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2017 DIGILAW 1403 (ORI)

Chandra Bewa v. Kamal Lochan Naik

2017-12-05

A.K.RATH

body2017
JUDGMENT : A.K.Rath, J This is a defendants’ appeal against affirming judgment. 2. Plaintiffs-respondents instituted the suit for declaration of right, title and interest and permanent injunction. The case of the plaintiffs was that Kandari is the mother of Dinabandhu, original plaintiff and cousin sister of Mukunda Sahu, grandfather of Adikanta Sahu, defendant no.2. Pandu Sahu, father of the defendant no.2 gave the suit land to Kandari out of love and affection for construction of cowshed, well, kitchen and garden. Since 1951-52, the plaintiff and her mother amalgamated the suit land with their homestead. Pandu and his sons had given their consent in the Yadast register to record the suit land in the name of the plaintiff. Accordingly draft parcha and R.O.R. were prepared in his name. While matter stood thus, on 30.06.1983, the defendant nos.2 to 4 trespassed upon the land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. It is apt to state here that during pendency of the suit, the original plaintiff and defendant no.1 died and their legal representatives were substituted. 3. The defendants resisted the claim of the plaintiffs stating inter alia that the suit land has never been given by Pandu to Kandari. They are in possession of the suit land. The suit land was not in possession of the plaintiffs. The alleged R.O.R. published in favour of the plaintiffs is erroneous one. 4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the original plaintiff and thereafter his sons are in possession of the suit land since 1952. No gift deed has been executed. Plaintiffs are in possession of the land since 1952 and acquired title by way of adverse possession. Held so, it decreed the suit. Felt aggrieved, the defendants filed T.A. No. 03 of 1988 before the learned Sub-ordinate Judge, Deogarh, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial question of law:- “Whether the courts below considered the ingredients of valid gift as stipulated in Sec.123 of the Transfer of Property Act to accept the plea of oral gift ?” 6. Heard Mr. S.P. Mishra, learned Senior Advocate along with Ms. Neha Sharma, learned counsel for the appellants and Mr. A. Routray for the respondents. 7. Mr. Heard Mr. S.P. Mishra, learned Senior Advocate along with Ms. Neha Sharma, learned counsel for the appellants and Mr. A. Routray for the respondents. 7. Mr. Mishra, learned Senior Advocate for the appellants argues with vehemence that the transfer was oral in nature. The same does not satisfy the mandate of law contained in Sec.123 of the Transfer of Property Act (in short, “the T.P. Act”). He further submits that the courts below are not justified in holding, inter alia, that the plaintiffs have perfected their title by way of adverse possession. 8. Per contra, Mr. Routray, learned counsel for the respondents submits that the defendants have admitted the oral gift before the settlement authority, whereafter their possession has been noted in the Yadast. The plaintiffs are in possession of the suit land peacefully, continuously and with hostile animus to the defendants and as such, perfected title by way of adverse possession. 9. Both the courts concurrently held that no gift deed had been executed. The suit land was not gifted by a valid instrument. Since both the courts held that there is no gift deed, the substantial question of law does not arise for consideration. 10. The next question arises as to whether the plaintiffs have perfected title by way of adverse possession. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. 11. 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. 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) 12. The date of entry into the suit land by the plaintiffs has not been mentioned in the plaint. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs 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. The findings of the courts below that the plaintiffs have perfected title by way of adverse possession are perverse. 13. A priori, the impugned judgments are set aside. The appeal is allowed. Consequentially, the suit is dismissed. No costs.