counsel that the findings of adverse possession of both the Courts below are findings of fact concurrently held by both the Courts below and same warrants no interference in appeal as the substantial questions of law framed do not arise for consideration. He further contended that in order to establish the plea of adverse possession one has to show that the possession is adverse if the ingredients of the same are established such as continuity, publicity and notoriety. Continuity of possession must not be in physical but also legal. Publicity of possession does not necessarily mean that the possession must be to the actual knowledge of the true owner but the knowledge of the true owner may be actual or may be constructive. When possession is open without any attempt at concealment knowledge of the true owner of the land, such possession is to be legally construed even if he has not actual knowledge thereof. When possession is open without any attempt at concealment knowledge of the true owner of the land, such possession is to be legally construed even if he has not actual knowledge thereof. In support of his contention he placed reliance upon the decision of the Supreme Court in Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707 (Para-8). 14.He further submitted that not notoriety is otherwise known as possession with hostile animus i.e. denying the title of the true owner. It is not sufficient to say that the possessor is possessing in his own right as owner. In support of the said legal submission he placed reliance of the decision of this Court in Debendranath Sarangi v. Kulamani Sarangi Vol. XXXIX (1973) CLT 1005, wherein it has been held that possession of the possessor believing the land to be his own with the knowledge of the true owner can also be construed to be hostile. The said view was impliedly reversed by the Supreme Court in Deva (dead) by L.Rs. v. Sajjan Kumar (dead) by L.Rs., AIR 2003 SC 3907 , and subsequently the same was also relied upon by the Supreme Court in its subsequent decision reported in T. Anjanapa and others v. Somalingappa, Vol. 102 (2006) CLT 683 (SC), and later on in P.T. Munichikkanna Reddy and others, AIR 2007 SC 1753 . Therefore, as a corollary till 2007 it has been held one cannot in a suit take alternative plea that the suit land is his own land wherein he has proprietary title failing which he has alternatively acquired prescriptive title therein on account of his continuous possession as of right as owner to the knowledge of the true owner exceeding the period of limitation. But the said view of the Supreme Court was subsequently diluted by the decision reported in L.N. Aswathama and another v. V.P. Prakash, (2009) 2 CLR (SC) 446, wherein while answering question No.3 at Para-16, 17 and 18 their lordships by taking note of the earlier decision of Supreme Court specifically have held as follows : “When a person is in possession ascertaining to the owner even if he fails to establish his title his possession would be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative plea available on the same fact.” In view of the aforesaid decision of the Supreme Court, he prayed for dismissal of the appeal. 15.I have carefully examined the rival legal contentions raised at the Bar with reference to the substantial questions to which my answer is in affirmative in favour of the plaintiff for the following reasons. 16.It is not in dispute that the said plot No.19 was purchased by the plaintiff on 20.1.1961 from one Mahesh Chandra Samant. It is not in dispute that plot No.18 to the adjacent west of the suit plot belongs to defendant. In 1970 plaintiff and defendant with a view to start earthen tile factory with joint funds constructed a big shed covering a portion of plot No.19 and plot No.18. After construction of the shed, defendant insisted for further finance. As plaintiff did not agree, misunderstanding cropped up and the idea of starting the title factory was frustrated. The shed consequently was damaged. These pleadings have been accepted by both the Courts below. 17.With reference to the case it is pleaded by the defendant that he has purchased plot Nos.16 and 18 on 18.9.1961. At the time of taking possession of his land the defendant did not demarcate the same. The further plea taken by the defendant is that he has been possessing the suit land as his own land and he has acquired title by prescription. It is pleaded that defendant constructed a house over his land including the suit land after taking approval from Talcher Municipality. 18.The undisputed facts are that the lands of the plaintiff and the defendant are situated adjoining to each other covered by plot Nos.19 and 18 respectively. The land of the plaintiff was lying fallow when it was purchased. By the time of filing of the suit the defendant was in possession of the suit land measuring Ac.0.18 along with his purchased land. Both the Courts below have failed to appreciate the evidence of the plaintiff (P.W.1) and the Civil Court Commissioner (P.W.2) who conducted the local enquiry and found that the defendant has encroached upon the suit land. The said evidence is taken on record as the same was not objected to. Both the Courts below have failed to appreciate the evidence of the plaintiff (P.W.1) and the Civil Court Commissioner (P.W.2) who conducted the local enquiry and found that the defendant has encroached upon the suit land. The said evidence is taken on record as the same was not objected to. Further, the defendant himself as D.W.2 adduced evidence at para-6 of his deposition believing that the land on which shed was constructed is covered under plot No.18 and he constructed the shed. At para-15 it is stated that he was possessing the said land as its owner. At para-27 he has admitted that he has never demarcated the aforesaid land after purchase of the same. At the time of his purchase vacant land of Mahesh Chandra Samant was there adjoining to the east of his land. At para-29 of the deposition it is stated that he applied to the Municipality for construction of the shed on plot No.18 by giving measurement of the shed. Municipal Surveyor came with the map to his land for survey. Further, at para-70 of his deposition he has stated that no one has delivered possession of the land purchased by me under plot Nos.16 and 18. He has never got the lands demarcated by any Amin. 19.The aforesaid legal evidence has been conveniently omitted by the Courts below to appreciate the case of the plaintiff at the time of recording findings on the contentious issue that the defendant has the title over the property, as pleaded by him, from 1967 is not correct and rightly contended by the learned Sr. Counsel on behalf of the plaintiff in this appeal that the defendant has failed to prove as to from what date he has been in adverse possession. In the absence of plea regarding the alternative plea that the defendant is in adverse possession perfected title against the plaintiff is neither pleaded nor proved by adducing cogent and legal evidence. Therefore, the findings recorded by the learned trial Court that the defendant perfected his title to the schedule property by adverse possession is without any basis. The Courts below have conveniently omitted this contentious issue, while it is specifically stated by the defendant in his evidence that he never demarcated the aforesaid land after purchase of the same and for construction of the shed in question over plot No.18. The Courts below have conveniently omitted this contentious issue, while it is specifically stated by the defendant in his evidence that he never demarcated the aforesaid land after purchase of the same and for construction of the shed in question over plot No.18. Further, the pleadings of the defendant is that he constructed the shed in the year 1967 over plot No.18 having not been proved raises a vital legal ground which is urged on behalf of the learned Sr. Counsel for the plaintiff. It is rightly pointed out by the learned Sr. Counsel that the defendant has come up with a frivolous and fabricated story that the defendant constructed the shed in question in the year 1967 raised boundary wall around the same, which is established from his evidence that he never got the land demarcated since the date of purchase and for the first time he sought approval of the Municipality for construction shed in question in the year 1968. Learned Courts below ignored the evidence of defendant at para-8 of his deposition, wherein he admitted that he constructed the shed in question after getting approval from the Municipality. This important piece of substantive evidence is against the defendant regarding the prescriptive title by adverse possession. Both the Courts below ought to have examined this important aspect that defendant constructed the shed in question by raising boundary wall around it in the year 1967 on the absence of the pleading with reference to exercise of hostile animus over the suit land. Therefore, reliance placed on the decision of the Supreme Court L.N. Aswathama’s case (supra) squarely apply to the case in hand. Further, the decision of this Court in Chhuturam Manantant’s case (supra) supports the case of the plaintiff that non-consideration of the pleading, legal evidence with reference to adverse possession in respect of the suit schedule on account of the fact that shed was constructed, it is the permissive possession of the defendant. Permissive possession is not adverse possession as held by the Supreme Court in L.N. Aswathama’s case (supra), upon which reliance is placed by the learned Sr. Counsel Mr. Mishra for the defendant, wherein, the earlier decision of the Supreme Court in P.T. Munichikkanna Reddy’s case (supra) has been considered and certain observation has been made. 20.In my considered view, the reliance placed by the learned Sr. Counsel Mr. Mishra for the defendant, wherein, the earlier decision of the Supreme Court in P.T. Munichikkanna Reddy’s case (supra) has been considered and certain observation has been made. 20.In my considered view, the reliance placed by the learned Sr. Counsel for the plaintiff on the above referred decisions in support of his legal submission squarely apply in support of the plaintiff to hold that the concurrent finding recorded by the First Appellate Court regarding adverse possession and prescriptive title to the suit schedule property is not only erroneous but also an error in law and the reliance placed by the learned Sr. Counsel for the defendant on the decisions of the Apex Court referred to his submission in the earlier paragraph of this judgment are misplaced as they do not support the case of the defendant. Hence, the plaintiff must succeed. Accordingly, the appeal is allowed by answering the substantial questions of law in favour of the plaintiff-appellant and the judgment and decree passed by the appellate Court are set aside and the plaintiff-appellant is declared to be the owner of the suit schedule property by passing judgment in his favour as prayed for and defendant-respondent is directed to remove the encroachment forth with to put the plaintiff in possession over the property expeditiously within a period of six weeks from the date of receipt of the copy of this judgment. Appeal allowed.