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2014 DIGILAW 540 (ORI)

Rama Chandra Patra (Dead) after him, his L. Rs. Chittaranjan Patra v. Raghunath Jew

2014-08-28

RAGHUBIR DASH

body2014
Judgment R. DASH, J. This appeal is against the judgment and decree dated 25.10.1986 and 10.11.1986, respectively, passed by the learned District Judge, Mayurbhanj in Title Appeal No.8 of 1982 reversing the judgment and decree dated 27.02.1982 and 15.03.1982, respectively, passed by the learned Subordinate Judge, Baripada in T.S. No.63 of 1978-I. 2. The original Appellant-Rama Chandra Patra is the plaintiff. His suit for declaration of right, title and interest over the suit land was decreed by the learned trial court. Upon his death during pendency of the Second Appeal, his L.Rs. have been substituted and arrayed as Appellant Nos.1 to 6. Defendant No.2 is the Deity-Raghunath Jew represented by Trustee, the S.D.O., Baripada. In the first appeal preferred by defendant No.2, who is Respondent No.1 in this Second Appeal, the judgment and decree of the trial court were reversed accepting the Deity’s stand that the Deity acquired title in the suit property by way of adverse possession. Respondent Nos.2 and 3 are plaintiff’s brother and sister, respectively. They were arrayed as proforma defendants. The original Respondent No.4, late Bhaskar Behera, is D-1 in the suit, who claims to be a Sanja tenant under the Deity (D-2). Upon his death during the pendency of the Second Appeal, his legal heirs have been substituted as Respondent No.4(a) to 4(d). 3. For the sake of convenience, the parties, hereinafter, shall be referred to by their respective nomenclature as per the cause-title of the plaint. The plaint schedule ‘B’ contains the description of suit land measuring A1.94 decs. It stands recorded in the name of Aparti Behera under Sabik Khata No.2/1/1 of Mouza-Majanadihi. After his death the record was mutated in the name of her widow-Niasi Bewa vide order passed in M.C. Case No.184/1940-41. Aparti and Niasi died issueless. According to the plaintiff, after the death of Niasi the branch of Aparti became extinct and plaintiff’s father being Aparti’s brother’s son, the suit land reverted back to plaintiff’s father. After the death of Niasi, plaintiff’s father remained in possession of the suit land. After his death, the plaintiff having entered into an amicable settlement with his brother and sister (D-3 and D-4), remained in exclusive possession of the suit land in his own right. Thus, according to the plaintiff, he became the exclusive owner of the suit land. After the death of Niasi, plaintiff’s father remained in possession of the suit land. After his death, the plaintiff having entered into an amicable settlement with his brother and sister (D-3 and D-4), remained in exclusive possession of the suit land in his own right. Thus, according to the plaintiff, he became the exclusive owner of the suit land. When matter stood thus, D-1 during Rent Camp of the current settlement putforth a false claim before the settlement authority that the suit land belongs to the Deity-Bhagabat Gosain and D-1 being the Marfatdar of the Deity has been in cultivating possession of the suit land on payment of Sanja. At his behest, the Khata of the suit land was ordered to be corrected. Plaintiff challenged that order in appeal. In the appeal D-1 took altogether a different stand. This time, he claimed that the suit property was of Deity-Raghunath Jew (D-2) and being Debottar land it has been recorded in the name of D-2 in one O.E.A. proceeding. This plea was accepted without any probe. Order dated 14.11.1977 was passed by the Settlement Officer to record the land in the name of the Deity. According to the plaintiff, the suit land was neither Debottar nor Lakhraj land. So, its settlement, if any, with the Deity (D-2) in the O.E.A. proceeding is illegal. Never was the suit land settled with the Deity in any O.E.A. proceeding. Taking advantage of the order passed by the Settlement Officer, it is claimed, D-1 caused a proceeding under Section 144 Cr.P.C. initiated and started interfering with the plaintiff’s peaceful possession. Hence, the suit. 4. D-1 and D-2 have filed separate W.S. D-1 denies the relationship between Aparti and Niasi on one hand and the plaintiff on the other. D-1 claims the suit land to be the property of D-2 and he himself to be a Sanja tenant. He claims that he looks after as well as performs Seba Puja of ‘Bhagabat Gosain’, a village Deity having ASTHAN on a portion of the suit land. Prior to him his father was in possession of the land as a Sanja tenant and was doing Seba Puja of Bhagabat Gosain on behalf of the villagers. He claims that he looks after as well as performs Seba Puja of ‘Bhagabat Gosain’, a village Deity having ASTHAN on a portion of the suit land. Prior to him his father was in possession of the land as a Sanja tenant and was doing Seba Puja of Bhagabat Gosain on behalf of the villagers. D-1 further takes the stand that Niasi, after the death of her husband, gifted the suit land to Deity-Raghunath Jew (D-2) in the year 1947 and thus D-2 has been in possession of the suit land through tenant. Such possession is open, peaceful, continuous and adverse to all others. It being for more than the statutory period, the Deity has acquired absolute title over it. On behalf of D-2 it is pleaded that Niasi during last part of her life was leading an ascetic life. For the spiritual benefit of her deceased husband, she gifted the suit land to D-2 in or about the year 1947. Since then D-2 has been in possession of the suit land on his own right openly, peacefully, continuously and adversely to the interest, if there was any, of the plaintiff or his predecessor-in-interest. Thus, D-2 has acquired title over the suit land by adverse possession. It is also claimed that the suit land is Debottar property of D-2 and in the O.E.A. proceeding it is rightly settled with D-2. It is admitted that D-1 is a tenant under D-2 who has been in cultivating possession of the suit land. It is denied that either plaintiff or his father was ever in possession of the suit land. It is alleged that having come to know that the suit land stood recorded in the name of Niasi, the plaintiff lays false claim over the suit land. 5. D-3, plaintiff’s brother, first filed a W.S. supporting the stand taken by D-1 and D-2. However, at a later stage he filed another W.S. supporting the plaintiff’s case. 6. After recording evidence and having analysed the same, learned trial court concluded that the plaintiff is related to Aparti and Niasi as claimed by him in his plaint. It also held that Niasi did not make gift of the suit land to D-2 and that the settlement of the land with D-2 in any O.E.A. proceeding is invalid. 6. After recording evidence and having analysed the same, learned trial court concluded that the plaintiff is related to Aparti and Niasi as claimed by him in his plaint. It also held that Niasi did not make gift of the suit land to D-2 and that the settlement of the land with D-2 in any O.E.A. proceeding is invalid. It also recorded a finding that the plaintiff has been all along in possession of the suit land since the death of Niasi and that D-2 has not acquired title over the suit land by way of adverse possession. 7. Learned lower appellate court concurred with the trial court’s findings that plaintiff is related to Aparti and Niasi as claimed. On the nature of the alienation allegedly made by Niasi in favour of the Deity, it opined that it is not a gift but somewhat akin to it. As regards settlement of the land with the Deity under O.E.A. Act learned lower appellate court did not record a definite finding but concluded that an endowment was concerned with the suit land and it is the Deity who is owner of the suit land. On the factum of possession learned lower appellate court held that the Deity (D-2) has been in possession of the suit land. On the point of limitation learned lower appellate court observed that Niasi having died prior to 1952 and plaintiff having failed to establish that he was in possession of the suit land at any time within 12 years preceding the date the Limitation Act, 1963 came into force, he cannot succeed in the suit. 8. The following substantial questions of law have been framed: i) Whether the learned lower appellate court committed illegality in holding that the plaintiff has to prove his possession within twelve years of filing of the suit? ii) Whether the learned appellate court committed illegality in holding that an endowment is concerned with the suit land? iii) Whether the findings of the learned lower appellate court relating to adverse possession is sustainable in law? 9. Learned lower appellate court has reversed the findings of the learned trial court on the factum of possession. ii) Whether the learned appellate court committed illegality in holding that an endowment is concerned with the suit land? iii) Whether the findings of the learned lower appellate court relating to adverse possession is sustainable in law? 9. Learned lower appellate court has reversed the findings of the learned trial court on the factum of possession. Learned counsel for the appellants submits that learned trial court has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issue on possession whereas the learned First Appellate Court has, in a cryptic manner, reversed the findings of the learned trial court. Therefore, it is submitted, the findings of the learned lower appellate court on the factum of possession is to be set aside. In this regard, learned counsel for the appellants has cited the following observation of the Hon’ble Supreme Court in Santosh Hazari V. Purushottam Tiwari, reported in AIR 2001 SC 965 : 15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The judgment of the appellate court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. In the light of the aforequoted observations made by the Hon’ble Apex Court the sustainability of the findings of the learned lower appellate court is to be examined. When the trial court holds that after the death of Niasi, plaintiff’s father and then the plaintiff himself remained in possession of the suit land, learned lower appellate court concludes that some time prior to the death of Niasi she had given the land to the Math (Marfatdar of D-2) for cultivation in lieu of which she was to be maintained by the Matha. Both sides have adduced oral evidence. On behalf of D.2, documentary evidence was also adduced. Learned trial court found the oral evidence adduced by the contesting defendants to be unsatisfactory. According to the learned trial court, documents proved on behalf of D-2 were found not acceptable. Learned trial court raised adverse inference on the ground that D-1 did not come to the witness box to depose on the factum of possession. The oral evidence on the alleged gift adduced by D-2, 3 and 4, was not accepted by the learned trial court. Learned trial court raised adverse inference on the ground that D-1 did not come to the witness box to depose on the factum of possession. The oral evidence on the alleged gift adduced by D-2, 3 and 4, was not accepted by the learned trial court. It is held that there was no gift as claimed by D-1 and D-2. Learned lower appellate court has assigned cogent reasons for having accepted the documentary evidence on the factum of possession. Learned lower appellate court has rightly placed reliance on the entries made in Sanja Registers exhibited on behalf of D-2 as Ext.A to Ext.J/1 covering the period from 1954-55 to 1976-77. It has also assigned good reasons as to how non-examination of D-1 as a witness does not necessarily give rise to an adverse inference against D-2. The findings of the learned lower appellate court on the factum of possession cannot be said to be perverse or unjustified. That the suit land has been under the cultivating possession of D.2 through tenants is found established by the entries made in Sanja Registers. Learned trial court does not place reliance on the entries made in the Sanja Registers mainly on the grounds that the particulars of the suit land are not mentioned in those entries, that persons making the entries have not been examined and that there are irregularities in connection with the maintenance of the Register. But it is observed by the learned lower appellate court that the survey particulars of the suit land find mentioned in the relevant entries of the Sanja Registers. Learned lower appellate court has dealt with the other observations of the learned trial court in disbelieving the entries in the Sanja Registers and come to a conclusion that the entries in the Registers are reliable. The judgment of the learned lower appellate court reflects that there is application of mind and its findings are supported by reasons. The possession of the suit land on behalf of the deity is found proved by documentary evidence which out-weighs the oral evidence adduced by the plaintiff. The judgment of the learned lower appellate court cannot be said to be cryptic. 10. The possession of the suit land on behalf of the deity is found proved by documentary evidence which out-weighs the oral evidence adduced by the plaintiff. The judgment of the learned lower appellate court cannot be said to be cryptic. 10. D-2’s claim is that Niasi gifted the suit land to the deity in or about the year 1947 and since then the deity’s possession is adverse to the interest of the plaintiff and/or his predecessor-in-interest if they had any. On behalf of the appellant it is argued that even going by the conclusion of the learned lower appellate court that Niasi gave the suit land to the Deity in lieu of her maintenance, the possession which was delivered to the deity was nothing but permissive in nature and in absence of any evidence as to when it became adverse to the interest of the plaintiff or his predecessor, it cannot be said that D.2’s continuous possession, howsoever long, amounts to adverse possession. It is contended that the alleged transfer of the suit property by way of oral gift cannot be said to be a gift in-as-much-as it is not effected by execution of a registered deed and, furthermore, the land is said to have been given to the Math representing the Deity on condition that till her death she would be maintained by the Math. No doubt, it is pleaded in the W.S. filed by D.2 that Niasi gifted the suit land to the deity for the spiritual benefit of her husband. But while adducing oral evidence on the alleged gift, witnesses examined on behalf of D.2 have stated that Niasi gave the land to the deity, only to be maintained by the Matha till her death. Learned trial court while analyzing the evidence of D.W.3, who has adduced direct evidence on the alleged gift, has observed that Niasi had merely given the land for cultivation to the Matha in lieu of her maintenance during her life time. Learned appellate court has also observed that the transaction is not a gift. Under such circumstances, there is force in the contention raised on behalf of the appellants that the Deity’s initial entry over the suit land is permissive in nature. 11. Learned appellate court has also observed that the transaction is not a gift. Under such circumstances, there is force in the contention raised on behalf of the appellants that the Deity’s initial entry over the suit land is permissive in nature. 11. It is well settled 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 it amounted to a denial of his title to the property claimed. Whether the possession in question is permissive in nature can be ascertained from attending circumstances. It is the settled position that if possession is permissive at the inception, it does not become adverse unless by some positive overt act it is indicated that such possession became adverse to the knowledge of the owner. 12. True it is that in the case at hand, there is absence of pleadings as well as evidence as to when the deity’s permissive possession became hostile to the true owner of the land. However, in the facts and circumstances of this case this deficiency would not make any difference. This I say on the basis of Explanation (b) to Article-65 of the Limitation Act, 1963, which with some changes, carries forward the provisions contained in Article 141 of the Limitation Act, 1908. 13. Explanation (b) to Article 65 lays down that reversioner’s suit for recovery of possession must be filed within twelve years from the death of the Hindu widow inasmuch as possession of the defendant is deemed to become adverse from the time of death of the female. In that view of the matter, the deity’s possession over the suit land, even though permissive from the very beginning, is deemed to have become adverse on the death of Niasi and a period of more than twelve years had already elapsed by the time the present suit was filed. 14. At this stage let it be stated at the cost of repetition that Niasi was a widow who died issueless in or around 1948. At the time of her death the suit land was under the possession of the Deity (D2). Consequent upon her death, the title in the suit land passed on to the plaintiff’s father and thereafter to the plaintiff and his brother and sister. At the time of her death the suit land was under the possession of the Deity (D2). Consequent upon her death, the title in the suit land passed on to the plaintiff’s father and thereafter to the plaintiff and his brother and sister. But the possession continued to remain with the Deity for more than twelve years. Under such circumstance, suit for possession could have been filed by the reversioner or his successors-in-interest within 12 years from the date of death of Niasi. It was only in the year 1978 this suit was filed for declaration of right, title and interest as well as for permanent injunction. D-1 to D-2 have filed W.S. claiming that the Deity has been in possession of the suit land. But the plaintiff did not amend the plaint to incorporate the alternative relief of delivery of possession, obviously for the reason that such a relief is time barred. Ordinarily, in a situation where plaintiff’s title in suit immovable property is found established but he or she is not found to be in possession and there is no prayer for delivery of possession, the court may mould the relief and grant delivery of possession. This is what learned counsel for the appellants has also submitted in course of his argument. But in this case, such relief cannot be granted in view of Explanation (b) to Article 65 of the Limitation Act, 1963 (or old Article 141). In Munusamy Achari V. Rajambal Ammal and others: AIR 1977 MADRAS 228, it is observed as follows: Article 65 of the Schedule to the Limitation Act, 1963 read with Explanation (b) to that Article applies generally to all suits by Hindu plaintiffs, where the right to possession is claimed on the death of a female Hindu. The claim may be that of a reversioner of the last male holder or it may be that of an heir of a deceased female Hindu. Whatever be the case, provided the right of possession in the suit property is claimed on the death of a female Hindu, the deeming provision of Explanation (b) to Article 65 would operate, and the suit for possession would be within time if filed within 12 years of the death of the female Hindu on whose death the plaintiff claims possession. In Mahendra Nath Bagchi V. Tarak Chandra Sinha and others: A.I.R. 1932 Calcutta 504, it is observed as follows: Article 141 says that a suit for recovery of possession of immovable property on the death of a Hindu or Mahomedan female should be brought within 12 years from the date of the death of the female. It is evident that a suit for recovery of possession must be brought in respect of property of which the reversioners were out of possession at the death of the female and which was in the possession of another person from whom they seek to recover it. In the aforestated premises no fault can be found with the observation made by learned lower appellate court that even assuming that the plaintiff had a title to the land as an heir of Niasi, he lost the same by discontinuance of possession as also by adverse possession by the 2nd defendant. So the substantial question of law (i) and (iii) are answered accordingly. 15. As regards the question No.(ii) which is on the observation of the learned lower court that an endowment is concerned with the suit land it is to be stated here that the learned lower appellate court has made such an observation basing on one Gazettee Notification which is marked as Ext.-R. Referring to the Gazettee Notification, the learned lower appellate court has stated that along with other Khatas the suit Khata also finds mentioned at page-802 of the notification made in respect of a claim referred to the Tribunal under Section 13(D) of the Orissa Estates Abolition Act. Inviting attention to page-802 of Ext.-R, the learned counsel for the appellant has rightly pointed out that nowhere in the notification is there any mention of the suit Khata, i.e., Khata No.2/1/1 of Mouza-Majanadihi. This submission holds ground. So far Majanadihi Mouza is concerned, Khata Nos.1, 2/1/1/115/1/114 and 87/1/88/2 with an area of Ac.535.55 find mention at page-802 of the Gazettee Notification. Learned counsel for the respondent No.2 is not able to point out that the suit Khata finds place in the Gazettee Notification. 16. Admittedly, Aparti is the husband of Niasi who was the recorded owner of the suit land and after his death the ROR was mutated in the name of Niasi. It is not claimed that the suit land was either Debottar or Lakhraj land. 16. Admittedly, Aparti is the husband of Niasi who was the recorded owner of the suit land and after his death the ROR was mutated in the name of Niasi. It is not claimed that the suit land was either Debottar or Lakhraj land. Under such circumstances, it is difficult to accept that an endowment is concerned with the suit land. In the Hal settlement R.O.R. the suit land has been recorded in the name of D-2. The R.O.R. was so issued on the basis of an order passed by Settlement Officer vide Ext.-4. Learned lower appellate court while dealing with Ext.-4 has observed that the order passed by Settlement Officer vide Ext.-4 is, prima facie, incorrect but the Gazettee Notification gives support to the order of Settlement Officer vide Ext.-4. As already stated, in the Gazettee Notification there is no mention of the suit Khata. Therefore, this finding of the learned lower appellate court is incorrect. There is no iota of evidence showing that any endowment is concerned with the suit land. 17. On the basis of findings on substantial questions of law (i) and (iii) supra, the Second Appeal is found to be devoid of merit. Accordingly, the Second Appeal stands dismissed on contest but, in the facts and circumstances, without cost.