Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 510 (ORI)

Radhadebi Lath Agrawal v. State of Orissa

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned District Judge, Bargarh in R.F.A. No.10/42 of 2011 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Bargarh in Civil Suit No.111 of 2005. The appellant as the plaintiff has filed the suit for declaration of right, title and interest over the suit land. The suit having been dismissed, she had carried the first appeal which also did not yield any fruitful result for the plaintiff. Therefore, she has moved this Court by filing this appeal under section 100 of the Code of Civil Procedure. 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 arrayed in the court below. 3. Plaintiff’s case is that the suit had been originally purchased by Rameswar Lath Agrawal from one Dani Dash by registered sale deed dated 04.11.1943 and since then Rameswar and his family members remained in possession of the same. It is stated that the plaintiff has been in possession of the suit land after the death of her grand father-in-law. This factum of possession is said to have been noted in the remark column of the record of Major Bandobasth Khata, i.e., major settlement record. So, she also claims to have been in possession of the suit land for more than the statutory period to the knowledge of the defendant-State and thus, asserts to have acquired title by adverse possession. 4. The defendant-State in the written statement assert it to be government land and thus rightly standing recorded as such. It is stated that said Dani Dash had absolutely no right, title and interest of the suit land at any point of time. It is stated that by sale deed of the year 1993 said to have been executed by Dani, no title in respect of the suit land came to be vested upon Rameswar Lath, as Dani had absolutely no alienable right. It is further stated that the suit land is a piece of vacant land and the plaintiff nor her predecessors had ever been in possession of the same and as such they have neither the right, title and interest over it nor acquired the same by adverse possession. It is further stated that the suit land is a piece of vacant land and the plaintiff nor her predecessors had ever been in possession of the same and as such they have neither the right, title and interest over it nor acquired the same by adverse possession. It is further averred that such note of illegal possession is of no legal significance so as to come to the aid of the plaintiff to establish her case. With all these, prayer has been made to non-suit the plaintiff. 5. Faced with the above rival pleadings, the trial court framed five issues. Proceeding to answer issue no.3 which is crucial touching the claim of the plaintiff in so far as the right, title and interest of the suit land is concerned and also the alternative claim of acquisition of the same by adverse possession, upon analysis of evidence and their evaluation, answer has been recorded against the plaintiff holding in clear term that the plaintiff has failed to establish her right, title and interest over the suit land on the basis of the purchase of the same by her grand father-in-law from Dani as claimed. In respect of other issues, answer has finally been rendered that plaintiff has not been able to establish her case of acquisition of title over the same by adverse possession. Thus, the suit stood dismissed. 6. In the appeal filed by the aggrieved plaintiff, the lower appellate court in view of the challenge to the above findings as is seen from the judgment has rightly proceeded to examine the sustainability of the findings of the trial court ultimately leading to the dismissal of the suit. An independent exercise of examination of evidence on record being taken up, at the end the lower appellate court has not been able to arrive at a decision contrary to one recorded by the trial court. Therefore, the judgment and decree passed by the trial court have received the seal of approval from all angles. 7. An independent exercise of examination of evidence on record being taken up, at the end the lower appellate court has not been able to arrive at a decision contrary to one recorded by the trial court. Therefore, the judgment and decree passed by the trial court have received the seal of approval from all angles. 7. Learned counsel for the appellant submits that Rameswar having purchased the suit land from Dani in the year 1943 by a registered sale deed and when the overwhelming evidence stand that he was in possession of the same all through during his lifetime whereafter the plaintiff has been in possession, the courts below have erred in law by negating the claim of the plaintiff that she has the right, title, interest and possession over the suit land. It is next contended that accepting for a moment that the land belong to the State in view of the evidence let in by the plaintiff in support of her possession over the suit land to be open, peaceful and continuous for upward of the prescribed period exercising all the rights of ownership and claiming the same unto himself denying the title of the true owner exhibiting hostile animus to the knowledge of the true owner, the court below ought not have been hesitant in recording the finding that the plaintiff has acquired right, title and interest over the suit land by way of adverse possession. These, according to him, are the substantial questions of law which surface in this appeal for their certification for the purpose of admission. 8. Learned counsel for the State submits in support of the findings of the courts below in further contending that such concurrent findings being purely of fact, there remains no scope of interference with the same. He lastly contends that no such substantial question of law arises in this case. 9. The specific case of the plaintiff is that Rameswar had purchased the suit land from one Dani by registered sale deed dated 04.11.1943 and accordingly Rameswar had title over the same. It is also her case that Rameswar began to possess the suit land as its owner having purchased the same from Dani and then it is stated that ultimately it came to the hands of the plaintiff who is now in possession. It is also her case that Rameswar began to possess the suit land as its owner having purchased the same from Dani and then it is stated that ultimately it came to the hands of the plaintiff who is now in possession. On going through the judgments of the courts below, it is however seen that except one certified copy of the registered sale deed dated 04.01.1943, no such documentary evidence has been tendered from the side of the plaintiff to show that Dani had the title over the suit land and as such had the right to alienate the same. In the absence of the same, the registered sale deed cannot stand as the document in support of the claim of title over the suit land to be resting with Rameswar. So, the vendor’s title having not been established the sale deed (Ext.1) cannot by, itself, create the right, title and interest in favour of Rameswar, the vendee. Thus, the main plank as per above discussion falls flat. 10. Next comes the case of the plaintiff as laid in the alternative as regards acquisition of title over the suit land by adverse possession. It is the settled law that the person who claims title over the piece of immovable property by adverse possession has to specifically plead and prove that he has been in open, peace and continuous possession of the suit land for upward of the prescribed period as its owner exercising such right thereon in denial of the title of the true owner and claiming the same unto himself to the knowledge of the true owner exhibiting hostile animus. If we take the case of the plaintiff as laid in the pleading, itself, it is clear that the base is that the title came to the hands of Rameswar by the registered sale deed from Dani who was having title over it. There arises no scope on the part of the plaintiff or her predecessor-in-interest in having even the knowledge that the suit land belong to the State. If that is not there, the question of denying the title of true owner does never arise. There arises no scope on the part of the plaintiff or her predecessor-in-interest in having even the knowledge that the suit land belong to the State. If that is not there, the question of denying the title of true owner does never arise. A person merely possessing the land for any length of time whatever it may be without knowing as to who is the owner of the said land and thereby without being not in a position to deny the title of the true owner and exhibit hostile animus to the knowledge of the true owner claiming title over the land unto himself, the claim of acquisition of title by way of adverse possession makes no sense and bites dust. In the instant case, therefore, this Court finds that the ultimate decision rendered by the trial court as confirmed by the lower appellate court do not at all have any legal flaw. In that view of the matter, the submission of the learned counsel for the appellant is not accepted. The appeal thus does not merit admission. 10. In the result, the appeal stands dismissed. No order as to cost.