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2016 DIGILAW 191 (ORI)

Shakuntala Mishra v. Jagadeep Pratap Deo

2016-03-04

D.DASH

body2016
JUDGMENT : D. DASH, J. 1. The appellants in this appeal have called in question, the judgment and decree passed by the learned 1st Ad hoc Additional District Judge, Sundargarh in R.F.A. No. 26/32 of 2004. The respondent as the plaintiff had filed the suit i.e., Title Suit No. 03 of 1998 in the Court of Civil Judge (Sr. Division), Sundargarh for declaration of his right, title and interest over the suit land, for recovery of possession and permanent injunction. The suit having been decreed, the appellants before this Court as the unsuccessful defendants had carried the first appeal. In the said appeal under Section 96 of the Code of Civil Procedure, the judgment and decree passed by the trial Court having been confirmed the present appeal under Section 100 of the Code has come to be filed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. The plaintiff's case is that one Biratendra Sekhar Deo and his brother Bharatendra Sekhar Deo were the recorded tenants in respect of Hal Khata No. 507 extending an area of Ac. 16.02 decimals. There was an amicable partition between the two brothers and there the suit land as stated under Khata No. 507 bearing plot No. 3/4035 measuring Ac. 14.00 decimals had fallen to the share of Bharatendra Sekhar Deo. Being in need of money, Bharatendra sold the suit land to the plaintiff by executing two registered sale deeds on 8-10-1990 and 10-10-1990 for consideration of Rs. 27,000/-. Bharatendra being in possession is also said to have delivered possession of the suit land to the plaintiff pursuant to the said sale. It is stated that the defendant having no manner of right, title and interest over the suit land, all of a sudden on 3-1-1993 by show of force constructed a house over the suit plot for which the suit has been filed. 4. The defendant's specific case is that, he being Brahmin by caste has been staying in Sundargarh since the year 1959-60. It is stated that the Ex-Ruling Chief of Gangpur Estate namely, late Bir Udit Pratap Sekhar Deo had given the suit land to him as "Brahmatora Dana" on the death anniversary of his grandfather, late Maharaja Raghunath Sekhar Deo. 4. The defendant's specific case is that, he being Brahmin by caste has been staying in Sundargarh since the year 1959-60. It is stated that the Ex-Ruling Chief of Gangpur Estate namely, late Bir Udit Pratap Sekhar Deo had given the suit land to him as "Brahmatora Dana" on the death anniversary of his grandfather, late Maharaja Raghunath Sekhar Deo. It is also said that the defendant was called for the purpose and was given the delivery of possession of the suit land as per vedic rites on 10-6-1962. This dana is said to have been made in seeking the blessings for the departed soul to rest in peace in heavenly abord. Along with said Brahmatora Dana, the defendant was also offered "Dakhina" which he had accepted. His further case is that spending the amount which he had received as Dakhina, he constructed a kachha house over the suit land for his stay with his family in the year 1962 and later on opened a tea stall on the Nayanjori lying between the suit land and P.W.D. road. The defendant is said to have been paying fine for such encroachment of the said Government land. It is his further case that though Bir Udit Pratap Sekhar Deo had promised to execute a document in support of said Brahmatora Dana in respect of the suit land in favour of the defendant, due to his prolongted illness and as for his treatment, he remained far away from Sundargarh, it did not ultimately materialise till his death in the year 1967. Thus, the defendant asserts to be in possession of the suit land since 10-6-1962, the date when he entered into possession with the same being duly delivered by Bir Udit Pratap Sekhar Deo as Brahmatora Dana. Accordingly in the record of Hal Settlement operation in the remarks column, defendant's possession has been noted. R.O.R. being published on 15-9-1978, in that very year, a proceeding under Section 145 of Code of Criminal Procedure commenced between the parties. In the said proceeding, the possession of the defendant has been declared. The defendants further claim to have been leasing out portions of the suit land to different persons in the year 1986 to meet his financial difficulties. 5. In the said proceeding, the possession of the defendant has been declared. The defendants further claim to have been leasing out portions of the suit land to different persons in the year 1986 to meet his financial difficulties. 5. The trial Court on the above rival pleadings framed as many as twelve issues and answers have been given that oral gift is not valid and the defendant has not acquired any title by that. It has also been stated that since the defendant has remained in possession with the consent of the true owner, he has not acquired any title by adverse possession. Then having rendered a finding that Bharatendra having the title over the suit land has validly sold the suit land vide Exts.1 and 2, the plaintiff ultimatly has been found to have got the right, title and interest over the suit land is as entitled for the relief of recovery of possession. 6. The unsuccessful defendant had moved the lower appellate Court, it has been held that initially possession of the defendant was permissible up to 1967 and the defendant have failed to prove their case of acquisition of title over the suit land by adverse possession. Ultimately, it has confirmed the trial Court decree passed in favour of the plaintiff. 7. The appeal has been admitted on the following substantial questions of law:- (1) Whether an entry in the suit land through a gift amounts to permissive possession and would remain as such all along. (2) Whether the gift is illegal and valid acted upon in the absence of registered gift deed. 8. Learned counsel for the appellant at the outset prays for framing of an additional question of law which runs as under:- Whether the Courts below have committed grave illegality in entertaining the suit filed after 12 years of publication of record of right and thereby the plaintiff's right, title and interest over the suit land got extinguished under Section 27 of the Limitation Act and the defendant has acquired title by adverse possession under Section 65 of the Limitation Act. He further submits placing reliance upon the decision of the Hon'ble Apex Court in case of Amarendera Pratap Singh v. Tejbahadur Prajapati and others, (2004) II OLR SC 117 : AIR 2004 SC 3782 and T. Anjanappa and others v. Somallingappa and another, (2006) 7 SCC 570 : 2006 AIR SCW 4368 as also following decisions in case of Angara Bhoiani and others v. Kanhei Mishra and another, AIR 1981 Ori 93 ; Amulya Chandra Banarjee v. Bisewar Mukharjee, (1986) 62 CLT 204; State of West Bengal v. Dalhousie Institute Society, AIR 1970 SC 1778 ; Haribandhu Jena and another v. Dandapani Sahu and others, (1990) 32 OJD 66 (Civil) and in case of Ramlal and another v. Phagua and others, (2006) 1 SCC 168 : AIR 2006 SC 623 , that herein view of the rival pleadings and the evidence on record, the Courts below ought to have given a finding that the defendant has acquired title over the suit land by adverse possession for having possessed the suit land openly, peacefully and continuously for much more than prescribed period exhibiting hostile animus by remaining in possession as its owner. 9. Learned counsel for the respondent submits that there is no need to frame the additional substantial question of law as it has to automatically receive the answer while addressing the two substantial questions of law earlier framed. He supports the finding of the Courts below that the gift as pleaded by the defendant is not valid in the eye of law and as the plea itself falls flat. He further submits that even the evidence on record are not acceptable on the score of delivery of possession of the suit land pursuant to the so-called gift and thus according to him, the factum of gift notwithstanding its legality has also not been established. In view of that, he contends that when the factum of gift has not been established by clear, cogent and acceptable evidence, the advancement of the plea of acquisition of title by adverse possession looses its ground. In this connection, he has placed reliance upon the decision of the Apex Court in case of Karnataka Board of Wakf v. Government of India & Ors. (2004) 10 SCC 779 . In this connection, he has placed reliance upon the decision of the Apex Court in case of Karnataka Board of Wakf v. Government of India & Ors. (2004) 10 SCC 779 . Furthermore, he contends that the defendant in the present case failed to establish all necessary ingredients for acceptance of a case of perfection of the title by adverse possession. He has placed reliance in case of P.T. Munichikkanna Reddy and others Revamma and others, AIR 2007 SC 1753 and Laxmishankar Harishankar Bhatt v. Yashram Vasta (dead), AIR 1993 SC 1587 . 10. The very case of the defendant is based on the Bramhatora Dana said to have been made by late Bir Udit Sekhar Deo on 10-6-1962 and he claims to have entered into possession over the suit land being delivered by the donor and as such to have remained in physical possession all through. Next an alternative case has been set up that the defendant has acquired title over the suit land by way of adverse possession. It has further been averred by the defendant that the donor had promised to execute a deed in respect of the gifted land but it could not materialise as the donor remained ill and ultimately died in the year 1967 on account of the same. Thus, the defendant having remained with a fond hope of getting regular deed of gift as required under the provision under Section 123 of Transfer of Property Act read with Section 17 of the Registration Act, the entry to the suit land by the defendant is certainly couched with the promise to the above effect and as per said arrangement. So, even if it is believed that the defendant entered into the possession over the suit property from the year 1962, the same cannot be said to be in denial of the title of the true owner in no way exhibiting any hostile animus. It is the settled position of law that mere possession of immovable property by a person for any length of time does never give rise to a case of acquisition of title of adverse possession and that it has to be open, peaceful and continuous possession and the intention of the possessor in possessing the land remains the most important factor for consideration. So, here when the nature of possession of the defendant since the entry into the suit land is found to be permissive that is not even as a donee but as a prospective donee, it was required to be shown by positive evidence as to since when the permissive nature of possession got converted to that of adverse to the true owner. And here the defendant in order to establish his claim of acquisition of title is required to show that he gave a good bye to the earlier arrangement at the time of entry and asserted his independent hostile adverse possession to the knowledge of the donor or his successors in title or interest and that the latter had acquiesced to his illegal possession during the entire prescribed period of twelve years i.e. up to completing the period title by prescription; nec vi, nec calm and nec precario. In the case in hand support is sought to be derived by the defendants from the records of the settlement and reliance is placed on the order passed in Rent Case No. (1307/75)/177 of 1981 marked as Ext. H. The case was filed by the defendant against the recorded owner. The A.S.O. by order dated 08 of 1976 directed to record the possession. The report of the Amin which forms part of the record has been marked as Ext.5 and from the same it is seen that the possession of the defendant was for about 9 years by then with the permission of Bir Udit Pratap Sekhar Deo and the defendant had insisted there for recording the land on the basis of his possession. This entry itself lands the defendant nowhere to establish and prove his nature of possession. Even with regard to commencement of the possession and its nature, the lower appellate Court has discussed the evidence vividly. The evidence of D.W. 4, who is a tenant under the defendant go to show that the suit land was lying vacant, raising doubt on the case of the defendant that the possession was from the year 1962 by constructing a house over the suit land. The evidence of other witnesses i.e. D.W. 6 and D.W. 7 have also been taken into consideration by the lower appellate Court. The evidence of other witnesses i.e. D.W. 6 and D.W. 7 have also been taken into consideration by the lower appellate Court. Analysing the evidence, the lower appellate Court has arrived at a conclusion that the defendant has failed to establish his case of acquisition of title by adverse possession. The order of Executive Magistrate passed in proceeding under Section 145 of the Code of Criminal Procedure has been held to be of no help to the defendant since in the said proceeding, no notice was served upon the adversary and this conclusion has been arrived at by examining the entire order sheets of the said proceeding. On detail analysis of evidence both oral and documentary on record, the Courts below have thus rendered a concurrent finding against the defendant in negating his claim of acquisition of title by adverse possession, with specific finding that the nature of possession to be permissive from the beginning and that the ingredients to establish a case of acquisition of title by adverse possession have not been established by clear, cogent and acceptable evidence. In that view of the matter, the ratio of the decision in case of Amarendera Pratap Singh ( AIR 2004 SC 3782 ) (supra) does not come to help the defendant which lays down the principle that the suit of immovable property based on title is required to be instituted within a period of 12 years calculated from the date when the possession of the defendant became adverse to the plaintiff. In the instant case, the possession of the defendant has not been found, to be in any way adverse to the true owner. So the non-filing of the suit within the period of 12 years cannot lead to extinguishment of the right, title and interest of the true owner by operation of the provision of Section 27 of the Limitation Act. In order to hold the suit to be not maintainable after the expiry of period of 12 years, it has to be established that the possessor's possession was adverse from the very inception or from a particular point of time which as such continued for a period upward of 12 years either from the inception or any other later date as the case may be. The other decision in case of T. Anjanappa and others v. Somallingappa and another (2006 AIR SCW 4368) (supra) also lays down the principle that the possession must be open and hostile enough to be capable of being known by the parties interested in the properties, though it is not necessary that there should be evidence of adverse possession actually informing the real owner of the foremost hostile action. In the case in hand, when the categorical finding stands that the possession was permissive in nature since inception and when it is not been proved by acceptable evidence as to since when it got converted as of adverse exhibiting hostile animus, the principles enunciated in the above cited case do not provide any support to the claim of the defendant. The rest of the decisions cited by the learned counsel for the appellants having been carefully read are found to be clearly distinguishable with the facts and circumstances of the case in hand and the evidence on record. In view of the aforesaid discussion and reasons, all the substantial questions of law stand answered against the appellant and consequently the judgment and decree passed by the Courts below in decreeing the suit of the plaintiff are hereby confirmed. 11. Resultantly, the appeal stands dismissed and in the facts and circumstances no order as to cost is passed. Appeal dismissed.