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2014 DIGILAW 403 (ORI)

Sarat Kumar Panda v. Sashibhusan Tripathy

2014-07-11

D.DASH

body2014
JUDGMENT The unsuccessful defendant No.1 and 2 are the appellants before this Court, being aggrieved by the judgment and decree passed by the learned Ad hoc Additional District Judge (FTC-4), Bhubaneswar in T.S. No. 380 of 2001 and they have called those in question in this appeal. By the said judgment, the suit of the plaintiff (respondent no. 1) for declaration of right, title and interest over the property described in A and A-2 of the plaint as prayed for has been decreed. 2. For the sake of convenience, clarity and to avoid confusion the parties hereinafter have been referred to as they have been arrayed in the Court below. 3. The case of the plaintiff is that he is the owner of a piece of land under hal plot No. 577 described in Schedule A-1 of the plaint. The land under Plot No. 578 originally belonged to defendant No.3 who is the cousin brother of the plaintiff and that adjoins the land under Plot No. 577. Plaintiff's further case is that he and defendant No.3 had purchased Plot No. 577 and 578, two adjoining plots in the year 1965. During Dushera period of the year 1968, when they were in the village in the district of Bargarh, defendant No.3 expressed his desire to alienate the land under Plot No. 578 for a consideration of Rs. 10,000/- and the plaintiff agreed to purchase the same. It is stated that the plaintiff paid a sum of Rs. 5,000/- while agreeing to pay the rest amount before the registration of the document in that regard. The arrangement is said to have been an oral one and that is because of the relationship. Defendant No.3 thereafter permitted the plaintiff to possess the said piece of land and the plaintiff continued to possess the said land of defendant No.3 since then. The arrangement is said to have been an oral one and that is because of the relationship. Defendant No.3 thereafter permitted the plaintiff to possess the said piece of land and the plaintiff continued to possess the said land of defendant No.3 since then. In the year 1969, towards the end, plaintiff cleared the land which were having some wild shrubs and also filed the low lying portion by stone and earth by engaging labourers and spending money from his purse: It is further stated that in January, 1970, the plaintiff construed a boundary wall with stones on the eastern side of his land and the land of defendant No.3 and stone pillars were fixed within the short distance of the eastern boundary followed by fencing of the some with a barbed wire and fixing of a gate. It is further stated that on the southern side, the plaintiff constructed stone pillars fenced with barbed wire and there was no necessity to fence the northern side as the adjoining land of one Damani Devi had the green fence in existence. So, the plaintiff claims to have been in possession of his land as well as the land of the defendant No.3 in one compact block. The plaintiff further states that he planted some trees over his land as well as the land of the defendant No.3 and in the year 1971, he construed a pucca house consisting of two rooms with asbestos roof on his land and had dug a well. In the said house, the plaintiff stayed with his family members. In the year 1987, plaintiff again construed a pucca building on his own land and thereafter in 1988, he also construed an industrial shed on the land of defendant No.3 for its utilization in manufacturing plastic and polished doors. The defendant No.3 although promised to execute the registered sale-deed on receiving rest consideration of Rs. 5,000/- did not come forward to do so despite several request from the side of the plaintiff. More specifically even in the month of November, 1978, the plaintiff when lastly requested the defendant No.3 to execute the sale-deed, the defendant No.3 declined to do so and rather on 26.01.1979 made attempt to dispossess the plaintiff from the land with the assistance of some hooligans, but he failed in his attempt to do so. More specifically even in the month of November, 1978, the plaintiff when lastly requested the defendant No.3 to execute the sale-deed, the defendant No.3 declined to do so and rather on 26.01.1979 made attempt to dispossess the plaintiff from the land with the assistance of some hooligans, but he failed in his attempt to do so. Thus the plaintiff claims to have been in possession of the suit land peacefully and continuously with necessary hostile animus till filing of the suit. However, it is the further case of the plaintiff that during settlement, the defendant No.3 managed to record his land in respect of land measuring an area of Ac. 0.20 decimals. But he asserts that despite such recording, the possession in the field remained with him (Plaintiff) and that was all along peaceful and continuous without any interruption. Being emboldened by said recording in the name of defendant No.3, he sold the same to defendant No. 1 and 2 by two registered sale-deeds dated 12.01.2001. It is said that although the sale-deeds were executed and registered in favour of defendant No.1 and 2, the same was not supported by delivery of possession in the field. Pursuant to the said sale-deed, on 13.01.2001 though defendant No.1 and 2, both attempted to make an entry to the said land, they failed to do so because of the resistance from the side of the plaintiff. The plaintiff had then filed a suit in the Court of Civil Judge (Jr. Division), Bhubaneswar on 23.01.2001 for declaration of right, title and interest and the defendant No.1 and 2 entering appearance there challenged the valuation. So ultimately, the suit was withdrawn and the plaintiff in view of such attempt of dispossession at the behest of the defendant No.1 and 2 filed the present suit. 4. Defendant No.1 and 2 contested the suit by filing written statement. Their case is that the defendant No.3 has purchased the suit land in the year 1965 and was in possession of the same till he sold to them by two registered sale-deeds on 12.01.2001 for valuable consideration. After the sale, defendant No.3 delivered the possession of the suit land to them. Since then they have been in enjoyment of the same being in possession with right, title and interest over the same being bona fide purchasers for value. After the sale, defendant No.3 delivered the possession of the suit land to them. Since then they have been in enjoyment of the same being in possession with right, title and interest over the same being bona fide purchasers for value. It is also their case that they erected the asbestos roofed house over it which was assessed with holding tax. They further assert to have taken electric and water connection to the said house and to have been paying the charges towards the same. The defendant No.1 and 2 also stated to have got their voter identity cards from the said locality. They deny that the plaintiff had ever possessed the suit land in any manner. It is their further case that the plaintiff in order to grab suit land filed the case without any possession and with that ulterior motive. It is only when the plaintiff's move before the Court of Civil Judge (Junior Division), Bhubaneswar in a misc. case under Order 39, Rules 1 and 2 CPC to injunct the defendant No.1 and 2 did not succeed and his approach to this Court when also became unsuccessful with his claim for possession being prima facie negatived, said suit having been withdrawn again, the present suit has been filed. They also question the maintainability of this suit on that count. 5. On such rival pleadings, the trial Court has framed as many as seven issues and has taken up issue No.3 relating to the prayer of the plaintiff as regards acquisition of right, title and interest over land under plot No. 578 by way of adverse possession first for decision. 6. Upon consideration of the evidence and on their analysis, the trial Court has come to a finding that the plaintiff having possessed the suit land from 26.01.1979 with necessary hostile animus, peacefully to the knowledge of true owner and having continued to possess the same without any interruption as its owner, has acquired right, title and interest over the suit plot No. 578 by way of adverse possession. Next issue No.4 concerning the improper description of the suit land being not in conformity with Order 7 Rule 3 of the CPC has been answered in favour of the plaintiff. Thereafter, issue No. 5 that if the suit is hit, under Order 2 Rule 2 of CPC has also been answered in favour of the plaintiff. Next issue No.4 concerning the improper description of the suit land being not in conformity with Order 7 Rule 3 of the CPC has been answered in favour of the plaintiff. Thereafter, issue No. 5 that if the suit is hit, under Order 2 Rule 2 of CPC has also been answered in favour of the plaintiff. Lastly, issue No. 6 with regard to the valuation of the suit having been found to be in order, the suit with the relief's claimed has been decreed. 7. It may be stated here that during trial plaintiff examined five witnesses including himself as P.W.5 and from the side of the defendant Nos. 1 and 2, the defendant No.2 has examined himself as D.W.1. From the side of the plaintiff, certified copy of the Record of Right and sale-deed in respect of land under Plot No. 577 has been proved besides other documents. The defendant No. 1 and 2 on the other hand have proved their sale-deeds Ext. C and D as well as the receipts Ext. H and H-1 and other documents. 8. Learned counsel for the appellant in course of hearing mainly impugnes the finding of the trial Court on issue No.3. According to him, the decision on issue No.3 practically decides the fate of the suit and is thus pivotal one. It is his submission that even accepting the pleadings, the answer on issue No.3 as rendered by the trial Court is unsustainable. It is his submission that the very case and claim of acquisition of right, title and interest by adverse possession as projected by the plaintiff is not acceptable in the eye of law and such a plea ought to have been out rightly turned down. According to him the plaint averment as well as evidence let in by the plaintiff on whom the burden lies to establish his case of acquisition title by adverse possession in respect of the land under Plot No. 578 do not at all satisfy the required ingredients. He contends that the trial Court has erred both in law and fact by answering issue No.3 in favour of the plaintiff. So, he vehemently urges that the said answer to issue No.3 as rendered by the Trial Court is liable to be set aside. On this ground alone, he urges for setting aside the judgment and decree impugned in this appeal. So, he vehemently urges that the said answer to issue No.3 as rendered by the Trial Court is liable to be set aside. On this ground alone, he urges for setting aside the judgment and decree impugned in this appeal. Learned counsel for the respondent No.1, on the contrary, supports the finding of the trial Court on issue No.3. It is his contention that the evidence on record being overwhelming to the effect that the plaintiff remained in possession over the land under plot No. 578 at least with effect from 26.01.1979 peacefully, continuously, without any interruption on his own right as its owner thereof, denying title of the true owner and adverse to their interest, the finding rendered by the trial Court is unassailable. Therefore, he contends that the judgment and decree passed by the Court below have to be confirmed. Accordingly, he urges with vehemence for dismissal of this appeal. 9. Before proceeding to judge the sustainability of the finding of the Court below on issue No.3, it is felt as the absolute necessity to place the settled possession of law as regards acquisition of title of adverse possession. The possession to become adverse must be actual, visible, exclusive, hostile and continued during the time necessary to create bar under the statute of limitation. The classical requirements stand that the possession must be nec vi, nec calm and nec precario that is to say, the possession must be adequate in continuity, in publicity and in extent. It means possession by a person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession provided the true owner is under a disability or incapable of suing. Adverse possession is a possession that is hostile, under the claim or colour of title, actual, open, notorious, exclusive, and continuous continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by the operation of limitation of action. Mere possession even of a trespasser will not constitute adverse possession unless accompanied by open assertion of hostile title. It is also the settled law that adverse possession commences in wrong and is aimed against right and matures as such by holding such property adverse to the real owner wholly excluding him from enjoyment of his property in any manner. Mere possession even of a trespasser will not constitute adverse possession unless accompanied by open assertion of hostile title. It is also the settled law that adverse possession commences in wrong and is aimed against right and matures as such by holding such property adverse to the real owner wholly excluding him from enjoyment of his property in any manner. Law is fairly well settled that for establishment of plea of adverse possession, it is not sufficient to prove mere possession for the required period but such possession should be adverse and hostile to the claims of the true owner. So, burden to establish the possession contrary to law against the interest and without the consent of the owner lies upon the person pleading the case of adverse possession and setting up a title on the basis of that unto himself. The two inseparable ingredients are - corpus possidendi and animus-possidendi. It means physical possession of one hand and intention to exclude adversary from the possession overtly without admitting any concealment and must be adequate in continuity. 10. It is the case of the plaintiff that on receiving the agreed part consideration of Rs. 5000/- for the purpose of sale, the defendant No.3 permitted him to possess and develop the land according to his wish and requirement (para 7 last sentence). It is next stated in para-8 that the plaintiff remained in possession and in the month of December 1969, he removed wild shrubs and planted some trees etc. Where after it is also stated that some construction work were made over it. The relevant and most important are para-14 and 15 of the plaint which are extracted herein below for better appreciation. (14) that eventually sometime in the month of November 1978 when the plaintiff for the last time requested the defendant No.3 to execute and register the sale-deed, the defendant to the other (sic) surprise of the plaintiff turned a volte-face (sic) and bluntly refused to execute and register the sale-deed and on 26.01.1979 admitted to dispossess the plaintiff from A schedule land with the assistant of hooligans but such attempt was put on the foil at the instance of the plaintiff. (15) that from that day onwards the plaintiff possessed the Schedule A land openly, peacefully, continuously and as of right with hostile animus and thereby acquired indefeasible title to the same by the adverse possession. (15) that from that day onwards the plaintiff possessed the Schedule A land openly, peacefully, continuously and as of right with hostile animus and thereby acquired indefeasible title to the same by the adverse possession. It has again been stated that in para 19 of the plaintiff that on 13.01.2001, the defendant No.2 land had attempted to enter into the suit land which was resisted. 11. From the very case of plaintiff it thus clearly emerge out that he initially possessed the land pursuant to the oral agreement for sale on payment of Rs. 5000/- to the defendant No.3. So, when the possession began it is nothing but permissive being on the basis of an agreement of sale without hostile animus being attached to it. Permissive possession and hostile animus operate in conceptually different fields. Adverse possession designates a possession in opposition to the true title and real owner and implies that it commenced in wrong and maintained against right. Possession commencing with the permission of the owner does not become adverse by mere change in the mental attitude of the person in possession. When the origin of the entry is permissive, there is presumption that the possession is continuing as permissive. 12. In "Parsinni (dead) by LRs and others v. Sukhi and others; 1993 (4) SCC 375 , the apex Court, held that: "........ The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. The party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner." xxx xxx xxx xxx "The concept of adverse possession contemplates a hostile possession, i.e. possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them". For deciding whether the alleged act of a person contributed adverse possession, the animus of the person doing those acts is the most crucial factor. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them". For deciding whether the alleged act of a person contributed adverse possession, the animus of the person doing those acts is the most crucial factor. The judgment of the Privy Council in the case of "Ejaz Ali Qidwai v. The Special Manager, Court of Wards, Barhampur Estate AIR 1935 PC 530, has been referred to by the Apex Court and the following passage has been quoted: "The principle of law is firmly established that a person who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed." Thus, for deciding whether the alleged acts of a person constitute adverse possession, the animus of the person doing those acts is the most crucial factor. In the case of Thakur Kishan Singh v. Arvind Kumar, reported in AIR 1995 SC 73 , the Apex Court, in para 5, held as follows: ".......5 As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licence or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for however length of time does not result in converting the permissive possession into adverse possession." In an other decision in case of T.Anjanappa v. Somalingappa, 2006 (8) JT 382 , it has been held that mere possession, how-so-ever long, does not necessarily mean that it is adverse to the true owner and in order to constitute adverse possession, the possession must be proved to be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. It was further held that classical requirement is that such possession is in denial of true owners' title and must be peaceful, open and continuous. It was further held that classical requirement is that such possession is in denial of true owners' title and must be peaceful, open and continuous. Also in Govindammal v. R.Perumal Chettiar, AIR 2007 SC 204 , it is held that there must be a hostile, open possession, denial and repudiation of rights of competitor and this denial and repudiation must have been brought home to the knowledge of the competitors. 13. In the case in hand it is the case of the plaintiff that he began the possession on the basis of agreement for sale. So the possession is not in denial of title and rights of the true owner and it is with the hope that he would possess as its owner only from that time on materialization of the transaction which means that till then the ownership and all rights of the owner are duly acknowledged and the possession remains on that basis. In such an eventuality, the possessor being the proposed vendee begins to possess with intention that only in future he would be owner when will be armed with the document of sale i.e. title and so till then there arises no scope of possession as owner of the property when it is in full acknowledgment of title of the true owner and not in denial of it. So the possession as such on the basis of an agreement for sale is permissive in nature. 14. In Roop Singh v. Ram Singh, AIR 2000 SC 1485 , it was held that mere possession for a long time does not result in converting permissive possession into adverse possession; "xxx xxx The permissive possession will always continue to be permissive till and until the licensee asserts and proves the assertion of adverse possession. Such assertion and the proof in that regard should necessarily be for a continuous period of twelve years. The Apex Court in Sheodhari Rai v. Suraj Prasad Singh ( AIR 1954 SC 758 ) has clearly held that where possession is proved in its origin to be permissive, it will be presumed that it continued to be of the same character until and unless something occurred to make it adverse. The Apex Court in Sheodhari Rai v. Suraj Prasad Singh ( AIR 1954 SC 758 ) has clearly held that where possession is proved in its origin to be permissive, it will be presumed that it continued to be of the same character until and unless something occurred to make it adverse. The Supreme Court has further held in State Bank of Travancore v. A.K.Panicker ( AIR 1971 SC 996 ) that there must be open and explicit disavowal and disclaimer brought to the knowledge of the owner. Mere possession for however length of time does not result in converting the permissive possession into adverse possession, as has been ruled by the Supreme Court in Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 the permissive possessor has necessarily to prove some overt act on his part indicating assertion of hostile title. It is well said that permissive possession and hostile animus operate in conceptually different fields, and the permissive possession does not become adverse by a mere change in the mental attitude of the person in possession and it is for such person to prove as to from which date the permissive possession became hostile." The position has been further set at rest in Gaya Parshad Dikshit v. Nirmal Chander and another, AIR 1984 SC 930 and it runs as under: "xxx xxx we find ourselves wholly in agreement with the view taken by the High Court that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licence. It is not merely unauthorized possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises by himself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises by himself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorized possession even for a period of more than 12 years is not enough xxxx" This Court in Nirakar Das v. Gourahari Das; AIR 1995 Orissa 270 have held as under: "When the possession is permissive on the basis of an agreement to sale, it has to no hostile animus attached to it." xxx xxx xxx xxx "When a party accepts that possession was given on the basis of agreement to sale, the possession can never be adverse." 15. The above being the position here in the case, the plaintiff is certainly burdened to establish as to from which date the permissive possession became hostile and on his failure to do so, the possession has to be taken to be permissive. Permissive possession never becomes hostile possession till there is assertion of hostile possession about the knowledge of the true owner. When the party accepts that possession was given on the basis of agreement for sale, the possession can never be adverse but it is permissive and the party cannot be said to be in possession in assertion of his own title adverse to the real owner. So, here in the given case even accepting the case of possession of the suit land by the plaintiff it requires examination whether there has been conversion of the nature of possession from that of permissive to adverse to the true owner with hostile animus by way of assertion of right by the plaintiff unto himself at any subsequent point of time as pleaded that from the day the attempt to dispossess was successfully thwarted and then that continued for upward of the statutory period. 16. Given a plain reading to para-14, 15 and 19 of the plaint and accepting those for a moment to have been proved in the present case, it is seen that the plaintiff had last asked for execution of sale-deed by defendant No.3 which was denied in November 1978 and then plaintiff maintained his possession despite of-attempt by the defendant No.3 to dispossess on 26.01.2001. It has in no way been pleaded that on what ground and by expressing what such attempt of dispossession was successfully resisted and thereafter possession was maintained, so as to even infer for a moment that there was break of the possession from its nature as permissive and conversion of the said possession being clothed with its nature as adverse to the true owner or others claiming through the true owners. Simply by stating that the possession continued being resisted and maintained against the attempt of dispossession, the nature of possession can never be said to have been converted as that with hostile animus in denial of the title of the true owners. It very well remains the possession with its nature as before and nothing more but that the possession has to be restored back by the process of law and not on the mere asking or by force which is spelt out from that action of plaintiff as also underlying when he made the attempt of defendant to take possession futile. 17. At this stage it is profitable to have a glance at on the evidence of plaintiff himself. For the purpose para-15 and 16 of the deposition of P.W.5, the plaintiff bear significance. The pleadings as referred to and quoted above have just been repeated. When it is stated that it is so open, possession continued as of right with hostile animus, there is no whisper as to how it became hostile or in which way hostile animus sprang up. Mere utterance of such words in evidence would not suffice the purpose of proof of those. The acts or omission, conduct of parties in any manner in the light of and in such directions and any other circumstances as those emanate are to be shown and proved conclusively leaving the Court to examine as to whether the ingredients have been fulfilled in clear terms. All these are wholly absent in the pleading as well as in evidence. All these are wholly absent in the pleading as well as in evidence. So even accepting the evidence in its entirety, while saying for a moment that the plaintiff continued to possess the land since the time he was permitted to possess pursuant to the oral agreement to sale and the attempt to dispossess had been foiled being resisted, the same do not place the plaintiff in any better position so far as the nature of possession of suit land is concerned here altrough. The trial Court as it appears has erred in by giving such a finding being in obligation to the settled position of law and as it appears ignoring the aspect that the plaintiff on his own sowing has not been able to establish his case so as to reap the fruit of entitlement to the relief of the declaration of right title and interest over the suit land under Plot No. 578. Therefore, the finding of the trial Court that with effect from 26.01.1979 possession of the plaintiff as adverse in nature commenced and with continuance of the same beyond the statutory period, the plaintiff has acquired an indefeasible right over the land under Plot No. 578 by way of adverse possession is wholly indefensible. In view of the foregoing discussion, the finding of the trial Court is held to be unsustainable in the eye of law and same is thus liable to be set aside which is hereby done. 18. Resultantly, the appeal stands allowed and in the circumstances without cost. The impugned judgment and decree passed by the Court below are hereby set aside and the suit of the plaintiff (respondent No. 1) stands dismissed in the circumstances without cost through out. Appeal allowed.