Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 407 (ORI)

Gagan Bihari Pradhan v. State of Orissa

2016-05-20

D.DASH

body2016
JUDGMENT : The appellant in this appeal has called in question the judgment and decree passed by the learned District Judge, Khurda at Bhubaneswar in R.F.A. No. 30 of 2013, an appeal under section 96 of the Code of Civil Procedure, by which there has been remand of the suit i.e., T.S. No. 130 of 2000 to the trial court i.e. the Court of Civil Judge (Sr. Division), Bhubaneswar for fresh disposal in recording findings on all the issues afresh in accordance with law. The appellant having filed the suit , the same had been dismissed and on an appeal being filed by the unsuccessful plaintiff, the judgment and decree as impugned in this appeal have been passed. Therefore, now the present appeal under section 100 of the Code has come before this Court. 2. For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as assigned in the trial court. 3. The plaintiff’s case is that his late father namely, Biswanath Pradhan was a settled Raiyat of Laxmisagar village. The suit land better described in the schedule of the plaint belonging to the defendant when was laying vacant, it was long back when he cleared the bushes standing grown over it and shortly thereafter he put up a thatched house on its north-west corner. It is said to be in the year 1952. Over the rest area since then, he grew seasonal crops. There arose a dispute amongst the family members of Biswanath and it was amicably resolved by division of the properties of Biswanath and in his possession. The suit property is said to have fallen in the share of the plaintiff being one of the sons of Biswanath. The plaintiff asserts thus to have been in exclusive possession of the suit land since the year 1967. The possession is said to be open, peaceful, continuous and without any interruption from any quarter at any point of time as its owner asserting hostile animus. It is also said that Biswanath being in possession since the year 1952 and later on the possession having exclusively flown to the hands of the plaintiff, the continuity of possession has to be treated to be from the year 1952 all through by tacking. It is also said that Biswanath being in possession since the year 1952 and later on the possession having exclusively flown to the hands of the plaintiff, the continuity of possession has to be treated to be from the year 1952 all through by tacking. It is further averred that he constructed two asbestos roofed house over the suit land and also to have dug a well at one place. Thus the plaintiff being in possession as above exhibiting all the elements for upward of the period of thirty years claims to have acquired title by adverse possession over the said suit land. The plaintiff being in peaceful possession of the suit land as its owner, on 05.02.2000, it is alleged that the officials of the defendant–State gave threat of his dispossession from the suit land despite the note of possession being there in the not final record of right. In view of above, the plaintiff had to seek redress in the Civil Court by filing a suit with due leave under section 80(2) of the Code and upon the same being granted. The prayer in the suit is for declaration of plaintiff’s right, title, interest and confirmation of possession. It is also prayed that in case of plaintiff’s dispossession during the suit, a decree for recovery of possession of the suit land be passed. 4. The defendant-State contested the suit by filing written statement. Besides advancing the pleas of non-maintainability, being legally barred for non-compliance of provision of section 80 of the Code and its being undervalued, the assertion is made that the defendant is the lawful owner of the suit land and accordingly it so stands recorded in its name. The plaint averments as regards the possession of the suit land initially in the hands of Biswanath and then exclusively resting with plaintiff and that they possessed it openly, peacefully, continuously as its owner exhibiting hostile animus are denied. The claim of the plaintiff that he has acquired title over the suit land by adverse possession and thus his entitlement to the reliefs as prayed for are thus resisted. 5. On above rival pleadings, the trial court framed eight issues. Practically, the fate of the suit hinges upon the decision on issue number five which concerns with the claim of title over the suit land to have already rested upon the plaintiff. 5. On above rival pleadings, the trial court framed eight issues. Practically, the fate of the suit hinges upon the decision on issue number five which concerns with the claim of title over the suit land to have already rested upon the plaintiff. However, trial court along with that issue sat over to decide also the other issue as regards the prayer of confirmation of possession over the suit land. On appraisal of evidence let in by the plaintiff, the answer has been given in the negative that he has not got the title over the suit land, having failed to prove the same. Thus the reliefs have been declined. 6. The lower appellate court being moved by the unsuccessful plaintiff has taken a view that as because the defendant has raised the question that the description of the suit land is not specific, the court below ought to have framed an issue as to if the suit is defective for non-compliance of the provisions of Order - 7 Rule -3 of the Code and that according to it is an important issue and after deciding said issue, the other issue no. 5 and 6 as decided together ought to have been done. It has also said that the trial court while deciding issue no. 5 and 6 has also omitted to consider and appreciate the oral evidence and therefore, the final decision rendered on those issues have been held to be incorrect. With the aforesaid, the lower appellate court has however made an open remand of the suit to the trial court for fresh disposal answering all those issues afresh upon due appreciation of evidence on record. 7. Learned counsel for the appellant submits that the lower appellate court’s view that the trial court has failed to frame an issue as regards the description of the suit land if is in conformity with the provisions of Order -7 Rule 3 of the Code is wholly erroneous. According to her, simply because the defendant raises such a plea to defeat the suit even without providing proper foundation, there arises no reason to go ahead with framing an issue on that score when the said plea can be ascertained on the face of rival pleading as vague and baseless. According to her, simply because the defendant raises such a plea to defeat the suit even without providing proper foundation, there arises no reason to go ahead with framing an issue on that score when the said plea can be ascertained on the face of rival pleading as vague and baseless. It is next contended that the lower appellate court having all the power of reappraisal of evidence both oral and documentary ought not to have remanded the suit to the trial court when the legal provision is very stringent that remand of suit is to be avoided and the appellate court in conformity with the power vested with it, first of all should make all the endeavour to rectify the mistake of procedure and do what have been omitted by the trial court in finally rendering the decision in the suit either way. Further placing the oral as well as the documentary evidence let in by the plaintiff it is strenuously argued that the evidence being overwhelming and having practically gone unshaken and as there arises no justification to discard the same, the plaintiff’s case as laid in the plaint can very well be said to have been proved and thus established with respect to all the elements as per law. She also contends that this Court although is in seisin of the second appeal has the power under section 103 of the Code to do so and render the decision. Thus, she contends that this Court resorting to the said course as per law may decree the suit recording finding on the important issue in favour of the plaintiff in avoiding unnecessary remand and further delay in disposal of the dispute. Learned Additional Govt. Advocate argues in support of the judgment of the lower appellate court. Further, he resists the contention of the learned counsel for the appellant that, this Court should to take up the exercise of the reappraisal of evidence in finding out the answers to the crucial issue on title. It is also his contention that even on reappraisal of the evidence as placed, the plaintiff’s case cannot be said to have been proved and the suit is to entail with dismissal. 8. It is also his contention that even on reappraisal of the evidence as placed, the plaintiff’s case cannot be said to have been proved and the suit is to entail with dismissal. 8. In view of above rival submissions, the substantial questions of law which stand for being answered are as under:- (i) Whether the lower appellate court has erred in law by holding that the trial court was under legal obligation to frame the issue that the suit if hit under the provisions of Order -7 Rule 3 of the Code? (ii) Whether the order of remand as passed and impugned in the appeal is erroneous and the lower appellate court ought to have decided the core issue on which parties have led evidence and when the same had been answered by the trial court for which this Court is called upon to do so by taking up the exercise of reappraisal of entire evidence in order to decide the fate of the suit? 9. At the outset, let’s examine if the view of the lower appellate court as regards the framing of an issue in holding that the said plea taken by the defendant firmly stands in giving a fatal blow to the suit is at all sustainable in the eye of law or not. The plaint provides the description of the suit land that its from out of the land under sabik Khata no. 258, plot no. 258 corresponding to Hal Khata No. 274, plot no. 274 measuring 155 feet X 97’. This description is attacked as unspecific. However, just on perusal of Ext. 7 series, the defence on that score is found to be wholly untenable. These documents are in relation to a proceeding under the provisions of OPP (EUO) Act, 1972. There remains a detail map attached to it as per scale prepared by the Revenue Inspector. Furthermore, the plaint being amended, the boundary of the suit land has been indicated which is found to have not been specifically denied by filing any additional written statement. The evidence being tendered by the defendants through the lips of D.W. 1, he has not even whispered anything on the score of unspecific description of the suit land in support of the dependant’s plea. The evidence being tendered by the defendants through the lips of D.W. 1, he has not even whispered anything on the score of unspecific description of the suit land in support of the dependant’s plea. Next also the plaintiff himself being examined as P.W. 1 either during his examination at the first instance or during his examination on recall has been confronted with it and even no such suggestion has been given on that score. Thus, it is clear that said plea about non-specification of suit land has not at all been pressed into service during trial save and except being taken as a plea in the written statement and that having been given a total good-bye in the suit as a ground to non-suit the plaintiff, the lower appellate court has fallen in grave error even on fact to say that it was so required to be specifically answered by the trial court by framing an issue. The parties being not at all in controversy on that point, there arises no need and justification for framing an issue on that much less to say that it is also to be answered first. For the aforesaid, the lower appellate court’s view on framing that as an issue and recording an answer to it does not stand to reason and judicial scrutiny and is thus unsustainable. Consequently that as one of the grounds for remand does not hold water. 10. Next coming to the point of non-consideration of oral evidence on record, of course a bare perusal of the judgment of the trial court it is seen that though it has quoted the evidence of six witnesses from his side in tendering evidence in support of his case, no discussion of the same has been done by the trial court. The course adopted by the trial court is faulty and in that regard there has been a failure on the part of the trial court to perform the duty and act according to law as held by the lower appellate court thus merits acceptance. The course adopted by the trial court is faulty and in that regard there has been a failure on the part of the trial court to perform the duty and act according to law as held by the lower appellate court thus merits acceptance. In that view of the matter, this Court finds no disagreement with said conclusion of the lower appellate court in holding that the answer of the trial court on vital issue of title cannot as such sustain and is thus required to be given a relook more particularly when the foundation of the case of the plaintiff being the acquisition of title over the suit land as also ultimately the claim, the oral evidence let in cannot just be kept aside saying those to be wholly insignificant when those are of definite importance standing to be scrutinized and considered for acceptance if so found after examination from all angles in holding as to if the case of plaintiff has been proved by preponderance of probability or not. 11. Now, therefore, the question comes as to if on this point alone, it stands as a case of remand of the suit to the trial court as passed by the impugned order. The answer in my considered view is in the negative. It’s clearly provided in Order 41 Rule 24 of the Code, that the first appellate court is duty bound to take up said exercise at its level in answering the issues in order to decide the fate of the suit. In that view of the matter, the determination of said issue is necessary for the disposal of the appeal, when evidence on record is sufficient and the lower appellate court has failed in its duty to so determine even on the face of extensive evidence. Thus, this Court accepts the submission of the learned counsel for the appellant and accordingly holding the judgment and order passed by the lower appellate court as vulnerable, feels it proper to proceed further. 12. The position of law is well settled that the burden of proof in case of a claim of acquisition of title by adverse possession rests upon the claimant and he is to discharge the same by proving his possession fulfilling all the ingredients as required under law. The possession must be nec-vi, nec-calm and nec-precario. 12. The position of law is well settled that the burden of proof in case of a claim of acquisition of title by adverse possession rests upon the claimant and he is to discharge the same by proving his possession fulfilling all the ingredients as required under law. The possession must be nec-vi, nec-calm and nec-precario. It must be shown to be open, peaceful and continuous exhibiting hostile animus claiming title unto himself in denial of the title of the true owner and to the knowledge of the true owner. It begins with wrong and matures in right. In view of that, the right, title and interest of the true owner gets extinguished for his inaction and negligence for not taking timely step against the wrongdoer who by the same comes to alter his position as the rightful owner vis-à-vis the suit land. 13. For the aforesaid, now keeping in mind the above settled position, the evidence need examination in the backdrop of the pleadings so as to conclude as to if the plaintiff is entitled to the reliefs as claimed or is to be non-suited. 14. Over and above, the pleadings in the plaint, the plaintiff in order to provide support to those has in total examined six witnesses and proved documents admitted in evidence and marked as Ext. 1 to 7. When it is said that the suit land was first possessed by his father in the year 1952, P.W. 2 to 6 being the independent witness of the locality have been examined on behalf of the plaintiff. That P.W. 2 in para -3 of his deposition having stated on oath about Biswanath possessing the suit land since the year 1952 when it was vacant on a corner, constructing a thatched house and growing crops and after him it to have flown to the hands of the plaintiff, there is practically no cross-examination from the side of the defendant and what have been brought out is his ignorance of Khata number and plot number of suit land which is of no significance to discard his testimony. For an outsider to tell the Khata number and plot number of adjoining land owner even is not expected and it is not even remembered by owners of land as is commonly noticed. The witness is aged about 75 years of age in the year 2010. For an outsider to tell the Khata number and plot number of adjoining land owner even is not expected and it is not even remembered by owners of land as is commonly noticed. The witness is aged about 75 years of age in the year 2010. Computing there from, roughly his age in the year 1952 comes around 17 years and he being a co-villager, said knowledge about possession cannot be said to have been falsely deposed simply when he says to have no land adjoining. To shake the credibility of the witness or to doubt his testimony on material aspect, nothing has been elicited or shown. The other witnesses P.W. 3 and 4 are the joint tenants of the plaintiff who have deposed to have remained as tenants in one room. Their evidence is of course not much of help to the plaintiff. But the evidence of P.W. 4 requires careful examination to ascertain as to how for the plaintiff derives support from it in so far as his case is concerned. His evidence is that he is the adjoining land holder. He is also the Secretary of a welfare society of that area and it has also a house on one portion of the land under plot No. 74. The plaintiff (P.W. 1) has deposed about possession from the time of his father. The defendant admits the present possession of the plaintiff. Thus, it is found that since 1952, the suit land is in possession of plaintiff’s father and thereafter with the plaintiff. In the case, the possession being stated to have commenced about 48 years back when the plaintiff was not even born, the fact that plaintiff has not proved the exact date of entry over the suit land by his father is of no such significance and the same cannot stand in the way of plaintiff’s case so as to be kicked out. The trial court has thus unnecessarily given much importance to it without keeping the ground reality in mind that for long lapse of time that should not be so much insisted upon. That is no doubt required to compute the period, but when it is a case of long possession, evidence on that score is in fact not expected as not available. This has been recognized by defendants in Ext. 1 at one stage of the settlement operation upon enquiry. That is no doubt required to compute the period, but when it is a case of long possession, evidence on that score is in fact not expected as not available. This has been recognized by defendants in Ext. 1 at one stage of the settlement operation upon enquiry. Thus, here is a case where long possession through oral evidence stands established. The aggressive nature of possession constituting invasion of title is also proved that the plaintiff has constructed an asbestos roofed house and before that there was a thatched house over the same from the time of his father. The above evidence as accepted establish the case of the plaintiff fulfilling the required ingredients as per law. The long possession with its nature being viewed with its manner as well as the location of the land gives rise to a case of possession with hostile animus and knowledge of the defendant as regards the same has to be presumed. However, it has been laid down in case of Gurdwara Sahib Vrs. Gram Panchayat village Sirthala; (2014) 1 SCC 669 that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership and only if proceedings are filed against the plaintiff and he is arrayed as defendant that it can use his adverse possession as shield / defence. Therefore, the present suit by the plaintiff as laid seeking the declaration of title over the suit land on that score is not allowable. But here in view of the finding, it is made clear that in case, the defendants file suit or proceed for eviction of the plaintiff in any proceeding, it would be open to the plaintiff to plead in defence that he has become the owner of the property by adverse possession. Needless to mention at this stage, the plaintiff shall also be at liberty to plead that finding rendered on that score in this suit that he is in adverse possession would stand to operate as resjudicata and thus would come to his resque. 15. Subject to above clarification, the plaintiff is non-suited and the appeal stands disposed of accordingly. No order as to cost.