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2016 DIGILAW 930 (ORI)

Sankirtan Majhi v. Chhedu Prasad Sukla

2016-10-07

D.DASH

body2016
JUDGMENT : The appellant in this appeal has called in question, the judgment and decree passed by the learned passed by the Addl. District Judge, Jharsuguda in R.F.A. No. 07 of 2008 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Jharsuguda (as it was then) in Civil Suit No. 08 of 2007. The plaintiff had filed the suit as above numbered seeking decree for declaration of his right, title and interest over the suit land in Schedule – ‘A’ of the plaint followed by decree for recovery of possession and injunction. The suit having been decreed, the appellants being the unsuccessful defendants had filed the appeal questioning above judgment and decree of the trial court. The appeal having also been dismissed, the present move is again by those unsuccessful defendants by filing this appeal under section 100 of the Code of Civil Procedure for redressal of their sufferings on account of the confirming judgments and decrees standing against them. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that the suit land with other land originally belonged to Ramanath Sukla and Ramdulari Sukla who are two brothers. In a partition effected amicably between them, the suit land came to the hands of Ramnath as of his share. Ramnath died having behind sons and daughters and the suit land with other land fell in the share of plaintiff as finally shown and accepted in Ceiling Case No. 03 of 1975 instituted against them under the provisions of Orissa Land Reforms Act. Accordingly, said land was mutated in his name by order in mutation case no. 57, 58 and 354 of 2001 followed by issuance of separate record of right in respect of the suit land in favour of the plaintiff who remained in possession of the same as before. It is alleged that prior to the suit, on 10.01.2007, the defendants trespassed over the suit land, finding the opportune moment and taking advantage of his absence. It is further alleged that they forcibly constructed a house over it putting boundary wall all around claiming to be the owner of the suit land and then asserted as such. It is alleged that prior to the suit, on 10.01.2007, the defendants trespassed over the suit land, finding the opportune moment and taking advantage of his absence. It is further alleged that they forcibly constructed a house over it putting boundary wall all around claiming to be the owner of the suit land and then asserted as such. The plaintiff also avers that inspite of protest, the defendants did not listen to it and went on doing so by show of force and giving threats. It is said that though the defendants have no right, title and interest over the suit land, yet they are not leaving the suit land as they are influential in the locality. 4. The defendants while traversing the plaint averments have pleaded that their father and grandfather were working as Gotis (servants) under plaintiff’s father and as such were looking after the cultivations and also their other household works. So, plaintiff’s father had given the land as specifically described in Schedule-‘X’ of the written statement which is included in the suit land to forefathers of the defendants. Since then fairly for a long period from the time of forefathers, they have been residing in the house constructed over it. It is claimed that having remained in possession of the suit land constructing house thereon and residing therein, they have perfected title over it by adverse possession and as such the title of the plaintiff in so far as the suit land is concerned has long since been extinguished. Thus, it is said that the orders in ceiling and mutation proceedings are not binding on them and are of no legal significance or impact in so far as they are concerned. Over and above, the pecuniary jurisdiction of the trial court had been questioned in view of the market value of the suit land as also the maintainability of the suit on the ground of non-joinder of necessary parties. 5. The trial court with the above rival case of the parties, framed in total twelve issues. Since issue no. 6, 7, 8 and 9 which are intertwined and relate to the right, title and interest of the parties as per their rival claim over the suit land, the trial court appears to have made the right approach for recording decisions on all those issues together. Since issue no. 6, 7, 8 and 9 which are intertwined and relate to the right, title and interest of the parties as per their rival claim over the suit land, the trial court appears to have made the right approach for recording decisions on all those issues together. Upon examination of evidence both oral and documentary in the backdrop of the pleadings keeping in view the settled position of law at its level it has answered the issues in favour of the plaintiff. Lastly, other two technical issues have been answered in favour of the entertainment of the suit for its disposal in accordance with law. 6. The lower appellate court in viewing of the challenge before it to those findings as above has taken up the exercise of reappraisal of evidence. In that exercise at the end however, it has also recorded the same answer as that of the trial court. In view of that the defendant appellants having not been relieved of the suffering from the judgment and decree of the trial court, the present second appeal is the next move. 7. The appeal has been admitted on the following substantial question of law:- Whether the learned lower appellate court has committed an error in not discussing the materials on record with regard to plea of adverse possession raised by the appellant-defendant before the court below for which a specific issue was framed and the learned lower appellate court has also dealt the said issue? 8. Learned counsel for the appellants in urging for recording the answer on the substantial question of law in favour of the appellants contends that the evidence on record as regards long possession of the defendants since the time of their forefathers have not been considered in their proper prospective to hold that the same is as that of owner exercising all the rights as such, hostile to the true owner. So according to him, when there remains all the justification for acceptance of evidence that forefathers of the defendants had been given with the land described in the schedule of the written statement by plaintiffs father, the courts below ought to have held that the title of the plaintiff stood extinguished since long. So according to him, when there remains all the justification for acceptance of evidence that forefathers of the defendants had been given with the land described in the schedule of the written statement by plaintiffs father, the courts below ought to have held that the title of the plaintiff stood extinguished since long. Thus, it is submitted that the lower appellate court has erred both in fact and law and has not correctly decided the issues while going to decree the suit. 9. Learned counsel for the respondent in reply supports the concurrent findings of the courts below. According to him, the courts below being quite conscious of the settled position of law have finally found the defendants to have failed to prove their case of acquisition of title over the suit land by adverse possession. It is his contention that even accepting the case of the defendants that the land was given to their forefathers as they were serving under the plaintiff’s father, in the absence of any evidence going to prove the factum of delivery of possession being given to the forefathers of the defendants so as to enjoy the same as owner since then that too giving up all the rights over it by the father of the plaintiffs, the possession even though for a moment is accepted, it stands all along to be permissive as it has not been proved that at any point of time there was any such overt-act to the knowledge of the plaintiff’s father or plaintiff and thus the conclusion against the case of acquisition of title by adverse possession as to have not been established does not call for interference. 10. The defendants admit the father of the plaintiff to be the person having right, title and interest over the suit land which includes the land described in Schedule – ‘X’ of the written statement. Their case is that the land had been given to their forefather since they were working under the true owner and his ancestors. As regards the above giving of the land by the father of the plaintiff leaving all the rights in other words relinquishing the rights, there remains no such document in writing. All these as claimed are not through any such legally valid document. As regards the above giving of the land by the father of the plaintiff leaving all the rights in other words relinquishing the rights, there remains no such document in writing. All these as claimed are not through any such legally valid document. Even it is not said that the plaintiff’s father left the property for being occupied by the forefathers of the defendants by having house over it as because they were working as Gotis i.e., as labourers all along Ext. D is placed so as to infer from that the land was left to be possessed as owner by exercising the rights as such from that day which has thus been continuing without any interruption. But this Ext. D has not been duly proved and interestingly defendant’s witness i.e., D.W. 3 has practically reduced its value next to nil for any purpose whatsoever to zero and it has thus remained on record just as a piece of paper. This has been discussed by the courts below. 11. In such state of affair, the oral evidence of possession of the defendants even for a long period, we go to accept, the same does not go to place the defendants in a better position for the purpose of thwarting the suit in preventing the plaintiff from being successful when he has established his title over the suit land through documentary evidence that this property having been declared to have fallen in his share in prior partition which has been so accepted in the ceiling proceeding and accordingly, has been duly mutated. It is pertinent to mention here that the defendants have neither pleaded nor have tendered evidence to show that at any time during their possession by show of some overt act to the knowledge the plaintiff that they having asserted ownership and claiming as such continued further to possess for more than the statutory period and thus it was with hostile animus by exhibition of the same as such within the knowledge of the plaintiff besides being open and peaceful. 12. It is the settled position of law that mere possession of land by a person for a length of time; does not perfect the title by adverse possession. The law has been clearly enumerated in the catena of decisions, as noted in the case of P.T.Munichikkanna Reddy and others v. Revamma and others, 2007 (1) C.J.D. (SC) 330. 12. It is the settled position of law that mere possession of land by a person for a length of time; does not perfect the title by adverse possession. The law has been clearly enumerated in the catena of decisions, as noted in the case of P.T.Munichikkanna Reddy and others v. Revamma and others, 2007 (1) C.J.D. (SC) 330. At para 23 of the said judgment, relying upon the decision of the Court in the case of Karnataka Board of Wakf v. Government of India and others; 2004 (4) 10 SCC 779, the terms with regard to peaceful, open and continuous possession as engraved in the maxim nec vi, nec calm, nec precario has been noticed as under :- “………Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show; (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. It has been next held that it is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner.” For the purpose, the court has also quoted with approval the law as enunciated in the case of Karnataka Wakf Board (supra):- “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec calm, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S.M.Karim v. Bibi Sakinal AIR 1964 SC 1254 , Parsinni v. Sukhi JT 1993 (5) SC 435 and D.N.Venkatarayappa v. State of Karnataka (JT 1997 (6) SC 155) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P. Periasami v. P. Periathambi this Court ruled that-Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 13. He must specifically plead it. In P. Periasami v. P. Periathambi this Court ruled that-Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 13. The lower appellate court having examined the sustainability of the finding of the trial court on that issue of acquisition of title over the suit land by the defendants by way of adverse possession is seen to have discussed the evidence on record in the touchstone of the settled law. 14. Aforesaid discussion at para – 10 when placed for being looked through the legal prism built upon the above settled position of law, the defendant’s case is not visible so as to be accepted in holding that they have perfected title over the suit land by adverse possession and thus the title of the plaintiff has stood extinguished prior to the suit. All these provide the answer to the substantial question of law against the appellants and thus the outcome is that the concurrent findings of the courts below are hereby affirmed and consequently the judgments and decrees as those stand in the favour of the plaintiff stand confirmed. 15. Resultantly, the appeal stands dismissed. In the peculiar facts and circumstances, the parties are to bear their respective cost of litigation all throughout.