Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 830 (ORI)

Banambar Sahoo v. Panu Das

2017-08-04

A.K.RATH

body2017
JUDGMENT : Dr.A.K.RATH, J. The defendants are the appellants against a confirming judgment. 2. The respondent as plaintiff instituted O.S.No.4 of 1983-I in the court of the learned Munsif, Banpur for eviction of the defendants from the suit land, recovery of possession, mandatory and permanent injunction. The case of the plaintiff is that he is the owner in possession of the suit land. The suit land situates towards backside of his residential house. The same is intervened by the “Simabandha”. There are trees standing over the same. On 25.2.1983, the defendants dug foundation for construction of a latrine over a portion of the suit land. The plaintiff objected. The defendants wanted to get the land measured in their presence. The plaintiff applied for demarcation of the suit land to the Tahasildar. The Tahasildar deputed the R.I., Banpur to measure the land. But then the defendants did not cooperate with the measurement. With this factual scenario, he instituted the suit seeking the aforesaid reliefs. 3. The defendants entered appearance and filed written statement. It is pleaded that the plaintiff is not the owner in possession of the suit plot no.69. Though the suit plot has been recorded in favour of the plaintiff, he is not in possession of the same since long. The suit plot situates on the side of river Salia. There exists “Simabandha”, which is a Government land to protect the houses of the people of Banpur town from the excess rain waters flowing through that river. In the west of the plaintiff’s house, there is a passage. The same is used by the people to go to the river. Their mother Puni Bewa had purchased sabik plot no.91, 92 and 99, which corresponds to hal plot nos.64 and 70. She purchased the land on 29.7.1942 and 19.7.1951 respectively. Their residential house situates over hal plot no.64 and Plot no.70. The suit plot no.69 is adjacent to plot nos.64 and 70. Their further case is that they are in possession of hal plot no.70 as well as 69 since the date of purchase. They reclaimed plot no.69 and plot no.70 and raised vegetables. The plaintiff never objected the possession of the defendants over the suit plot. Thus, the defendants being in possession of the suit plot for about 40 years, they acquired title to it by way of adverse possession. 4. They reclaimed plot no.69 and plot no.70 and raised vegetables. The plaintiff never objected the possession of the defendants over the suit plot. Thus, the defendants being in possession of the suit plot for about 40 years, they acquired title to it by way of adverse possession. 4. On the inter se pleadings of the parties, the learned trial court framed six issues. To prove the case, the plaintiff had examined four witnesses and on his behalf, six documents had been exhibited. The defendants had examined five witnesses and on their behalf, seven documents had been exhibited. The learned trial court negatived the plea of adverse possession and decreed the suit. The unsuccessful defendants filed Title Appeal No.10 of 1984 in the court of the learned Subordinate Judge, Khurda, which was eventually dismissed. 5. The appeal was admitted on the following substantial questions of law enumerated in ground nos.2, 3 & 7 of the appeal memo. The same are: “2. For that the suit is barred U/s.27 of the Indian Limitation Act and the learned Courts below have erred in law in not holding that the suit is barred in view of the fact that the defendants are in possession of the suit properties for more than 12 years. 3. For that the learned Courts below should have held that the plaintiff’s right is extinguished particularly when the defendants are in possession for more than 12 years and plaintiff not having filed the suit within the period prescribed U/s.27 of the Indian Limitation Act. 7. For that the evidence adduced on the side of defendants regarding their possession over the suit for more than 12 years is corroborated by the evidence of P.W.2 as well as by the report of the Survey Knowing Commissioner who was deputed by the learned Trial Court on the direction of the appellate court who while hearing the appeal on the first instance sent the records to the trial court for deputing a Survey Knowing Commissioner.” 6. Heard Mr.P.K.Khuntia, learned Advocate for the appellants and Mr.S.K.Samantaray, learned Advocate for the respondent. 7. Mr.Khuntia, learned Advocate for the appellants argued with vehemence that the defendants are in possession of the suit land for more than 12 years. The suit was not filed within prescribed period of limitation. The suit is barred under Section 27 of the Indian Limitation Act. 7. Mr.Khuntia, learned Advocate for the appellants argued with vehemence that the defendants are in possession of the suit land for more than 12 years. The suit was not filed within prescribed period of limitation. The suit is barred under Section 27 of the Indian Limitation Act. The courts below ought to have held that the plaintiff’s right has been extinguished. He further contended that the defendants adduced evidence that they are in possession of the suit land for more than 12 years. The same has been amply corroborated by the evidence of P.W.2 as well as report of the Survey Knowing Commissioner. 8. Per contra, Mr.Samantray, learned Advocate for the respondent submitted that the defendants failed to prove that they are in possession of the suit land for more than 12 years. The courts below disbelieved the plea of adverse possession. 9. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. 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”. 10. Mere possession of the suit land for long time is not suffice to hold that the defendant has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 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. Nonuse 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. Nonuse 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. On the anvil of the decisions cited supra, the instant appeal may be examined. The defendants pleaded that their mother purchased sabik plot nos. 91, 92 and 99 by means of registered sale deeds dated 29.7.1942 and 19.7.1951 respectively. The same corresponds to hal plot nos.64 and 70. Their residential house stands over plot no.64. Both the plots are in compact area. According to the defendants, the suit plot was lying fallow. They made it fit for cultivation. They are in possession of the same. When the property was purchased by their mother the defendants were minors. In fact on the date of first purchase one of the defendants was not born. The date of entry into the suit land has not been mentioned. The defendants failed to establish that they were in possession of the suit land for more than 12 years. When the property was purchased by their mother the defendants were minors. In fact on the date of first purchase one of the defendants was not born. The date of entry into the suit land has not been mentioned. The defendants failed to establish that they were in possession of the suit land for more than 12 years. The courts below, on an anatomy of the pleadings and evidence on record, negatived the plea of adverse possession. There is no perversity or illegality in the same. The substantial questions of law are answered accordingly. 13. The Second Appeal, being devoid of any merit, is dismissed. No costs.