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2012 DIGILAW 132 (ORI)

Panda Kanojia v. Sankar Baghel

2012-03-14

M.M.DAS

body2012
JUDGMENT M.M. DAS, J. This appeal has been filed against a reversing judgment in a suit filed by the respondents for declaration of right, title and interest. The appeal was admitted on the following substantial question of law :- “Whether the lower appellate court has acted contrary to law by decreeing the suit filed by the plaintiffs on the finding that the plaintiffs have perfected their title over the disputed property by way of adverse possession even though no such case was pleaded by the plaintiff in the plaint and the plaintiff based his claim of title on an unregistered sale deed which was not accepted by either of the court below ? 2. Mr. Mohanty, learned counsel for the appellant submits that the respondents as plaintiffs have never pleaded in the plaint that they have perfected their title over the disputed property by way of adverse possession except stating in paragraph – 8 of the plaint that the plaintiffs are entitled to declaration of their title over the suit land on the basis of a sale, alternatively, if the sale is held to be invalid for any infirmity whatsoever, by way of uninterrupted open possession over the suit land on the strength of such invalid sale since more than four decades, they have perfected their title by adverse possession. According to Mr. Mohanty, these pleadings cannot be construed to be specific pleadings claiming declaration of title by way of adverse possession over the disputed property. The defendant–appellant denied the plaint allegations by specific assertions. 3. The learned trial court, on the pleadings of the parties, framed various issues out of which, issue No.1 was, as to whether the plaintiffs have right, title and interest over the suit land ? While discussing the cases of the respective parties and the evidence adduced by them before the learned trial court, it held, that the so-called sale deed relied upon by the plaintiffs marked as Ext.1 was scribed on a plain paper and not on stamp paper and was not registered. Further analyzing the evidence, the learned trial court found that Ext.1 seems to be a fabricated document and, therefore, the learned trial court refused to raise any presumption on Ext.1 under Section 90 of the Evidence Act and took Ext.1 out of consideration. Further analyzing the evidence, the learned trial court found that Ext.1 seems to be a fabricated document and, therefore, the learned trial court refused to raise any presumption on Ext.1 under Section 90 of the Evidence Act and took Ext.1 out of consideration. The learned trial court also discussed the question with regard to the claim of the plaintiffs’ title by way of adverse possession and came to the finding that the plaintiffs were never in possession over the disputed property. The learned trial court also found that the so-called plain paper unregistered sale deed having never been produced before the settlement authorities as is evident from Ext.2, the order sheet in Rent Objection Case No. 2518 -109/1993-48 maintained till 15.3.1993 though the settlement authority found possession of the father of the plaintiffs, the said Ext. 1 was not in existence even till 18.12.1993, when the R.O.R. under Ext. 4 was published and, therefore, question of remaining in possession for more than the statutory period over the disputed property as claimed by the plaintiffs does not arise. The plaintiffs being aggrieved, preferred an appeal, being, Title Appeal No.2 of 2002 against the judgment passed by the learned trial court in T.S.No.30/19 of 1999 – 2001. 4. The learned lower appellate court confirmed the findings of the learned trial court with regard to the alleged sale deed executed on a plain paper, which was also not registered, i.e., Ext.1. The learned lower appellate court also disbelieved the endorsement made in the remarks column of the ROR with regard to the possession of the father of the plaintiffs over the suit property and, as such, in effect, disbelieved the case of the plaintiffs that they are in possession over the disputed property. 5. Strangely, however, the learned lower appellate court, while confirming the findings of the learned trial court with regard to Ext.1 that it is a created document, placing reliance on the said Ext.1, came to the conclusion that even if Ext.1 is found to be invalid, possession of the plaintiffs pursuant to Ext.1, can confer title against the granter including the vendor by adverse possession, if the possession is more than the statutory period. 6. 6. It is no more res integra that a party claiming title by way of adverse possession is required to prove the essential ingredients of adverse possession, i.e., possession with hostile animus adversely to the interest of the true owner for more than the statutory period openly as of right and peaceably without any hindrance to the knowledge of the true owner, specifically mentioning the starting point of such adverse possession. Further, to establish title on the basis of adverse possession, a party is required to specifically plead such fact of adverse possession in its pleading. 7. In the instant case, however, except a bare statement made in the plaint with regard to adverse possession, no specific pleading has been advanced by the plaintiff in support of such claim. The learned lower appellate court, while concluding that even if Ext.1 is an invalid document, the same would not be sufficient to throw out the oral and documentary evidence adduced by the plaintiffs, committed an error in holding that “law is well settled that possession for more than 12 years under an invalid title deed will confer title against the grantor including the vendor.” This finding is contrary to law, since even calculating the possession of the plaintiff from the date of Ext.1, i.e., the plain paper unregistered sale deed, though it appears that from the said date, if the plaintiffs actually took possession of the disputed property and continued to remain in possession, the period would be more than the statutory requirement for claiming adverse possession, but the learned lower appellate court has not dealt with the findings of the learned trial court that Ext.1 is a created document having mentioned the plot number, which was only assigned to the suit land during the major settlement, which was conducted from 1959 to 1965, even though the said Ext.1 has been allegedly executed in 1956. 8. Without meeting the reasons assigned by the learned trial court, it appears that the learned lower appellate court has been swayed away by the entries made in the remarks column of the R.O.R. – Ext.4. 9. 8. Without meeting the reasons assigned by the learned trial court, it appears that the learned lower appellate court has been swayed away by the entries made in the remarks column of the R.O.R. – Ext.4. 9. Though the question of adverse possession is a mixed question of law and fact and the second appellate court is not to interfere with the finding on such question, but in the instant case, as it is found that the bare requirements of pleading to establish adverse possession is absent from the plaint and further the learned lower appellate court, which is the final court of fact and is required to meet the reasonings given by the learned trial court and assigns specific reasons as to why it disagrees with such reasonings, while reversing the finding of fact, which has not been done in the instant case, the above two questions assume the character of substantial question of law, which can be dealt with and examined by this Court as a substantial question of law. 10. In view of the foregoing analysis, this Court finds that the judgment of the learned lower appellate court is not sustainable. Accordingly, the said judgment of the learned lower appellate court, i.e., the court of the Additional District Judge, Nuapada passed in Title Appeal No.2 of 2002 is set aside and the judgment and decree passed by the learned trial court in T.S. No.30/19 of 1999 – 2001 is restored. 11. The Second Appeal is accordingly allowed. However, there shall be no order as to cost with regard to this appeal.