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2017 DIGILAW 1383 (ORI)

Harish Chandra Majhi v. Madhu Ray

2017-11-30

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. 1. This appeal is directed against the judgment and decree dated 30.01.2004 and 11.02.2004 respectively passed by the learned District Judge, Sundargarh in T.A. No. 04 of 1996 dismissing the same and thereby affirming the judgment and decree dated 24.11.1995 and 08.12.1995 respectively passed by the learned Civil Judge (Senior Division), Sundargarh in T.S. No. 03 of 1991. 2. Respondent no. 1 as plaintiff instituted a suit for declaration of right, title, interest and recovery of possession. The case of the plaintiff was that the suit land originally belonged to one Bhajaman Ray, common ancestor of the parties. Bhajaman had two sons, namely, Antaram and Mansudan. During Mukherjee Settlement, Bhajaman and Antaram died. The suit land was recorded in the name of Mansudan. Antaram had three sons, namely, Braja, Raghu and Kanhei. He is the son of Kanhei. Braja had three sons, namely, Rupdhar, Kulu and Benudhar (defendant no. 3). Rupdhar and Kulu are dead. Defendant no. 2 is the son of Rupdhar. Lalita is the daughter of Raghu. Mansudan died in the state of jointness with him and defendant nos. 2 and 3. Mansudan wife Sulakhyani died in the year 1972. The suit land was recorded in the name of Sulakhyani during Kistiwari settlement. Mansudan had kept Sumitra in his house and given her marriage with Rajendra Naik, defendant no. 1. Sumitra died in the state of jointness with the plaintiff and defendant nos. 2 and 3. However, taking advantage of illiteracy of the plaintiff and defendant nos. 2 and 3, the defendant no. 1 got his name recorded in the Hal Settlement in Hal Khata No. 199. After the death of Sumitra, defendant no. 1 did not allow him and other defendants to cultivate the suit land. Defendant no. 1 has no right, title and interest over the suit schedule property. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendant no. 1 filed a written statement denying the assertions made in the plaint. It was pleaded that the suit property was the self acquired property of Mansudan Ray. The same was recorded in his name during Mukherjee Settlement. Sumitra, adopted daughter of Mansudan, is in possession of the suit property. After her marriage, defendant no. 3. Defendant no. 1 filed a written statement denying the assertions made in the plaint. It was pleaded that the suit property was the self acquired property of Mansudan Ray. The same was recorded in his name during Mukherjee Settlement. Sumitra, adopted daughter of Mansudan, is in possession of the suit property. After her marriage, defendant no. 1 is in possession of the same for the last forty years and as such, perfected his title by way of adverse possession. The suit land has been recorded in his name. It was further pleaded that the plaintiff, defendant nos. 2 and 3 never possessed the suit land. The plaintiff has no manner of right, title and interest over the suit land. 4. On the, inter se, pleadings of the parties, the learned trial court struck five issues. Both parties led evidence, oral and documentary, to substantiate their cases. On an anatomy of pleadings and evidence, learned trial court held that suit property is the ancestral property of the parties. Defendant no. 1 failed to prove the acquisition of title by way of adverse possession. Held so, it decreed the suit. Felt aggrieved, the defendant no. 1 filed T.A. No. 04 of 1996 before the learned District Judge, Sundargarh, which was eventually dismissed. It is apt to state here that during pendency of the title appeal, the sole appellant died and his legal heirs have been substituted. 5. Mr. Mohanty, learned advocate for the appellants submits that the learned appellate court fell into patent error of law in holding, inter-alia, that the provision of Hindu Succession Act applies to the Scheduled Tribes. There is no prayer to set aside the R.O.R. published in the year, 1977. The suit was barred by limitation. He further contends that there is an ample evidence on record that the defendant no. 1 has perfected his possession over the suit land peacefully, continuously and with hostile animus to the plaintiff for more than the statutory period and as such, perfected title by way of adverse possession. 6. The submission of Mr. Mohanty, learned advocate for the appellants is difficult to fathom. In paragraph-9 of the judgment, learned appellate court held that the provision of Hindu Succession Act does not apply to the Scheduled Tribes. 6. The submission of Mr. Mohanty, learned advocate for the appellants is difficult to fathom. In paragraph-9 of the judgment, learned appellate court held that the provision of Hindu Succession Act does not apply to the Scheduled Tribes. Placing reliance on the decision of this Court in the case of Dhanurjaya Kirsani vs. Sukra Kirsani and Others, (1986) 62 CLT 123, it held that the old Hindu Law shall govern the succession of the parties. The suit was filed for declaration of right, title, interest and recovery of possession. Adverse possession is not a pure question of law but a blended one of fact and law. Both the courts concurrently held that defendant no. 1 has not perfected title by way of adverse possession and the suit is not barred by limitation. There is no perversity or illegality in the findings of the courts below. 7. In the result, the appeal is dismissed, since the same does not involve any substantial question of law. No costs.