Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 252 (ORI)

Guru Charan Samal v. Gananath Samal

2018-03-15

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title and recovery of possession. 2. The case of the plaintiffs is that plaintiff no.1 and defendant no.2 jointly purchased Ac.0.03 dec. 2½ links of land from one Radhu Sahu by means of a registered sale deed dated 1.5.1942 for carrying on business. After purchase, defendant no.2 made a proposal to the plaintiff no.1 to alienate his half share. Plaintiff no.1 agreed. Thereafter defendant no.2 sold his half share to plaintiff no.1 by means of an unregistered sale deed dated 30.4.1947 for a consideration of Rs.100/-. Since then the plaintiffs are in possession of the suit land. Plaintiff no.1 had constructed a house over the suit land in the year 1947. The house was damaged in the cyclone. Thereafter plaintiff no.1 shifted his business to other place. The plaintiffs are in possession of the entire suit land. They are raising vegetables over the same. During major settlement, Yadast was prepared in the names of the plaintiffs. They are paying rent. The homestead land of defendant no.1 is adjacent to the suit land. He wanted to purchase the same. Since plaintiff no.1 did not agree, he forcibly constructed a thatched house over the suit land on 7.8.1976. Defendant no.1 disclosed that he had purchased the suit land from defendant no.2 by means of a registered sale deed dated 18.8.1973. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. Defendant no.1 filed written statement pleading, inter alia, that after purchase Ac.0.03 dec. 2½ links of land in the year 1942, plaintiff no.1 and defendant no.2 constructed a house over the same and carried on business jointly till 1960. The house was damaged by high flood. Thereafter they divided the land amicably. Defendant no.2 got the northern half i.e., the suit land and plaintiff no.1 got the southern half. The specific case of defendant no.1 is that in spite of amicable partition, neither plaintiff no.1 nor defendant no.2 possessed the same. The land was lying fallow. He is in possession of the suit land to the knowledge of both plaintiff no.1 and defendant no.2 and, as such, acquired title by way of adverse possession. He has also purchased the same on 18.8.1973 by means of registered sale deed from defendant no.2. The land was lying fallow. He is in possession of the suit land to the knowledge of both plaintiff no.1 and defendant no.2 and, as such, acquired title by way of adverse possession. He has also purchased the same on 18.8.1973 by means of registered sale deed from defendant no.2. Thereafter he constructed a house over the same and is residing therein. He has right, title and interest over the suit land. 4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court came to hold that the plaintiffs had not acquired any title. The sale deed, vide Ext.2, is an unregistered deed. No consideration was passed. It negatived the plea of the plaintiffs that they had perfected title by way of adverse possession. It further held that defendant no.1 had not acquired title over the suit land exclusively. Held so, it decreed the suit in part declaring the right, title and interest of plaintiff no.1 in respect of his -/8/- annas share jointly with defendant no.1. Feeling aggrieved, the plaintiffs challenged the judgment and decree before the learned Subordinate Judge, Kendrapara in Title Appeal No.16 of 1978, which was eventually dismissed. 5. The appeal was admitted on the following substantial questions of law: “1. Whether Ext.2 has been duly proved. 2. Whether the appellants have acquired title in respect of the suit land by adverse possession.” 6. Heard Mr. Buddhiram Das, learned Advocate on behalf of Mr. N.C. Pati, learned Advocate for the appellants and Mr. D.P. Mohanty, learned Advocate on behalf of Mr. B.H. Mohanty, learned Advocate for the respondents. 7. Mr. Das, learned Advocate for the appellants submits that Ext.2 having been marked without objection, the courts below committed a manifest illegality and impropriety in not placing reliance upon the same. Defendant no.1 has no locus standi to challenge the sale deed, Ext.2, on the ground that no consideration was passed. He further submits that the plaintiffs are in exclusive possession of the entire suit property and, as such perfected title by way of adverse possession. 8. Per contra, Mr. Mohanty, learned Advocate for the respondents submits that defendant no.2 alienated his share in favour of defendant no.1 for a valid consideration and, thereafter delivered possession. Defendant no.2 also supported the stand of defendant no.1. 8. Per contra, Mr. Mohanty, learned Advocate for the respondents submits that defendant no.2 alienated his share in favour of defendant no.1 for a valid consideration and, thereafter delivered possession. Defendant no.2 also supported the stand of defendant no.1. The courts below concurrently held that plaintiff no.1 and defendant no.1 has 50% share over the suit property. 9. The plaintiffs’ claim of title to the property and adverse possession are in terms contradictory. 10. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others Vrs. Mirza Abdul Gaffer and another, (1996) 1 SCC 639 held: “As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” 11. The apex Court in the case of L.N. Aswathama and another v. P. Prakash (2009) 13 SCC 229 held : “To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” (Emphasis laid) 12. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” (Emphasis laid) 12. Mere marking of document does not dispense with its proof as held by the apex Court in the case of Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865 . The plaintiffs assert that defendant no.2 had executed an unregistered sale deed, vide Ext.2, in favour of plaintiff no.1. Valuation of the suit property was Rs.100/-. Under Section 17 of Registration Act, the same had to be registered compulsorily. No title has been passed. Adverse possession is not a pure question of law but a blended one of fact and law. On an anatomy of the pleadings and evidence on record, both the courts below negatived the plea of 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. There shall be no order as to costs.