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2016 DIGILAW 277 (ORI)

Kanaka Sahoo v. Lilabati Sahoo

2016-04-08

D.DASH

body2016
JUDGMENT : 1. This appeal has been directed against the judgment passed by the learned Addl. District Judge, Khurda in RFA Nos. 24 of 2006 and 4 of 2007 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Khurda in T.S. No. 25 of 2001. The appellant was the plaintiff in the trial court and also the appellant in RFA No.24 of 2006. The original defendant no.1 having died during the suit, her daughter has come to be substituted in her place and she with her father defendant no. 2 contested the suit by filing written statement as also by filing a counter claim. The plaintiff’s suit has been decreed in part and the counter claim of defendant no.2 has been allowed. So when the plaintiff being refused with all the reliefs that she prayed for had filed an appeal under Section 96 of the Code of Civil Procedure, the defendant no. 2 being aggrieved by the part decree standing in favour of the plaintiff had also filed the appeal which has been dismissed and as against that he has not preferred any second appeal as submitted. So now in this appeal, the appellant prays for decreeing her suit in entirety granting all the reliefs claimed therein and for dismissal of the counter claim by setting aside the decree passed therein in favour of the defendant no.2. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that the suit land originally belonged to Hata Sahoo who is the father of the plaintiff and original defendant no. 1. It is stated that Hata died in the year 1994 leaving the plaintiff and defendant no. 1 as his legal heirs and successors. During the lifetime of Hata, there had arisen dissention between the plaintiff and defendant no. 1 and that had led Hata to make an amicable settlement by way of separation of the homestead plots of land which he was having as by then both the daughters of Hata having been married were residing in that village Gurujanga. During the lifetime of Hata, there had arisen dissention between the plaintiff and defendant no. 1 and that had led Hata to make an amicable settlement by way of separation of the homestead plots of land which he was having as by then both the daughters of Hata having been married were residing in that village Gurujanga. It is stated that the land under Plot No. 986 corresponding to khata No. 448 measuring Ac.0.070 decimals was allotted to the plaintiff and similarly, the land under Plot No. 987 under Khata No. 249 measuring Ac.0.067 decimals was allotted to defendant no.1. Those two plots of land were having separate holding Nos. 37 and 38. It is further stated that as per said amicable separation, the plaintiff and defendant no. 1 with their family resided in the houses over those lands. It is alleged that after the death of Hata, the defendants with an intention to grab the entire land of Hata has created some documents in the year 1994 and on the basis of that applied before the Tahasildar for mutation of the land covered under the documents. The prayer for mutation was of course rejected. However, being armed with such documents since defendant no. 2 went on creating disturbance in possession of the land by the plaintiff, ultimately the suit for partition of the properties of Hata in two equal halves had to be filed. 4. The defendants contested the suit. In their written statement, they denied the allotment of the land under Plot No. 986 measuring Ac.0.070 decimals in favour of the plaintiff and the land under plot No. 987 in favaour of defendant no.1. The factum of amicable separation at the behest of Hata in order to settle the dispute between the plaintiff and defendant no. 1 is denied. It is their specific case that Hata had purchased the land under Plot No. 987 measuring Ac.0.067 decimals from one Banamali Sahoo by registered sale deed dated 8.6.1961 and while he was in possession of the same, he had gifted it to his son-in-law, the defendant no. 2 who was residing with his family with Hata and was looking after him taking all his care and maintaining him. It is next stated that since the execution of deed of gift, the defendant no. 2 who was residing with his family with Hata and was looking after him taking all his care and maintaining him. It is next stated that since the execution of deed of gift, the defendant no. 2 having accepted the gift has been in possession of the land covered under the same as the donee. He claims to have been residing there in the house constructed over the said land. It is further stated that the land under Plot No. 986 measuring Ac.0.070 decimals was sold by Hata to one Manika Dei long back in the year 1961 by registered sale deed dated 7.6.1961. Manika Dei was in possession of the same. After death of Manika, her legal heirs and successors have sold the land under said plot i.e. Plot No. 986 corresponding to Sabik Plot Nos. 1251 and 1251/2478 to the defendant no. 2 for valuable consideration and they having delivered possession of the said land to defendant no. 2, he claims to be continuing as such over that plot of land. Thus, defendants deny the right of the plaintiff over the said plot of land. It is stated that the plaintiff was aware of all those facts. However, when the defendant no. 2 applied for mutation, the plaintiff came up to object, as by then the defendant no. 2 had provided the plaintiff and her family, the shelter in the house standing over plot No. 986 on their return from distant place. The prayer for mutation was thus disallowed. Thereafter when the defendant no. 2 wanted to evict the plaintiff, the village gentries intervened and requested the defendant no. 2 to allow the plaintiff to occupy the suit house for further two years on payment of monthly rent of Rs.200/-which was finally agreed upon. But thereafter the plaintiff did not take any such step in finding out an alternative accommodation. So the defendant no. 2 asked for vacation. Thus in order to thwart that move of the defendant no.2 or to put a break, the plaintiff is said to have filed the present suit. With these pleadings, the defendant no. 2’s prayer in the counter-claim stands to declare him as the rightful owner of the land under Plot No. 986 and grant the reliefs of eviction of the plaintiff therefrom. 5. With these pleadings, the defendant no. 2’s prayer in the counter-claim stands to declare him as the rightful owner of the land under Plot No. 986 and grant the reliefs of eviction of the plaintiff therefrom. 5. The plaintiff in the written statement to the said counterclaim denied the factum of said gift in favour of defendant no. 2 as also his later purchase from Manika Dei and thus opposed to the grant of the prayer of the defendant no. 2 as advanced in the counter-claim. 6. The trial court in view of such rival pleadings framed nine issues. Going to take up issue nos. 6 and 7 which concern with the purchase of the portion of the suit land by defendant no. 2 from Manika as also getting a part by gift deed dated 26.8.94 and his right, title and interest over the land as also the right to recover possession, upon examination of evidence, the trial court while holding the so called gift deed in favour of defendant no. 2 to be invalid, has upheld the purchase of the land under Plot No. 986 by the defendant no.2 from Manika to be valid and genuine. These findings have practically led the trial court to decree the suit also the counter claim in part. It would be better at this point before making further progress to place the ordering part of the trial court’s judgment which run as under:- “Order The plaintiff’s suit and the counter claim of the defendant No.2 be and the same are decreed preliminarily in part on contest against each others. a. the right, title and interest of the defendant No.2 over suit plot No. 986 is hereby declared; b. the defendant No.2 is entitled to recovery of possession of the suit plot No. 986 from the plaintiff; c. the plaintiff is directed to deliver vacant possession of the house and bari situated over suit plot No. 986 to the defendant No.2 within three months hence, failing which the defendant No.2 is at liberty to recover possession of the same from the plaintiff through the process of law. d. the suit plot No. 987 is liable for partition by metes and bounds in between the plaintiff and defendant No.2 and both of them are entitled to get 50% share each in the suit plot No. 987. d. the suit plot No. 987 is liable for partition by metes and bounds in between the plaintiff and defendant No.2 and both of them are entitled to get 50% share each in the suit plot No. 987. Both the plaintiff and defendant No.2 are directed to effect a partition of suit plot No. 987 by metes and bounds between them within a period of three months hence, failing which either party is at liberty to effect partition of the same through the process of law. e. the plaintiff is permanently injuncted from interfering with the possession of the defendant No.2 in respect of suit plot No. 986. In the circumstances, both the parties are to bear their own cost of litigation.” 7. The lower appellate court while disposing both the appeals filed by the plaintiff as well as the defendants upon examination of evidence has first of all held that the plaintiff has no right to claim partition of the land under Plot No. 986 as that is the purchased land of defendant no. 2 from the legal heirs and successors of Manika who had purchased the same from Hata. The next finding is that the defendant no. 2 has not acquired any right, title and interest over the land under Plot No. 987 by virtue of the so-called deed of gift. Thus, at the end, the lower appellate court’s order stands as under:- “xx xx xx The finding of the learned trial Court, in respect of suit plot No. 986 is hereby confirmed. The right, title and interest of the defendant-respondent No.2, in respect of the said plot is hereby declared and the plaintiff-appellant is directed to deliver vacant possession of the said plot with the house standing thereon to defendant-respondent No.2, within three months from the date of this Judgment, failing which the defendant-respondent No.2, is at liberty to take possession of the suit plot No. 986, through the process of the court. The finding of the learned trial court, in respect of suit plot No. 987 is confirmed with modification that instead of defendant-respondent No.2, the defendant-respondent No. 1 and the plaintiff-appellant are entitled to 50% share each. Both of them are directed to effect partition of the plot No. 987 amicably and to produce the allotment sheet before the learned trial court for making the decree final. Both of them are directed to effect partition of the plot No. 987 amicably and to produce the allotment sheet before the learned trial court for making the decree final. In the event of failure, either party may apply to the learned trial court for partition through the process of the Court.” 8. Learned counsel for the appellant contends that the courts below having not framed any issue in deciding the plea of adverse possession of acquisition of right, title and interest over the land under plot No. 986 by the plaintiff when there remains no evidence regarding the permission said to have been granted by defendant no.2 to the plaintiff for such occupation have committed grave error and thus the ultimate finding and the order recorded in so far as the land under plot No. 986 is concerned, is wholly and unsustainable. According to him, it is a fit case for remand of the suit to the court below for a decision afresh. 9. Learned counsel for the respondents entering appearance submits that the courts below although in so many words have not framed that as an issue yet have clearly decided the title of defendant no. 2 to be subsisting in respect of the land under Plot No. 986 and thus to be resting upon him in further holding that the plaintiff has no title over the same and also the right the possess. He further contends that the plaintiff having failed to lead any satisfactory evidence in fulfilling all the ingredients for the purpose of acquisition of title over the plot No. 986 by adverse possession, non-tendering of any evidence regarding the permission by defendant no. 2 and allowing the plaintiff to occupy cannot lead to a finding of extinguishment of the right, title and interest of the defendant no.2 over the said property which he has validly purchased in the year 1974. 10. In the instant case, the finding remains that the defendant no. 2 has purchased the land under plot No. 986 from the legal heirs and successors of Manika by registered sale deed dated 23.9.1974 and that Manika had originally purchased the said land from the original owner Hata by registered sale deed dated 7.6.1961. Thus, the defendant no. 10. In the instant case, the finding remains that the defendant no. 2 has purchased the land under plot No. 986 from the legal heirs and successors of Manika by registered sale deed dated 23.9.1974 and that Manika had originally purchased the said land from the original owner Hata by registered sale deed dated 7.6.1961. Thus, the defendant no. 2’s antecedent title over the property in question having been proved, the ball now moves to the coat of the plaintiff that she has to establish the case of acquisition of title over the said land if so by adverse possession. The law is well settled that in a suit based on title when the defendant advances the plea of having acquired the title over the immovable property by adverse possession, the burden of proof lies on the said possessor to establish by leading clear, cogent and acceptable evidence that he possessed the suit land openly, peacefully and continuously for upward of the period prescribed in law exhibiting hostile animus all through by denying the title of the true owner and claiming the same unto himself in exercising all such rights as its owner over the said property. Mere possession for any length of time without carrying the above baggage containing all those ingredients is of no avail for establishment of a case of acquisition of title by adverse possession. It is also the settled law that the period for the purpose of acquisition of title by adverse possession commences from the date when the possession over the immovable property starts running as adverse. In the instant case, the very fundamental feature for acquisition of title over the land under Plot no. 986 by the plaintiff by adverse possession lacks for the simple reason that when she claims the land to be still belonging to her father, it has been well established that it belongs to defendant no.2 and he has been the owner of the same since the time of his purchase i.e. on 23.9.1974. So the plaintiff in order to succeed in establishing such a claim is not specifically coming up with the case of her possession denying the title of defendant no. 2. So her prior possession and its continuance even if accepted does not stand as adverse to defendant no. 2 and that possession lands her nowhere. So the plaintiff in order to succeed in establishing such a claim is not specifically coming up with the case of her possession denying the title of defendant no. 2. So her prior possession and its continuance even if accepted does not stand as adverse to defendant no. 2 and that possession lands her nowhere. The earlier possession being permissible as asserted by her its nature is also to be presumed to be continuing as such when there remains no evidence on record being let in by the plaintiff that it got converted to adverse at any point of time against defendant no. 2 and that his right, title and interest over it stood denied. Therefore, in my considered opinion, the said plea has even no foundation in the eye of law for the super structure to stand upon it. 11. For the aforesaid discussion and reasons, the submission of the learned counsel for the appellant that there arises the substantial question of law so as to be certified for its admission stands repelled. The appeal thus does not merit admission. 12. Resultantly, the appeal stands dismissed. However, in the peculiar facts and circumstances, the parties are directed to bear their respective cost of litigation throughout.