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2017 DIGILAW 1329 (ORI)

Sugriba Gantayat v. Indramani Pradhan

2017-11-20

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is a plaintiffs’ appeal against confirming judgment. 2. The plaintiffs instituted the suit for declaration of right, title and interest and recovery of possession. The case of the plaintiffs is that suit land was recorded in the name of their father Balabhadra Gantayat. In the year 1968, the predecessor-in-interest of the defendants, were permitted to occupy the land by constructing temporary sheds as their houses had been destroyed in fire. In the year 1978, the defendants agreed to vacate the land, but then they did not vacate the land. 3. The defendants filed written statement stating that their predecessors-in-interest had purchased the land by oral sale in the year 1946. They had acquired title by way of adverse possession. 4. On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence oral and documentary. Learned trial court came to hold that the plaintiffs had failed to prove that defendants were in permissive possession of the suit land since 1968. It disbelieved the plaintiffs’ oral purchase. It held that the defendants acquired title by way of adverse possession. Held so, it decreed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the learned trial court before the learned District Judge, Dhenkanal in T.A. No.8 of 1983, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 to 3 of the memorandum of appeal. The same are : “1. Whether the courts below have committed an illegality in holding that the defendants have acquired title by way of adverse possession after disbelieving the defendant’s case of oral sale without recording a finding as to the date from which the possession became adverse. 2. Whether the courts below committed an illegality in placing the onus on the plaintiff’s to prove the permissive possession of the defendants. 3. Whether in view of the fact that the suit was filed in the court of the Munsif in 1978, it can be said that the defendants had acquired title by adverse possession as their possession started in the year 1968.” 6. Heard Mr. Jyoti Ranjan Deo on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appeared for the respondents. 7. Mr. Heard Mr. Jyoti Ranjan Deo on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appeared for the respondents. 7. Mr. Deo, learned counsel for the appellant submitted that the original entry of the defendants into the suit land was permissive in nature. Referring to paragraph 13 of the written statement, he contended that the possession of the defendants is permissive. He further contended that one of the foremost requirements for the applicability of the principle of adverse possession is the date from which the possession becomes adverse and the same has to be averred and proved by the defendants. The defendants have not pleaded with regard to the date from which their possession over the suit property became adverse. The learned courts below disbelieved the plea of the oral sale. The learned courts below failed to appreciate that in order to prove adverse possession, the defendants had to specifically prove from which date there was a hostile animus, as their entry into the land is claimed to have permissive in nature. He further submitted that the parties whose possessions are permissive cannot claim title on the basis of adverse possession, unless they show specific overt act and assertion on their part that they have disclaimed the title of the true owners. The findings of the learned courts below are perverse. He relied on the decisions of the apex Court in the case of Thakur Kishan Singh (dead) vs. Arvind Kumar, AIR 1995 SC 73 , Dr. Bhargava & Co. and another vs. Sh. Shyam Sunder Seth by L.Rs., AIR 1995 SC 377 , Annasaheb Bapusaheb Patil and others vs. Balwant alias Balasaheb Babusahed Patil (dead) by LRs. & heirs etc., AIR 1995 SC 895 , Roop Singh (Dead) through L.Rs. vs. Ram Singh (Dead) through L.Rs., AIR 2000 SC 1485 , Yadarao Dajiba Shrawane (dead) by L.Rs. vs. Nanilal Harakchand Shah (dead) and others, AIR 2002 SC 2849 , Annakili vs. A. Vedanayagam and others, (2007) 14 SCC 308 , Chattikonati Rao and others vs. Palle Venkata Subba Rao, (2010) 14 SCC 316 , Tribhuvanshankar vs. Amrutlal, (2014) 2 SCC 788 , Easwari vs. Parvathi and others, AIR 2014 SC 2912 and the decision of this Court in the case of Desharanjan Tripathy @ Tukuna vs. Jadumani @ Jadunath Tripathy & others, 2017 (II) ILR-CUT-332. 8. In Karnataka Board of Wakf vs. Govt. 8. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779 , the apex Court observed as under :- "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use 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 the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, 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. The court further observed that 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.” (emphasis laid) 9. The defendants took the plea that they had acquired title by way of adverse possession. Both the courts negatived the plea of oral sale. 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.” (emphasis laid) 9. The defendants took the plea that they had acquired title by way of adverse possession. Both the courts negatived the plea of oral sale. In paragraph 13 of the written statement, it was pleaded that “in view of the fact that the father of the plaintiff and the plaintiffs themselves having allowed the ancestors of the defendant nos.1 to 9 and 10 himself and for that matter the defendants to raise structures of permanent nature at huge cost over the suit land within their knowledge and sight are now estopped in equity to evict the defendants from the suit land and from obtaining recovery from the suit land by demolition of the said valuable structures.” By no stretch of imagination, it cannot be said that the defendants had made out a case of adverse possession. In view of the categorical assertions that the father of the plaintiff and plaintiffs themselves allowed the ancestors of the defendants to raise structure over the suit land, possession of the defendants is permissive. The date of entry into the suit land has not been mentioned. There is no element of hostile animus. Mere possession of the suit land for long time is not suffice to hold that the defendants have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 10. Entia non sunt multiplicanda sine necessitate (Things should not be multiplied without necessity) is a well known principle in the administration of justice. In view of the same, this Court has not multiplied the authorities cited at the bar, since the ratio in all the decisions is same. 11. A priori, the impugned judgments are set aside. The appeal is allowed. Consequently, the suit is decreed.