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2016 DIGILAW 927 (ORI)

Muralidhara Nayak v. Madhei Prusty

2016-10-07

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. The defendants are the appellants against a reversing judgment. 2. Nakula Prusty, predecessor-in-interest of respondent nos.1 to 6 and respondent no.7 as plaintiffs instituted T.S. No.1 of 1991 in the court of the learned Civil Judge (Sr. Divn.), Kamakhyanagar for declaration of title, confirmation of possession and permanent injunction impleading the appellants as defendants. The case of the plaintiffs is that the Government have settled sabik plot nos.8/897 and 8/899, khata no.2 of Touzi No.1 measuring area Ac.5.66 dec. of mouza-Bhairpur in favour of their father Purna Chandra Prusty. He was in possession of the same and paid rent to the State. The State Government also settled an area Ac.1.30 dec. appertaining to Plot no.18/998, khata no.2 of mouza-Bhairpur in favour of their father. During the current settlement operation, some portions of lands of sabik plot no.8/897 were recorded as plot nos.695, 740 and 816 under Hal Khata No.146 of mouza-Bhairpur. Similarly some portions of lands of sabik plot no.18/898 were recorded as Hal plot nos.826 and 951 under Khata No.146 of mouza-Bhairpur. Though the suit lands were recorded in the name of the plaintiffs in the finally published ROR, the name of the defendants had been reflected in the remarks column. The recording of the note of possession of the defendants in the remarks column of the suit plots is wrong and without any foundation. Being emboldened with the wrong entry, the defendants had tried to dispossess the plaintiffs from the suit lands. Be it noted that during pendency of the appeal in the courts below, the plaintiff no.1 died; whereafter his legal heirs, present respondent nos.1 to 6, were substituted. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that the suit is barred by law of limitation. While not disputing the settlement of the suit lands in favour of the father of the plaintiffs, they denied the correctness of the hal suit plots to the sabik plots. The specific case of the defendants is that Juanganali chaka of mouza-Bhairpur Raita was previously a jungle land and out of that the father of the defendants reclaimed sabik plot no.18/1033 area Ac.0.70 decimals, sabik plot no.18/1024 area Ac.0.94 decimals, sabik plot no.8/1079 area Ac.1.10 decimals prior to 1950. The specific case of the defendants is that Juanganali chaka of mouza-Bhairpur Raita was previously a jungle land and out of that the father of the defendants reclaimed sabik plot no.18/1033 area Ac.0.70 decimals, sabik plot no.18/1024 area Ac.0.94 decimals, sabik plot no.8/1079 area Ac.1.10 decimals prior to 1950. The defendant no.1 got sabik plot no.18/1048 area Ac.0.20 decimals and sabik plot no.18/1049 by lease at about the same period. Later the father of the defendants purchased Ac.0.81 decimals and 2½ kadis of lands from the western side of sabik plot no.8/897 from Nakula Prusty, plaintiff no.1, by registered sale deed on 23.11.54. Thereafter the land was mutated in the name of the father of the defendants and was assigned plot no.8/897/1125. It is further stated that the father of the defendants cleared the jungle in the year 1950 and changed the kisam of the land in the year 1960. Since then the father of the defendants and thereafter the defendants are in possession of the suit lands along with other surrounding lands of Juanganali chaka. The plaintiffs have never possessed the suit lands since the year 1950. The suit lands lost their identity at the spot being merged with the lands of the defendants. In the alternative it is pleaded that the defendants have acquired their title over the same by adverse possession. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. They are:- “(1) Is the suit maintainable according to law and facts on record ? (2) Have the plaintiffs any cause of action as alleged in the plaint ? (3) Are the suit lands as described in schedule of the plaint correspond to R.S. Plot No.8/897 and R.S. Plot No.18/998 ? (4) Have the plaintiffs any right, title and interest over the suit lands ? (5) Have the defendants acquired title over the suit lands by way of adverse possession ? (6) To what other relief or reliefs the plaintiffs are entitled to get in law and equity ?” 5. To substantiate the case, plaintiffs had examined two witnesses and on their behalf four documents were exhibited. The defendants had examined four witnesses and on their behalf twelve documents were exhibited. 6. (6) To what other relief or reliefs the plaintiffs are entitled to get in law and equity ?” 5. To substantiate the case, plaintiffs had examined two witnesses and on their behalf four documents were exhibited. The defendants had examined four witnesses and on their behalf twelve documents were exhibited. 6. In issue no.3, learned trial court came to a finding that the suit plots correspond to plaintiffs’ sabik plot nos.8/897 and 18/998 and accordingly answered the same in favour of the plaintiffs. In issue nos.4 and 5 and additional issue no.2, learned trial court came to hold that the plaintiffs have right, title and interest over plot nos.740 and 951. The defendants have perfected title over plot nos.695, 816 and 826 and the suit lands have not lost its identity at the spot. Learned trial court further held that the suit is not barred by limitation. The suit was decreed in part and right, title and interest of the plaintiffs over plot nos.740 and 951 was declared and accordingly their possession was confirmed. The defendants were permanently restrained to enter into the said plots. Assailing the judgment and decree passed by the court below, the plaintiffs filed T.A. No.11 of 1999 in the court of the learned Adhoc Additional District Judge, Kamakhyanagar. The appeal was allowed. 7. While admitting the present appeal, the following substantial question of law was framed by a Bench of this Court on 16.3.2007. “Whether the learned courts below have failed to understand the scope and ambit of the theory of adverse possession while considering the documents and other evidence on record ?” 8. Heard Mr. G.R. Samantaray, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mrs. S. Mohanty, learned counsel on behalf of Mr. R.K. Mohanty, learned Senior Advocate for the respondent no.2. None appears for the respondent nos.1, 3 to 7. 9. Mr. Samantaray, learned counsel for the appellants submitted that the learned lower appellate court has failed to consider that the defendants claimed independent title over the suit plots and pleaded that the plots referred to by the plaintiffs do not correspond to plot of the defendants and in alternative claimed adverse possession. The very fact that the defendants claimed independent itself establishes the requirement of adverse possession. The very fact that the defendants claimed independent itself establishes the requirement of adverse possession. He further submitted that the lower appellate court has erred in holding that the exhibits 2, 3 and F, the RORs, where the land has been described as ‘Dhana Souri’ falsifies the case of defendants. The land was reclaimed by their father, as it was a jungle land. The documents show possession of the defendants in the remark column. He further submitted that the defendants have perfected title by way of adverse possession. 10. Per contra Mrs. Mohanty, learned Advocate for the respondent no.2 supported the judgment of the learned lower appellate court. She submitted that adverse possession is a mixed question of law and fact. Learned lower appellate court on an analysis of the evidence on record and pleadings decreed the suit. In the absence of any perversity in the findings of the courts below, this Court should not interfere with the same. 11. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that “the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor”. 12. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 , adverted to the ordinary classical requirement, that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. 13. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. 13. Thus the test of nec vi, nec clam, nec precario i.e., “not by force, nor stealth, nor the license of the owner” has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession as held by the apex Court in P. T. Munichikkanna Reddy and others v. Revamma and others, AIR 2007 SC 1753 . 14. Long and continuous possession by itself would not constitute adverse possession as held by the apex Court in the case Md. Mohammad Ali (Dead) By Lrs. v. Jagadish Kalita and others, (2004) 1 SCC 271. 15. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property as held by the apex Court in the case of T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570 . 16. On the anvil of the decisions cited supra, the instant appeal may be examined. 17. The learned lower appellate court came to hold that the pleading of the defendants with regard to adverse possession is vague. The defendants have not pleaded as to how and when their possession became adverse. They have disputed the correctness of the corresponding sabik plots and hal plots. They are not aware about the true owner of the suit land. The learned lower appellate court came to hold that the pleading of the defendants with regard to adverse possession is vague. The defendants have not pleaded as to how and when their possession became adverse. They have disputed the correctness of the corresponding sabik plots and hal plots. They are not aware about the true owner of the suit land. They have not also pleaded about the hostile animus and ascertain of their title against the true owner. It is only stated that they are in possession of the lands for 40 years. The same cannot be prescribed title by way of adverse possession. The pleadings shows that the defendants long possession, but does not show when they came to know about the plaintiffs ownership over the suit land and the date on which they remained in possession with hostile animus to the plaintiffs. The pleadings of the defendants fall for short of the requirements of adverse possession. The plea of the defendants that they are in possession of the suit land since 1950 has been negatived taking into consideration of the Exts.2 and 3, i.e., the record of rights of the suit lands of sabik settlement of the year 1928. Learned lower appellate court held that documents Exts.2 and 3 falsify the claim of the defendants. It further held that witnesses for the defendants have not definitely stated the point of time when the adverse possession commenced and the nature of possession of the defendants. 18. Reliance placed on yadast by the learned counsel for the appellants is of no avail. There is no foundational fact with regard to the adverse possession. 19. Learned lower appellate court has rightly arrived at the conclusion with regard to the possession on the basis of evidence, both oral and documentary. There is no perversity in the same. In view of the same, this Court is not inclined to interfere with the judgment and decree of the learned lower appellate court. Accordingly, the second appeal is dismissed. No costs.