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2017 DIGILAW 1397 (ORI)

Bhagabat Samal v. Rashmikanta Sahoo

2017-12-04

D.DASH

body2017
JUDGMENT : The above three appeals filed under section 100 of the Code of Civil Procedure arise out of the common judgment passed by the Additional District Judge, Jajpur in R.F.A. Nos. 34 of 2006, 35 of 2006 and 36 of 2006 followed by respective decrees. The three appeals have been admitted on 22.04.2011 framing same set of substantial questions of law. Therefore, those have been heard together for their disposal by this common judgment. 2. For better appreciation, it is pertinent at this stage to state the following facts relating to the proceedings. (a) Title Suit No. 246 of 1993 is the suit for partition of the property described in schedule of the plaint filed by the respondent as the plaintiff against the appellant being arraigned as the sole defendant. The trial court having preliminarily decreed the suit declaring plaintiff-respondent’s 1/7th share and 6/7th share of the defendant-appellant, the unsuccessful defendant-appellant had filed the first appeal i.e. R.F.A. No. 36 of 2006. That appeal having been dismissed, in the present second appeal under (A), those judgments and preliminary decrees have been called in question. (b) Title Suit No. 154 of 1995 is the suit for declaration of right, title, interest and possession with demarcation of land under Plot Nos. 89 and 90 and for permanent injunction at the behest of the appellant as the plaintiff against the respondents arraigning them as defendants. It may be stated that the defendant no.1 is the wife of defendant no.2 and defendant no.3 is their son. The suit having been decreed in part declaring plaintiff-appellants right, title and interest over the suit property to the extent of his 6/7th share, he had filed the first appeal i.e. R.F.A. No. 34 of 2006 and that having been dismissed, the present second appeal under (B) has come to be filed. (c) Title Suit No. 155 of 1995 is the suit filed by the appellant as the plaintiff with the prayer of permanent injunction simplicitor in respect of the properties described in that plaint schedule against the respondents arraigning them as defendants who are father and son. Since the suit stood decreed in part declaring the plaintiff-appellant’s right, title and interest in respect of his 6/7th share over the suit property, first appeal i.e. R.F.A. No. 35 of 2006 had been filed by the aggrieved plaintiff-appellant. Since the suit stood decreed in part declaring the plaintiff-appellant’s right, title and interest in respect of his 6/7th share over the suit property, first appeal i.e. R.F.A. No. 35 of 2006 had been filed by the aggrieved plaintiff-appellant. That having not yielded in any fruitful result for him, the second appeal under (C) is the next move. 3. The above three suits being analogously tried had come to be disposed of by the learned Civil Judge (Senior Division), Jajpur by the common judgment followed by the respective decrees. 4. Essentially, the order passed in the suit stated at para 2(a) has prevailed upon the result of other two suits mentioned at para 2(b) and 2(c). At the cost of repeatation, it may be placed that consequent upon dismissal of the first appeal i.e. R.F.A. No. 36 of 2006 filed against the judgment and preliminary decree passed in the suit finding mention at para 2(a), the result of other two first appeals i.e. R.F.A. No. 34 of 2006 arising from suit indicated at para 2(b) and R.F.A. No. 35 of 2006 arising from suit as stated at para 2(c) have faced their dismissal. 5. The rival case of the parties as regards their rights over the suit property as set forth forming the basis of the reliefs claimed in the respective suits which remain the same are stated hereunder:- The properties in question had been acquired by one Anathabandhu who died leaving behind his widow, Gurubari, one daughter, namely, Kamalini and five sons. On the death of Anathabandhu his widow Gurubari, daughter Kamalini and five sons succeeded to the property as his heirs/successors, each having 1/7th shared interest over the same. It is stated by the plaintiff in T.S. No. 246 of 1993 that there had been partition amongst the heirs of Anathabandhu and each of them separately possessed the land roughly extending to their 1/7th share. It is further stated that Kamalini who was in exclusive possession of the western side of Ac.0.04 decimals and 7 links of land has sold the same to the plaintiff by the Registered Sale Deed dated 17.08.1993 and had delivered possession of the same. It is stated that said plaintiff has been possessing the same since from the date of his purchase. It is stated that said plaintiff has been possessing the same since from the date of his purchase. The defendant of that suit asserts to have purchased the entire property from Gurubari, the widow of Anathabandhu and their five sons. His first attack is that Kamalini is not the daughter of Anathabandhu. When the plaintiff of the T.S. No. 246 of 1993 claims that pursuant to so called purchase by the defendant, there was no delivery of possession of the land in question to them by Gurubari and his five sons and therefore, the plaintiff is in possession of the land measuring Ac0.04 decimals and 7 links on the western side the defendant claims to have purchased the same from Gurubari and his five sons together with the rest. In other words, it is said that Kamalini being not the daughter of Anathabandhu, the entire land came to be succeeded by Gurubari and her five sons from whom the purchase has been made. It is said in the alternative that Kamalini even if had any share, the same has been extinguished as the whole was purchased and possessed. 6. On the basis of the case projected by the parties, the trial court having framed separate set of issues for each suits, has thereafter proceeded to answer the common issues having clubbed those. Practically the answer to those clubbed common issues has provided the answer to the rights of the parties. The plaintiff’s purchase under the sale deed under Ext.6 has been held to be valid to the extent of 6/7th share and that of the sale deed of the defendant under Ext. C has been held to be valid to the extent of 1/7th share. Said answer has provided the answer the other issues as regards the entitlement of the parties and the reliefs as claimed. The first appellate court has affirmed the findings and accordingly the result of the suits have been confirmed. 7. The appeals have been admitted on the following substantial questions of law :- (I) Whether the learned trial court erred in law in not framing an issue with regard to perfection of title of the appellant by way of adverse possession and when the parties have laid evidence in that regard. Whether the learned courts below have erred in law in not deciding the said question? Whether the learned courts below have erred in law in not deciding the said question? (II) Whether the learned courts below should have dismissed the suit in view of the fact that the defendant has never examined himself as a witness and denied the plaint allegation in the court? 8. Learned counsel for the appellants submitted that on the basis of the evidence on record the courts below ought to have found that the defendant of suit at para 2(a) having remained in possession of the entire property after he purchased the same from Anathabandhu’s widow Gurubari and five sons in the year 1976 under Registered Sale Deed, he has perfected title in respect of the interest of the daughter of Anathabandbhu over the property by way of adverse possession. According to him, the trial court ought to have framed that specific issue and answered the same in favour of the defendant. It is submitted that the defendant being the stranger to the family is in possession of the entire chunk of land to the exclusion of that non alienating co-sharer and that has to be deemed to be hostile from the date of his entry into the possession of the land which has to be taken as the date of denial of the interest of non-alienating co-sharer. In support of the proposition as above placed and the submission, he has placed reliance on the decisions; (i) Khato Lal Dass and another vrs. Md. Jahiruddin Babar and others, AIR 1984 Patna 239; (ii) Kranti Chandra vrs. Chhotelal and others, AIR 1964 Allahabad 425; (iii) Palaniappa Chetty and others vrs. M.P.N.Rm. Raman Chetty and others, AIR 1934 Madras 183; (iv) Joseph vrs. John, AIR 1960 Kerala 27; and (v) Bamadev Swain and another vrs. Sunakar Swain and another, 1986 (I) OLR 666. It was further submitted that the defendant purchased the entire land since the year 1976 when has remained in possession of the same by constructing a pucca house and other structures raising valuable trees, keeping within one enclosure, it has to be taken to be with the knowledge of Kamalini and subsequent purchaser from her. It was further submitted that the defendant purchased the entire land since the year 1976 when has remained in possession of the same by constructing a pucca house and other structures raising valuable trees, keeping within one enclosure, it has to be taken to be with the knowledge of Kamalini and subsequent purchaser from her. He further submitted that the defendant having continued to remain in open, peaceful possession of the suit land without any interruption from any quarter, the interest of Kamalini which is said to be to the extent of 1/7th share over the property which has been purchased by the plaintiff has to be said to have been extinguished. He next contended that the original owner has not been examined to deny the case of the defendant and on his behalf his power of attorney holder has been examined. According to him, said evidence of the power of attorney holder cannot be the substitute of the evidence of the owner on the particular score and therefore, for the said non-examination of the owner coming to deny the claim of title over the suit land by the defendant, adverse inference has to be drawn and accordingly no preliminary decree ought to have been passed in the suit at para 2(a) as has been done and it ought to have been dismissed in entirety following which the result in the other two suits should have been recorded. 9. Learned counsel for the respondent submitted that stands of the defendants are not only prevaricating but are wholly inconsistent to one another and thus legally irreconcilable. He further submitted that when at one stage it is said that Kamalini is not the daughter of Anathabandhu; at the very next stage, it is said that he has acquired title in so far as the interest of that Kamalini as the very daughter of Anathabandhu over the said land is concerned by adverse possession. He further submitted that when at one stage it is said that Kamalini is not the daughter of Anathabandhu; at the very next stage, it is said that he has acquired title in so far as the interest of that Kamalini as the very daughter of Anathabandhu over the said land is concerned by adverse possession. It was submitted that such divergent stands are not permissible for being entertained in the eye of law that one time the claimant would be denying the status of that person having the direct linkage with the interest as owner i.e. ownership; at the next moment that claimant would be saying that denying of the title/ownership of the particular person, he having remained in possession of the land in question for upward of the prescribed period, satisfying the legal requirements has perfected title over the said interest in the property of that person by adverse possession and thereby the title/ownership/interest of that person has stood extinguished. Therefore, he contended that the first substantial question of law does not at all survive for consideration for being answered in the facts and circumstances of the case and applying the settled position of law. As regards the next substantial question of law, it is stated that the plaintiff has not been prejudiced in any manner for non-examination of the defendant on the face of evidence of the witnesses examined on his behalf. Especially when the appellant before the lower appellate court has not pressed for decision afresh on that issue of status of Kamalini as the daughter of Anathabandhu and has abandoned the defence on that score, it was submitted that such non-examination of Rashmikanta now stands inconsequential and has lost all its significance and the framed substantial question of law on that score according to him does not also survive after framing of first substantial question of law. 10. The plaintiff has claimed 1/7th share over the property in question by virtue of the purchase from the daughter of Anathabandhu, namely Kamalini. It is stated that said purchase of the property is by Registered Sale Deed. The defendant has denied the status of Kamalini as the daughter of Anathabandhu and thereby had denied the plaintiff’s assertion that Kamalini had 1/7th share over the property in question. It is stated that said purchase of the property is by Registered Sale Deed. The defendant has denied the status of Kamalini as the daughter of Anathabandhu and thereby had denied the plaintiff’s assertion that Kamalini had 1/7th share over the property in question. The defendant had stated that Gurubari and her five sons being the owners of the property have sold the same to him and therefore, he is the owner of the entire property. This is by virtue of purchase from all the co-sharers. The issue with regard to the ownership of Kamalini and consequential to the same as regards her 1/7th interest over the property left by Anathabandhu upon detail examination of evidence and their assessment has been answered by the trial court against the defendant with the finding in clear terms that the Kamalini is the daughter of Anathabandhu over the property in question left by Anathabandhu. The said answer to the issue has not been called in qeustion before the lower appellate court as has been specifically reflected in the judgment. Thus the defence as regards that has been abandoned in the first appeals. Now it is claimed that by virtue of the sale deed from Gurubari and his five sons, the defendant has acquired the title and ownership over their 6/7th share on that land and over the 1/7th share of Kamalini, having remained in possession of the entire property from the date of purchase from six co-sharers there has been perfection of the title in respect of Kamalini’s interest i.e. the interest of the seventh co-sharer by adverse possession. 11. One of the fundamentals for establishing such a claim of adverse possession is that the possessor must possess the property of a person denying his title and claiming the same unto himself to the knowledge of that person. Therefore, it is said that the possession must commence with the element of illegality so as to ultimately mature into legal possession of the possessor after having continued to remain in possession openly, peacefully and uninterruptedly; all through denying title of the true owner obviously to his knowledge. Therefore, it is said that the possession must commence with the element of illegality so as to ultimately mature into legal possession of the possessor after having continued to remain in possession openly, peacefully and uninterruptedly; all through denying title of the true owner obviously to his knowledge. If the possessor does not accept the right of a person in respect of the property in question from the beginning denying his status to be having any nexus with the original owner and also the other successors, there can never arise a claim of acquisition of title over the property by possessing the same adverse to that particular person whose ownership is not admitted or rather not known. From the very beginning, the possession over the property of that person can never been taken to be with the intention of denying the title of that person. Such plea as the alternative one in the facts and circumstances as unravel from the case projected in the written statement, is not entertainable in the eye of law. If one person has to take that plea, it has to be pleaded and proved that at any subsequent point of time after having come to know of the fact that said person is the real owner of the property or having his interest in any manner therein, the possession commenced afresh by denying the title of that very person who came to be subsequently known and then with all other legal requirements through some positive overt acts to his knowledge. In the upshot of above discussion, I am in complete agreement with the submission of the learned counsel for the respondents that the first substantial question of law does not at all survive for being answered in these appeals. 12. Keeping the aforesaid in mind, this Court giving careful reading to the decisions mentioned under (i) to (iv) at para 8 cited by the learned counsel for the appellants, finds that in none of those such wholly divergent, inconsistent and legally irreconcilable pleas had been taken by the party claiming title over the property in respect of the interest of the left out co-owner. Therefore, this Court refrains from taking up exercise of discussing the principles laid down in the cited decisions and consider their applicability to the case in hand which has its own legal deficiency making the claim on that score as unacceptable. Therefore, this Court refrains from taking up exercise of discussing the principles laid down in the cited decisions and consider their applicability to the case in hand which has its own legal deficiency making the claim on that score as unacceptable. 13. For the above discussion and reasons and in the facts and circumstances of the case, the other substantial question of law is rendered redundant. Thus, the judgments and decrees passed by the courts below which have been impugned in these appeals get the seal of confirmation. 14. In the result, the appeals stand dismissed and in the facts and circumstances of the case without cost all throughout.