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2017 DIGILAW 859 (ORI)

Madhab Singh v. Bijay Kumar Mohanty

2017-08-09

D.DASH

body2017
JUDGMENT D. Dash, J. - The unsuccessful plaintiff of Civil Suit No. 106/150 of 2002-2003 on the file of learned Addl. District Judge, Fast Track Court, Rourkela has filed this appeal challenging the judgment and decree passed therein. The appellant as the plaintiff had filed the above noted suit arraigning the respondents as the defendants for declaration of his right, title and interest over the suit property and confirmation of his possession with further declaration that the decree passed in T.S. No. 5 of 2001 is a collusive and as such void and fraudulent not binding on him. The suit has been dismissed. The appellant is thus aggrieved by said dismissal of his suit by judgment dated 31.3.2006 followed by the decree dated 7.4.2006. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. Plaintiffs case is that he is in possession of Ac.0.20 dec. of land better described in the schedule of the plaint which is the subject-matter of the suit. According to his case, he has been in possession of the said suit land since the year 1981 on his own right claiming title and interest. The possession is said to be continuous and peaceful within the knowledge of the defendants and all others. It is stated that in the year 1981, the area was under-developed and the plaintiff finding the land lying vacant come to occupy the same and made necessary development over it by investing huge amount, finally establishing and running a bakery unit. The defendants at no point of time had ever objected to said possession of the suit land by the plaintiff nor even when he raised any such constructions over it and thereafter started the bakery unit. It is further stated that the plaintiff took electric connection to the said bakery unit standing over the property which he has been running. The plaintiff while thus in peaceful possession of the suit property together with the structures standing thereon and running bakery unit, it is alleged that all of a sudden to his utter surprise on 29.11.1994, the defendant No. 1 and some anti-social elements came over the suit property and asked the plaintiff to vacate the suit premises immediately. The plaintiff while thus in peaceful possession of the suit property together with the structures standing thereon and running bakery unit, it is alleged that all of a sudden to his utter surprise on 29.11.1994, the defendant No. 1 and some anti-social elements came over the suit property and asked the plaintiff to vacate the suit premises immediately. It is alleged that when the plaintiff refused to do so, they created disturbance which was pacified due to the intervention of some of the friends of the plaintiff and the worker then working in the bakery unit. In this way, the defendant No.1 could not be successful in evicting the plaintiff. For such high handed action, the defendant No.1 had reported the matter at the Police Out Post. It is further stated that the defendant No. 1 having remained silent thereafter for a long time again on 14.8.2002 came there and then asserting his ownership asked the plaintiff to vacate the suit premises when he further stated that the land has been recorded in his name. The plaintiff thereafter on enquiry came to know that said recording of the suit land in the name of the defendant No. 1 has been made pursuant to the judgment and decree passed in a suit i.e., T.S. No. 5 of 2001 of the Court of learned Civil Judge (Jr. Divn.), Rourkela. It is stated that the plaintiff was not a party to the suit which has been decreed under Order 12, Rule 6 of the Code of Civil Procedure. The plaintiff's further case is that the said suit is a collusive one which has been filed by the defendant No. 1 in collusion with the defendant No.2 and this plaintiff was intentionally not made a party to the same though he was in possession of the suit land. The plaintiffs claim is that having remained in possession of the suit land since the year 1981, all along till the date of the institution of the suit, he has perfected his title by way of adverse possession. He has specifically questioned that the defendant No. 1 has no right, title and interest over the property and the title of the true owner insofar as the suit land is concerned stood extinguished since long. He has specifically questioned that the defendant No. 1 has no right, title and interest over the property and the title of the true owner insofar as the suit land is concerned stood extinguished since long. Thus the plaintiff having been in possession of the suit land, he asserts that the defendants have no right to interfere in his peaceful possession. 4. The defendant No. 1 alone contested the suit. While traversing the plaint averments, the claim of the plaintiff to be in possession of the suit land has been denied. It is stated that the defendant No. 2 had purchased the property from the recorded tenant namely, Jakarias Munda under registered sale deed dated 10.11.1988 for valuable consideration of Rs. 2,000/-. It is further stated that the said Jakarias Munda being a member of Scheduled Tribes has obtained permission from the competent authority to sell the suit land. The defendant No. 1 has further advanced a claim of purchase of the suit land by him from defendant No.1 on 23.1.89 on payment of consideration of Rs. 3000/-. It is stated that pursuant to the said sale, physical possession of the suit land had been delivered by defendant No. 1 to him as also the original documents pertaining to the suit land. It is further stated that the defendant No. 1 has constructed a small house on the front portion of the suit land after his purchase. The defendant No. 1 has further pleaded that his right, title and interest over the suit land has been declared in Title Suit No. 5 of 2001 and accordingly, the suit land to have been recorded in his name in the record of right. It is his case that he had permitted the plaintiff and three others to remain in possession of one shed on the condition that they would vacate the possession as and when it would be so required. Specifically the plaint averments with regard to the plaintiff's possession of the suit land since the year 1981 has been denied. In summing up, the case of the defendant No. 1, it may be stated that he claims his right, title and possession over the suit land by virtue of his purchase from defendant No.2 on 23.1.1989 followed by a declaration to that effect in T.S. No. 5 of 2001. 5. In summing up, the case of the defendant No. 1, it may be stated that he claims his right, title and possession over the suit land by virtue of his purchase from defendant No.2 on 23.1.1989 followed by a declaration to that effect in T.S. No. 5 of 2001. 5. On the above rival case of the parties, the trial Court has framed the following issues:- i) Whether the plaintiff has got right, title and interest over the suit property? ii) Whether the decree passed in T.S. 5/2001 by the Civil Judge (Sr. Divn.), Rourkela, is a collusive one, void and fraudulent? iii) Whether the plaintiff has got any cause of action? iv) Whether the plaintiff is in possession of the suit land since, 1981? v) Whether the defendant No. 1 permitted the plaintiff to occupy one shed over the suit land? vi) Whether the suit is maintainable? vii) Whether the plaintiff is entitled to any other relief? viii) Whether the proper Court fees have been paid for the relief claimed? ix) Whether the plaintiff in alternative has possessory right over the suit property to maintain his possession? Taking up issue Nos. 1, 4, 5 and 9 together for decision, on analysis of evidence and addressing the contention raised by the parties as well as the legal position holding the field, the trial Court has first returned the answer which is extracted here in below:- "On the above consideration, I am inclined to hold that the plaintiff failed to establish his adverse possession over the suit land." 6. In addressing the possessory right of the plaintiff over the suit land, it has been said:- "xx xx xx xx xx xx xx the nature of possession of the plaintiff and period of possession and his ignorance about the actual lawful owner of the suit property and absence of evidence that the actual owner lived in the neighbourhood or acquiesced to acts of possession of the plaintiff un-grudgingly without any murmur of protest or objection, cannot be held to be sufficiently long to hold without any hesitation that the plaintiff is in settled possession over the suit land having possessory right to retain his possession over the suit property. At the end, it has been held that the plaintiff has got no right, title and interest or possession of the suit land and thus is not entitled to the reliefs claimed. At the end, it has been held that the plaintiff has got no right, title and interest or possession of the suit land and thus is not entitled to the reliefs claimed. The above answer being recorded on issue Nos. 1 and 9, 4 and 5, the trial Court has not proceeded further to dwell upon the entitlement of the reliefs claimed by the plaintiff on the declaration that the judgment and decree passed in T.S. No. 5 of 2001 is void, since according to the trial Court that would have not may any difference insofar as the plaintiff is concerned when his claim in support of the main prayer stands negated. 7. Learned counsel for the appellant submits that the trial Court has overlooked the overwhelming evidence on record with regard to the long standing possession of the plaintiff over the suit land since the year 1981 and also the subsequent acts of developing the property putting of constructions from time-to-time and continuing with a bakery unit over the same without objection from any quarter whatsoever all through this period. In view of that, he contends that the trial Court ought to have recorded the finding that the plaintiff has got the right, title and interest over the suit land as having been so acquired by way of adverse possession. According to him, the defendant No.1 has failed to prove that since the year 1981 onwards at any point of time either of the defendants were in possession of the suit land and that ought to have been kept in mind while considering the case of the plaintiff with regard to his claim of right, title and interest over the property. Alternatively, it is submitted that the plaintiff having been in possession of the property for such a long period which derives support from the evidence on record, the trial Court ought not have refused the relief of injunction to the effect that the plaintiff cannot be evicted without following due process of law. He also submits that in the meantime, the defendant No. 1 as the plaintiff has filed Civil Suit No. 163 of 2010 in the Court of learned Civil Judge (Sr. He also submits that in the meantime, the defendant No. 1 as the plaintiff has filed Civil Suit No. 163 of 2010 in the Court of learned Civil Judge (Sr. Divn.), Rourkela against the present plaintiff arraigning him as defendant therein for declaration of his right, title and interest over the suit land and for a decree for recovery of vacant possession of the suit land which is pending adjudication. This factum of filing of above noted suit by the present defendant No. 1 as the plaintiff against the present plaintiff being arraigned as defendant for the above relief stands admitted in course of hearing by the learned counsel for the respondent No. 1. A copy of the plaint of the said suit having been filed has been taken on record for perusal. 8. Learned counsel for the respondent No. 1 submits that the plaintiff in the case has utterly failed to establish his case of acquisition of right, title and interest by adverse possession. According to him, the ingredients required for the purpose of establishment of such a claim have neither been pleaded as required in law nor proved and even if for the sake of argument, said possession of the plaintiff for certain years is accepted that itself would not enure to benefit of getting a decree for declaration of his right, title and interest over the suit land. He further submits that in the particular case, the trial Court has not decided the claim of right, title and interest of defendant No. 1 insofar as the suit land is concerned which on the basis of evidence ought to have been so declared. He of course fairly contends that the defendant No. 1 has not advanced any counter-claim for declaration of his title over the suit land along with the recovery of vacant possession of the suit land from the plaintiff. In view of all these, he of course contends that those issues now stand to be decided in Civil Suit No. 163 of 2010 which has been filed by the present defendant No. 1 as the plaintiff which is being contested by the present plaintiff as the defendant. In view of all these, he of course contends that those issues now stand to be decided in Civil Suit No. 163 of 2010 which has been filed by the present defendant No. 1 as the plaintiff which is being contested by the present plaintiff as the defendant. So he contends that there remains no apprehension in the mind of the present plaintiff for being forcibly evicted in the hands of the defendant without following due process of law and that too only in case the present defendant No. 1 would succeed in Civil Suit No. 163 of 2010. 9. On the above rival submission, let me first of all take into consideration the decision of the trial Court on the question of right, title and interest of the plaintiff over the suit land as has been dealt under issue No. 1 and simultaneously judge the sustainability of the said finding as returned by the trial Court. The settled position of law is that the plaintiff has to stand on his own in a suit of this nature so as to succeed in getting the reliefs as prayed for and he cannot take the advantage of the weakness of defendant's case nor he can succeed on the failure of the defendant in establishing his defence. Insofar as the claim of right, title and interest over the suit property is concerned, the plaintiff's case is based on acquisition of the same by adverse possession. Attention being given to the pleading, it seen that the plaintiff at para 3 of the plaint has stated that he began to possess the suit schedule property from the year 1981 on his own right, title and interest peacefully and continuously to the knowledge of whole world including the defendant when the land was fallow and in an under developed condition. It is further stated that he thereafter the plaintiff developed the property by spending huge amount. The pleading is found to be not up to the mark as per the legal requirement for projecting such a claim in laying the foundation. It is not stated that when the plaintiff entered into possession over the property, he did know either of the defendants to be the owner of the same or even the erstwhile owner. So his beginning to possess by denying defendants title is not stated. It is not stated that when the plaintiff entered into possession over the property, he did know either of the defendants to be the owner of the same or even the erstwhile owner. So his beginning to possess by denying defendants title is not stated. If this is not pleaded the question does not arise that such possession was in denial of the title of the true owner and to his knowledge. If a person does not know as to who is the owner the property, his mere entry to the property and beginning to possess the same for any length of time whatever it may be, cannot mature to the claim of title over the suit land. There remains no animus behind the possession i.e., animus possidendi is not seen which is most important factor. Further it has nowhere been stated in the plaint that even at any point of time after entering into the possession over the suit land, the defendant No. 1 was make aware by any such act and conduct in specific that such possession was in denial of his title over the property and based on a claim of title over the same by the plaintiff. The settled position of law is that mere long and continuous possession without any interruption does not entitle a person to a decree for declaration of his right, title and interest over the property as to have been acquired by the adverse possession so as to say that the right, title and interest of the true owner stood extinguished thereby after completion of the required period. Important ingredient is that the possession must be as the owner of the property exercising all the right of ownership over the same by denying the title of the true owner to his knowledge. In view of the above pleadings even without touching the evidence on I record and accepting for a moment that the plaintiff has been in possession of the suit land in question since 1981, the finding of the trial Court that the plaintiff has not been able to establish his right, title and interest over the property has to receive affirmation. However, it is also seen that the trial Court has analysed the evidence with regard to possession in great detail and has also found the plaintiff to have stated that he had no knowledge about the ownership of the property in question when he made the entry and that only in the year 1986, he came to know that it stood recorded in the name of one Jakarias Munda. That apart this plaintiff has proved Ext. 1 the certified copy of the sale deed executed by Jakarias Munda in favour of defendant No. 2 and then he has stated to have first of all come to know about such sale being made in the year 1971. So the trial Court has taken a view that this plaintiff entering into possession over the suit property was not having the knowledge that Jakarias Munda was the owner of the same at , that point of time and also subsequent change by way of ownership from the hands of Jakarias to defendant No. 2 and from the hands of defendant No. 2 to the hands of defendant No. 1. Referring to ratio of some decisions of this Court as also the Apex Court, the trial Court has negated the claim of the plaintiff to have acquired title of the suit land by adverse possession by not accepting the residential certificate and the notice of the Food Inspector as also the Consumer Card issued by the OEB concerning his bakery unit vide Exts. 7, 8 and 9 respectively having no nexus with the suit land. In view of the above, this Court even on independent assessment of the evidence in the backdrop of the pleadings as discussed is not in a position to accord any disagreement with regard to the finding of the trial Court that the plaintiff has failed to establish his acquisition of right, title and interest over the suit land by adverse possession. 10. Next the trial Court has dealt under issue No. 9 with regard to possessory right of the plaintiff as already stated in para 6. The trial Court has also negated such claim holding the plaintiffs possession to be not falling within the ambit of settled position of law so as to entitle him to get a decree for injunction. 10. Next the trial Court has dealt under issue No. 9 with regard to possessory right of the plaintiff as already stated in para 6. The trial Court has also negated such claim holding the plaintiffs possession to be not falling within the ambit of settled position of law so as to entitle him to get a decree for injunction. In view of the negation of the claim of the plaintiff and denial of grant of above reliefs as above, the trial Court has not answered the issue relating to right; title and interest of defendant No. 1 as claimed to have flown to him by virtue of decree passed in T.S. No. 5 of 2001. However, the present state of affair is that the defendant No. 1 has already instituted a suit i.e., C.S. No. 163 of 2010 in the Court of learned Civil Judge (Sr.Divn.), Rourkela and he has claimed the following reliefs against the present plaintiff in respect of the same subject-matter:- i) decree for recovery of right, title and interest over the suit land; ii) decree for recovery of vacant possession of the suit land. The said suit is based on the assertions that the present plaintiff who is the defendant in the said suit has no right, title and interest over the property and as such the right to continue, with the same. Therein this defendant No. 1 has sought for vacant possession from the present plaintiff based on his title over the suit land and as such the right to possess. The defendant No. 1 in his subsequent suit filed much after the impugned decision in the suit by the trial Court has only to stand in case he would be able to establish his claim of right, title and interest over the suit property and then the next question would arise as to his right to recover the possession from the same from the present plaintiff who is the defendant in that said suit. So herein this suit even if the trial Court has refused to grant of relief of injunction to protect possession of the present plaintiff insofar as the suit land is concerned, by holding his possession to be not falling within the ambit of settled possession, yet the fact remains that the said possession of the suit land by the plaintiff would only get disturbed by the defendant No. 1 in the event a decree to that effect is passed in C.S. No. 163 of 2010. Thus at present there survives no reason for going to further examine the sustainability of the finding of the trial Court with regard to the denial of the relief of injunction to the present plaintiff by not protecting his possession over the suit land till eviction by due process of law. The possession of the suit land whether its lawful or unlawful is with the plaintiff as per the case of the defendant No. 1 as laid in the plaint in C.S. No. 163 of 2010 and that is now sought to be recovered through Court after the adjudication of the later suit. The matter now is thus merely academic. In the said suit, the title of the defendant No. 1 insofar as the suit land is concerned as claimed to have been acquired from the owner defendant No. 2 who had purchased the property from Jakarias Munda followed by the decree in T. S. No. 5 of 2001 is the subject-matter of adjudication. 11. Even in view of the dismissal of the present suit by not granting the relief of injunction protecting possession of the plaintiff until his eviction by following due process of law by the defendants, there remains no such apprehension of dispossession of the present plaintiff at the hands of defendants till the decision is rendered in C.S. No. 163 of 2010. The eviction of plaintiff from the suit land thus would await said decision in C.S. No. 163 of 2010 filed by the defendant No. 1. The eviction of plaintiff from the suit land thus would await said decision in C.S. No. 163 of 2010 filed by the defendant No. 1. In the wake of aforesaid, this Court while affirming the finding of the trial Court on issue No. 1 that the plaintiff has failed to establish his claim of right, title and interest over the suit property, no more finds it necessary to answer the other issue in view of the later development of institution of Civil Suit No. 163 of 2010 by defendant No. 1 for the reliefs as afore stated. 12. The above discussion and reasons thus lead to the dismissal of the appeal. In the facts and circumstances, there shall be no order as to cost.