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2017 DIGILAW 1102 (ORI)

Rutuparna Pradhan v. Sri Sri Jagannath Mahaprabhu

2017-09-22

D.DASH

body2017
JUDGMENT : 1. This appeal under section 100 of the Code has been filed impeaching the judgment and decree passed by the learned District Judge, Bargarh in R.F.A. No. 57 of 2015 confirming the judgment and decree passed by the learned Nyayadhikari, Gram Nyayalaya-cum-Civil Judge (Junior Division), Attabira in C.S.G.N. No. 03 of 2015. 2. The respondents as the plaintiffs had filed the suit for recovery of possession of the suit land belonging to the deity (respondent no.1-plaintiff no.1) from appellant-(defendant) and for permanent injunction. The suit having been dismissed, the present appellant being aggrieved and under sufferance of the said judgment and decree had preferred the first appeal under section 96 of the Code. The said move having not yielded any fruitful result for the present appellant, the approach is now to this Court carrying the above appeal for overturning the concurrent findings recorded by the courts below and the ultimate result of the suit. 3. 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 arraigned in the trial court. 4. Plaintiffs case is that, the suit land is owned by the deity-plaintiff no.1 who is the recorded tenant in respect of the same. It is stated that father of the defendant had absolutely no right, title and interest over the land under Consolidation plot Nos. 4416 and 4417. He was having the house on the frontal of the said plots of land when the remaining portions of the land under Plot Nos. 4416, 4417 and 4418 were lying vacant and in occupation of the deity-plaintiff no.1 for being utilized for the benefit and the necessity as the case may be of the deity. It is stated that during four laning of National Highway No.6, the construction made by the defendant’s father on the front portion of the land stood demolished and the land after being acquired. The land being owned by the deity (plaintiff no.1) in so far as the compensation for the land is concerned, said amount was paid to the deity-plaintiff no.1. In respect of the existing constructions over the said land as it had been made by the father of the defendant, the compensation was paid to the defendant who has duly received the same. In respect of the existing constructions over the said land as it had been made by the father of the defendant, the compensation was paid to the defendant who has duly received the same. It is alleged that after such demolition, the defendant remained adament to put up construction over the land of the deity-plaintiff no.1 lying adjacent to the land, where the structures which stood were demolished. So there was dispute with the villagers representing the deity-plaintiff no.1 and the office bearers of the managing committee in place for day to day management and administration of the deity’s affairs. For the same a proceeding under section 144 Cr.P.C. came to be registered. It is alleged that despite order of restraint, the defendant did plinth work to make some construction over the suit land belonging to the deity-plaintiff no.1, adjoining the acquired land. Finally, the deity-plaintiff no.1 with the office bearers of the managing committee in place for the day to day management and administration of the deity-plaintiff no.1 filed the suit. 5. The defendant coming to contest the same, while traversing the plaint averments has stated that the proceeding under section 144 Cr.P.C. has been initiated mainly at the instance of the plaintiff no.3 although there surfaces no justifiable reason for the same. It is stated that the land under M.S. Plot No. 1620 belonging to the deity-plaintiff no.1 had come to the possession of the father of the defendant on and from 23.06.1974 when the sarpanch and the village gentries had executed an Ekrarnama in respect of the said property in favour of the defendant’s father and had delivered the possession. This Ekrarnama was for an area of A0.08 decimals and the father of the plaintiffs had paid consideration of Rs.2400/- for the purpose. Thus it is said that since then the land has been in exclusive possession of the father of the defendant and thereafter it has come to the hands of the defendant. The defendant admits the fact that there has been acquisition of land of the deity-plaintiff no.1 for the purpose of widening of the National Highway and the acquisition has been in respect of the land under Chaka Plot Nos. 4416, 4417 and 4418. It is his case that he with his brother are in possession of the rest of the land since 13.06.1997. 4416, 4417 and 4418. It is his case that he with his brother are in possession of the rest of the land since 13.06.1997. A technical objection has been raised that since the consolidation operation is in progress in the village concerned, the suit is hit under the provision of under section 51 of the OCH and PFL Act. 6. On the above rival pleading, framing six issues and upon evaluation of the evidence in the back drop of the pleadings, the trial court has recorded the answer that the defendant has raised unauthorized construction over the suit land after receiving the compensation in view of the demolition of the structure standing over the land touching the suit land. With the said finding, the defendant has been permanently restrained to put any construction over it. The first appellate court as is seen from the judgment after detail scrutiny of the evidence at its level has given an independent finding on all those issues basing on which the impugned judgment and decree have been confirmed. 7. Mr. R.K. Mohanty, learned Senior Counsel appearing on behalf of the appellant contends that following substantial question of law arises in this appeal which merits its admission:- “Whether rights of the plaintiffs over the suit property stood extinguished under section 27 of the Limitation Act when the defendant has perfected his title by adverse possession by remaining in continuous and uninterrupted possession for more than the statutory period as prescribed under Articles 64 and 65 of the Limitation Act?” It is submitted that in view of the available overwhelming evidence with regard to the possession of the suit property from the time of the father of the defendant till the date of suit, the courts below have erred in law by not recording the finding that the title of the deity-plaintiff no.1 over the said property has been extinguished and as such as per the provision of under section 27 of the Limitation Act, in order to save the suit and to get the decree, it was incumbent upon the plaintiffs to prove that the suit has been filed within a period of twelve years from the date of commencement of the possession of the land by the plaintiffs. 8. 8. There is no denial of the factual aspect touching the case that the suit land stood recorded in the name of the deity-plaintiff no.1 and his sebayats. It is admitted that the portion of the land near the suit land belonging to the deity-plaintiff no.1 has been acquired for the four laning of the National Highway. It is also not in dispute that the deity has received the compensation for acquisition of the said land. It further stands admitted that the defendant has been paid with the compensation towards the structure standing over the land and in their occupation on account of demolition of such structure. The highlighting feature is that the defendant himself has proved the receipt to that effect which has been marked as Ext.B. 9. The question arises in this case is as to whether the defendant has the right to possess the suit land and as such also utilize and enjoy the same as per his own wish and desire as that of the owner having the preference over the deity-plaintiff no.1, the original owner, not a prior possessor. When it is seen that the acquired lands and the suit land are in one patch, the receipt of compensation only in respect of the structure made by the defendant under Ext.B, for its demolition in the process of acquisition of the land and utilization for the public purpose establishes that the defendant does not deny the title of the deity-plaintiff no.1 in respect of the entire land i.e. the acquired land as also the suit land which is said to be the remaining portion of the land under those plots which adjoin one another. Let us accept for a moment that the suit land has remained in possession of the defendant since the time of his father, and say even for quite a long period as that of the owner. But the acceptance of compensation only in respect of the structure standing over the portion of the land belonging to the deity–plaintiff no.1 which lies adjacent to the suit land clearly amounts to admission of the title of the deity-plaintiff no.1 as also deity-plaintiff no.1’s title in respect of the suit land which stands in one khata and mouza under consolidated plots. The severance of the intention behind the possession of the suit land and the acquired land is not at all permissible to be inferred in view of peculiar positioning of the land in the same analogy that a tenant is stopped from raising a plea of acquisition of title by adverse possession in respect of a land lying adjacent to the tenanted premises belonging to the same landlord. This being the situation, possession of the defendant even if so said in respect of the suit land it is clearly as that of a trespasser which cannot be projected against the owner-deity-plaintiff no.1 to thwart the suit for recovery of possession and permanent injunction. The plaintiffs having filed the suit for recovery of the possession and permanent injunction based on title, the burden of proof squarely lies upon the defendant as per Article 65 of the Limitation Act to establish that he has a better right to possess the suit land and as such cannot be permanently injuncted at the instance of the plaintiffs. This he can succeed upon establishment of his case of acquisition of title over the suit land by adverse possession i.e. by remaining in open, peaceful and continuous possession for upward of the prescribed period as its owner, exercising all the rights as such to the knowledge of the owner and by denial of owner’s title. Only upon establishment of above essential ingredients through evidence by preponderance of probability when the defendant is said to have acquired title over the suit land, as provided in section 27 of the Limitation Act it would be permissible to say that the plaintiff’s right has since been extinguished. In that event in order to get rid of that finding, the plaintiffs would have been under compelled legal obligation to show that the suit has been filed within twelve years of their dispossession or that plaintiffs were in possession at any time within twelve years. The factual positions in the instant case are different. Here plaintiff no.1 is the owner of the property in question, so the possession of the defendant even if is so in respect of the suit land, it cannot be taken to be having any reference to as that of a title holder. Said possession may be a good title against all others except plaintiff no.1-deity. Here plaintiff no.1 is the owner of the property in question, so the possession of the defendant even if is so in respect of the suit land, it cannot be taken to be having any reference to as that of a title holder. Said possession may be a good title against all others except plaintiff no.1-deity. The relationship of the plaintiff no.1-deity vis-à-vis the defendant as relatable to the suit land thus stands as that of owner and trespasser since the question of the defendant having a march over the title of the plaintiff in respect of the suit land rendering the deity-plaintiff no.1’s title as no more visible through the legal spectrum does not arise herein. The nature of possession thus can be termed as precarious at the mercy of the owner-plaintiff no.1-deity, liable to be taken away at any point of time, of course following the due process of law. 10. For the aforesaid discussion and reason, this Court is not in a position to accept the submission of the learned Senior Counsel for the appellant that any substantial question of law arises in the case in hand for being answered having any definite impact over the findings and result of the suit. 11. In the wake of aforesaid, it is found that this appeal does not merit admission. Accordingly, the appeal is dismissed. No order as to cost.