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2016 DIGILAW 640 (ORI)

Bana Kishore Mahakud v. Kanhu Charan Das

2016-08-12

D.DASH

body2016
JUDGMENT : The above noted second appeal arises out of a common judgment followed by decrees passed by the learned Additional District Judge, Bhadrak in R.F.A. No. 307 of 2014 and 51 of 2008. The appellant as the plaintiff had filed the Civil Suit No. 01 of 2005 in the court of Civil Judge (Jr. Division), Basudevpur against the respondent arraigning him as one of the defendants. This was a suit for declaration of right, title and interest over the land in dispute on the basis of adverse possession with further prayer for confirmation of possession and injunction. The respondent no. 1 as the plaintiff filed C.S. No. 70 of 2005. In the said suit he prayed for decree for eviction of the appellant arraigning him as the defendant therein and claiming damages etc. Both the suits have been heard analogously by the trial court. Finally the suit i.e., C.S. No. 01 of 2005 filed by the present appellant as the plaintiff stood dismissed and the other suit i.e., C.S. No. 70 of 2005 stood allowed directing the appellant who was defendant therein to vacate the suit land within three months and to pay compensation of Rs.20 per diem w.e.f. 01.07.2005 till actual vacation. The appellant being aggrieved by the above results of the suits, carried two first appeals which stood numbered as R.F.A. No. 305/50 of 2014/2008 arising from C.S. No. 70 of 2005 and R.F.A. No. 307/51 of 2014/2008 arising out of C.S. No. 01 of 2005. Both the appeals have been dismissed. Therefore, now this second appeal bearing R.S.A. No. 36 of 2016 arising out of R.F.A. No. 307/51 of 2014/2008 as also another R.S.A. No. 68 of 2016 arising out of R.F.A. No. 305/50 of 2014/2008 have been filed. 2. Essential facts are as under:- The suit land stood recorded in the name of one Sakhi Bewa of village Basudevpur as per the settlement record of the year 1930 and it’s extent was Ac. 0.09 decimals. Sakhi alienated the same in favour of one Ram Prasad Das. The suit land at the time was of Patita variety. Neither Sakhi nor Rama Prasad were in actual physical possession and the land was lying vacant. 0.09 decimals. Sakhi alienated the same in favour of one Ram Prasad Das. The suit land at the time was of Patita variety. Neither Sakhi nor Rama Prasad were in actual physical possession and the land was lying vacant. In the year 1962, the plaintiff filled up earth over it and used it as threshing floor covering a portion, having kitchen garden and running tea stall for some days and on another portion he was also carrying out firewood business. 3. The case of the plaintiffs is that he has been in possession of the suit land from the year 1962 without any interruption from any quarter and to the knowledge of the defendant and all others. Thus he claims to have perfected title over the suit land by adverse possession. It is stated that in the major settlement record of right, the name of the defendants and his co-sharers have been wrongly recorded, though they have never possessed the suit land and taking advantage of the same, they were trying to dispossess the plaintiff. Respondent no.1-defendant no. 1’s case is that his ancestor got the suit land on lease on 02.05.1932 and after the said lease; they had reclaimed the land and continued to be in cultivating possession of the same. The suit land has been rightly recorded in their name in the Major Settlement operation. The defendant has further stated that as per amicable settlement with his co-sharers, he is in exclusive possession of the suit land by developing it and the plaintiff has no right over it. 4. The trial court going to hear the suits analogously although has framed eight issues, out of those, the issues no. 3 and 4 are important, since those concern with the claim of the appellant-plaintiff over the suit land as regards perfection of right, title and interest by adverse possession and the reliefs as prayed for therein. Both the courts below have concurrently found that the plaintiff has failed to establish his claim of right, title and interest over the suit land as to have been so acquired by adverse possession. 5. Both the courts below have concurrently found that the plaintiff has failed to establish his claim of right, title and interest over the suit land as to have been so acquired by adverse possession. 5. Learned counsel for the appellant submits that the followings are the substantial questions of law which arises in this case:- (a) Whether the long uninterrupted possession of the plaintiff over the suit land has clothed him with the right, title and interest in respect to same and adversely to all including the defendants? (b) Whether the courts below are right in dismissing the unimpeachable evidence of long uninterrupted possession let in by the plaintiff merely on the ground that the independent witnesses examined are not neighbours? 6. Learned counsel for the respondents entering appearance contends that such a suit is not at all maintainable and the plea of acquisition of title over the immovable property by adverse possession extinguishing of the title of the true owner for his inaction as per law laid down in case of Gurdwara Sahib Vrs. Gram Panchayat Village Sirthala and Another; 2014(1) SCC 669 and Tribubhan Shankar Vrs. Ambrutlal; 2013(2) CLR (SC) 1134 is untenable. According to him, such a plea can only be taken as defence as a shield but not as sword and only when the rightful owner after prescribed period comes to drive out the possessor and get vacant possession, the possessor can stand up to defend the case on the basis of his adverse possession. 7. It is the case of the plaintiff that Sakhi Bewa was the owner of the suit land and she had sold the same to Ram Prasad. However, in the Major Settlement, the land was erroneously recorded in the name of defendants and his other co-sharers. He says that this defendant has got nothing to do with the suit lands. From this, it is not understood as to how he has filed the present suit for declaration of right, title and interest without impleading the legal heirs of Ram Prasad or those of said Sakhi Bewa as parties. Moreover when he does not admit the defendant to be having the title over the suit land at any anterior point of time, his claim of acquisition of title over the suit land as laid is squarely untenable being without any foundation. Moreover when he does not admit the defendant to be having the title over the suit land at any anterior point of time, his claim of acquisition of title over the suit land as laid is squarely untenable being without any foundation. Interestingly enough, one Nityananda Das had filed another suit i.e., C.S. No. 23 of 2008 for declaration of title over the suit land. This plaintiff in the said suit being the defendant, in his written statement had admitted the claim of that Nityananda having further stated to be having no objection to the declaration on that score. These documents have been filed before this Court in Misc. Case No. 267 of 2016 and the factual aspects concerning those having not been denied, those are clearly seen to be running against the claim of the plaintiff and rather exposes the falsity the same. Thus, it is found that there remains no legal foundation for the case of the plaintiff as projected. In view of the aforesaid, the submission of the learned counsel for the appellant that there arises the substantial questions of law in this case so as to be certified for admission of the appeal cannot be countenanced to. Thus, the appeal does not merit admission. 12. Resultantly, the appeal stands dismissed. No order as to cost.