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2017 DIGILAW 1483 (ORI)

Chhabi Bagh v. Saila Bagh (dead)

2017-12-19

A.K.RATH

body2017
JUDGMENT : A.K.Rath, J. This is a defendants’ appeal against confirming judgment. 2. Pitambara Bagh, predecessor-in-interest of the respondents, as plaintiff instituted a suit for permanent injunction. Case of the plaintiffs was that the suit land is their ancestral property. Defendant having no semblance of right, title and interest over the same created disturbance. 3. Defendant entered contest and filed a written statement pleading, inter alia, that after death of Bhima Bagh, plaintiff no.1 became the karta of the family. He alienated the suit land on 21.3.1974 to the defendant by means of an unregistered sale deed for a consideration of Rs.230/-. Possession of the land was delivered to him. He is in possession of the suit land peacefully, continuously and with hostile animus to the plaintiffs since the date of purchase and as such, perfected title by way of adverse possession. In the consolidation operation, his note of possession has been recorded. 4. Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence. Learned trial court came to hold that there is a discrepancy in the evidence of the defendant with regard to delivery of possession of the suit land. The document in question vide Ext.A is not a sale deed. It is a raiyati nama. The same was executed for a piece of land extending in East-West, 55 cubits and in North-South, 45 cubits out of the ancestral ‘Bhogra’ land locally known as ‘Gaontara Mal’ for Rs.230/-in favour of Saukar Chhabi Bagh. Ext. A does not reveal the legal necessities for which the suit land was transferred in favour of the defendant. There is no specific terms and conditions in Ext.A regarding delivery of possession. The consolidation authorities have decided the right, title and interest in favour of the plaintiffs and accordingly issued ROR vide Ext.1. The plaintiff no.1 has not executed any sale deed in favour of the defendant. No delivery of possession was made. The defendant has not perfected title by way of adverse possession. Held so, it dismissed the suit. Unsuccessful defendant filed T.A No.21 of 1994 in the court of the learned Civil Judge (Senior Division), Sonepur, which was eventually dismissed. 5. The second appeal was admitted on the substantial question of law enumerated in Ground Nos.1,3 and 5 of the appeal memo. The same are – “1. Held so, it dismissed the suit. Unsuccessful defendant filed T.A No.21 of 1994 in the court of the learned Civil Judge (Senior Division), Sonepur, which was eventually dismissed. 5. The second appeal was admitted on the substantial question of law enumerated in Ground Nos.1,3 and 5 of the appeal memo. The same are – “1. Whether the defendant perfected his title in respect of the suit land by virtue of adverse possession in view of the oral evidence of D.W.1 to 5 coupled with Ext.A, Ext.B, the land register Ext.C series (rent receipts) Ext.D notice in execution case ? 3. Whether the learned courts below committed serious illegality in holding that the land mentioned in Ext.A does not correspond to the suit land in view of the evidence of P.W.1 and 2 without keeping in mind that after the consolidation operation and preparation of chakas the boundary is to be changed ? 4. Whether the courts below are justified in discarding the unassailed testimonies of D.Ws on the ground of interestedness and if such finding is perverse and liable to be interfered with under Sec.100 CPC ? 6. Heard Mr. Budhiram Das, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr. T.R. Meher, learned counsel for the respondents. 7. Mr. Das, learned counsel for the appellant submits that both the courts committed manifest illegality in holding, inter alia, that Ext.A is a raiyati nama. Ext.A is the sale deed. Plaintiff no.1 executed the sale deed in favour of the defendant for a consideration of Rs.230/-. Possession of the land was duly delivered to the defendant. Since the date of purchase, the defendant is in possession of the land peacefully, continuously and with hostile animus to the plaintiffs and as such, perfected title by way of adverse possession. In the consolidation ROR, note of possession of the defendant has been reflected. 8. Per contra, Mr. Meher, learned counsel for the respondents submits that adverse possession is a mixed question of fact and law. Both the courts concurrently held that the defendant has not perfected title by way of adverse possession He further submits that Ext.A is not a sale deed. There is no description of the property in Ext.A. 9. On a conspectus of Ext.A, it is evident that the same is not a sale deed. Both the courts concurrently held that the defendant has not perfected title by way of adverse possession He further submits that Ext.A is not a sale deed. There is no description of the property in Ext.A. 9. On a conspectus of Ext.A, it is evident that the same is not a sale deed. Since the plaintiff No.1 was in need of money, he executed a raiyati patta in an unstamped paper. Curiously, description of the property has not been mentioned. Neither khata number nor plot number, area, mouza and district have been mentioned. Thus reliance placed on Ext.A by the defendant is totally misplaced. 10. The next question crops up as to whether defendant has perfected title by way of adverse possession? Adverse possession is not a pure question of law, but a blended one of fact and law. 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. 11. 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 date of entry into the suit land has not been mentioned. On an anatomy of the pleadings and evidence on record both the courts concurrently held that the defendant has not perfected title by way of adverse possession. There is no perversity in the findings of the courts below. 12. The matter may be examined from another angle. The mouza where the suit land falls came under the purview of consolidation operation. The consolidation authorities have adjudicated the right, title and interest of the plaintiff no.1, recorded the land in his name and accordingly issued patta in his favour. The substantial questions of law are answered accordingly. 13. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.