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2017 DIGILAW 977 (ORI)

Pabana Bhola @ Sasmal v. Sheranti Bewa

2017-09-04

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Defendant no.5 is the appellant against an affirming judgment. 2. Gadadhar Samal, predecessor-in-interest of the respondent no.1 and father of the respondent nos.2 to 4 as plaintiff, instituted T.S. No. 140/270 of 1988/81 in the court of the learned Additional Munsif, Puri for declaration of their right, title, interest and recovery of possession and permanent injunction impleading the appellant as well as respondent nos.9 to 16 as defendants. 3. The following genealogy would show the relationship of the parties. Late Bhagi Sasmal Late Dhani Sasmal Late Hari Late Loka Late Khati Gadadhar Sasmal (plaintiff) Sanei (D 1) late Panu Nisamani (D 2) Late Danei Late Rajan Purna Chandra (D 3) Ranga (D 4) The case of the plaintiff is that he is the son of Hari Sasmal. Defendant no.1 is the son of one Sanei Samal and defendant no.2, Nisamani is the widow of one Panu Sasmal. Sanei and Panu are two brothers being sons of Loka. Purna Chandra, defendant no.3 is the son of Danei Sasmal. Ranga, defendant no.4 is the widow of Ranjan Sasmal. Danei and Ranjan are the sons of Khati. Defendant no.5 is not related to family. The Hal Settlement record of right was published in the year 1928. In the Sabak Settlement record of right, the suit schedule land has been recorded in the name of Hari, Loka and Khati with a note of possession of their respective shares. There is an amicable partition between the parties. The eastern side of the land has been allotted to Hari and the western side to Loka and Khati. Both parties have constructed their residential complex over the same and residing thereon for the last 40 to 45 years. The plaintiff is in possession of 50% of the suit schedule property. While matter stood thus, the Hal Settlement record of right has been wrongly published in the name of the plaintiff and his co-sharers along with the name of defendant no.5. Defendant no.5 has no semblance of right, title and interest over the suit land. Taking advantage of wrong entry in record of right, he tried to disturb the possession of the plaintiff. With this factual scenario, the plaintiff instituted the suit seeking the reliefs mentioned supra. 4. The defendant nos.1 to 4 were set ex parte. Defendant no.5 has no semblance of right, title and interest over the suit land. Taking advantage of wrong entry in record of right, he tried to disturb the possession of the plaintiff. With this factual scenario, the plaintiff instituted the suit seeking the reliefs mentioned supra. 4. The defendant nos.1 to 4 were set ex parte. The defendant no.5, appellant herein filed a written statement contending, inter alia, that Gadadhar Sasmal, plaintiff is not the natural born son of Hari Sasmal. Hari was issueless. Hari adopted Bula Sasmal, his father. The plaintiffs are not in possession of the suit property. They have no right, title and interest over the same. He is in peaceful, continuous possession of the property with hostile animus to the plaintiffs for more than twelve years and as such perfected title by way of adverse possession. It is apt to state here that during pendency of the suit, the sole plaintiff and defendant no.1 died, whereafter their legal heirs have been substituted. 5. On the, inter se, pleadings of the parties, the learned trial court struck nine issues out of which, the issue nos.5 & 6 are pivotal. The same quoted below:- “(v) Is the plaintiff son of Khati Sasmal or Hari Sasmal. (vi) Is the father of the defendant no.5, the adopted son of Hari Sasmal.” 6. On a threadbare analysis of evidence on record as well as pleadings, the learned trial court came to hold that Gadadhar Sasmal, the deceased plaintiff and the father of Dinabandhu Sasmal, the plaintiff no.1-Kha, is the natural born son of Hari Sasmal and Bula. The father of defendant no. 5 is not the adopted son of Hari Sasmal. The entry made in the record of right in Ext.3 is wrong. It negatived the plea of defendant no.5 with regard to adverse possession. Held so, it dismissed the suit. Defendant no.5 appealed, the same was eventually dismissed. 7. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground no.2 (b) & (g) of the appeal memo. The same are:- “(b) Whether on the presumptive value of correctness of the entries in the R.O.R. (Ext.3) would be no effect in the absence of evidence to disprove the same ? 7. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground no.2 (b) & (g) of the appeal memo. The same are:- “(b) Whether on the presumptive value of correctness of the entries in the R.O.R. (Ext.3) would be no effect in the absence of evidence to disprove the same ? (g) Whether on the basis of the public documents such as the Record of Rights and voters list and the rent receipts suggesting prima facie prove of physical possession of defendant no.5 and his father from a particular time, the courts below are correct in holding that the defendant no.5 has failed to prove from what day he has started to possess the suit property?” 8. Heard Mr.Ayushman Mahanta, learned advocate on behalf of Mr. A.R. Dash, learned advocate for the appellant and Mr. Budhiram Das, learned advocate on behalf of Mr. Pati, learned advocate for the respondents. 9. Mr. Mahanta, learned advocate for the appellant submits that the defendant no.5 is the son of Bula Bhola @ Sasmal. Bula Sasmal is the adopted son of Hari Sasmal. It was a case of ancestral adoption. Defendant no.5 examined four witnesses to show that his father was the adopted son of Hari Sasmal. Both the courts below committed a manifest illegality and impropriety in negativing the plea of adverse possession. He further submits that the record of right under Ext.3 has been published in the name of Bula Sasmal in the year 1977. Ext.1, record of right has been published in the name of Bula Sasmal. Ext.a and b has been published in the name of Bula Sasmal in the year 1977. Ext.C, C/1 to C/3, the voter lists have been published in the year 1975, 1980, 1966 and 1970 respectively. In all the documents, Bula Sasmal has been described as the son of Hari Sasmal. The said documents, if taken into consideration, the conclusion is irresistible that Bula Sasmal is the adopted son of Hari Sasmal. He further submits that the defendant no.1 is in peaceful and continuous possession over the suit land for more than the statutory period and as such, he has perfected title over the suit land by way of adverse possession. 10. Per contra, Mr. Das, learned advocate for the respondents submits that there is no pleading as to when Bula Sasmal was adopted to defendant no.5. 10. Per contra, Mr. Das, learned advocate for the respondents submits that there is no pleading as to when Bula Sasmal was adopted to defendant no.5. There is no giving and taking ceremony. The witnesses examined by the defendant no.5 failed to prove that Bula Sasmal was the adopted son of Hari Sasmal. Record of right neither creates title nor extinguishes title. 11. There is no pleading as to when Bula Sasmal, father of the defendant no.5 was adopted to Hari Sasmal. There was no giving and taking ceremony. The witnesses on behalf of defendant no.5 failed to prove that Bula Sasmal was the adopted son of Hari Sasmal. Merely because the record of right has been published in the name of Bula Sasmal, no inference can be drawn that Bula Sasmal was the adopted son of Hari Sasmal. The record of right neither creates title nor extinguishes the title. The voter list is not a substitute for proof of adoption. 12. The plea of adverse possession is not a pure question of law, but a blended one of fact and law there is neither pleading nor evidence on record that the defendants perfected their title by way of adverse possession. Both the courts below negative the plea of adoption as well as adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.