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2018 DIGILAW 308 (ORI)

Nayan Majhi v. Chhita Majhiani

2018-03-26

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This is a defendants’ appeal against confirming judgment. 2. Plaintiffs-respondents instituted the suit for declaration of right, title and interest over ‘A’ schedule land and recovery of possession. The case of the plaintiffs was that Arjun Majhi, father of plaintiff no.1, was the original owner of the suit land. He executed a registered gift deed dated 31.8.50 of all lands including the suit schedule land in favour of plaintiff no.1 and her elder sister Dulgu Majhiani. The gift deed was acted upon. Dulgu Majhiani was a spinster. She died 25 years back. Thus, plaintiff no.1 became the owner of the suit land. Plaintiff no.2 is her elder son. It was further pleaded that defendant no.1 initiated Crl. Misc. No. 100/81 before the Executive Magistrate on 26.5.81. The said case was disposed of on 15.2.83 in his favour. The order passed by the Executive Magistrate is illegal. Defendant no.1 made a false assertion in the petition. Basi, wife of Arjun Majhi, had not executed any gift deed in favour of any person. Dasa had not performed the obsequies of Arjun and Basi. A cloud of suspicion is raised over their title. With this factual scenario, they instituted the suit seeking the relief’s mentioned supra. 3. The defendants entered contest and filed a written statement. The specific case of the defendants was that they denied about the transaction that Arjun had not executed any gift deed in favour of plaintiff no.1 and her sister Dulgu in the year 21.8.1950. Arjun died in the year 1951 without a male issue. As per Santal custom, the female member cannot perform the obsequies and a male person from out of the existing near relations has to perform the obsequies. After the death of Arjun, a Panchayat was convened. Dasa Majhi, father of the defendants, was asked to perform the obsequies of Arjun. Dasa in obedience to the said decision performed the obsequies and in lieu thereof he got the suit lands from the plaintiff no.1 and her mother Basi on the strength of an unregistered gift deed dated 31.12.1951 executed by them. Since then, he is in possession of the said land. They are in possession of the land openly, peacefully and continuously since the year 1951 and as such perfected title by way of adverse possession. 4. Since then, he is in possession of the said land. They are in possession of the land openly, peacefully and continuously since the year 1951 and as such perfected title by way of adverse possession. 4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court came to hold that the plain paper unregistered gift deed, Ext.A, has not been proved by the defendants and doubted the genuineness. It negatived the plea of the defendants that they have perfected title by way of adverse possession. Held so, it decreed the suit. The unsuccessful defendants filed T.A. No.33 of 1987 before the learned District Judge, Mayurbhanj, Baripada, which was eventually dismissed. It is apt to mention here that during pendency of the second appeal, the defendant nos.2 and 3-appellant nos.2 and 3 died. The legal heirs have been substituted. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 and 2 of the memorandum of appeal. The same are : “1. Whether the learned District Judge is correct in law in holding that the defendants failed to aver and prove the assertion of hostile though they are in possession of the suit land by virtue of invalid gift deed (Ext-A) dated 31.12.1951 in order to acquire title by adverse possession because the evidence as well as the pleadings do not spell the word “hostile” ? 2. For that the learned District Judge did not record any clear finding on the question of possession and thereby he failed to exercise his jurisdiction as final court on finding of facts. Absence of any finding on the question of possession vitiates the judgment of the learned District Judge and the judgment and decree passed by the learned District Judge is erroneous and is liable to be set aside. ” 6. Heard Mr. S.D. Das, learned Senior Advocate along with Mr. H.K. Behera, learned counsel for the appellants. None appears for the respondents. 7. Mr. Das, learned Senior Advocate for the appellants, argues with vehemence that Arjun had executed unregistered gift deed on 31.12.1951, Ext.A, in favour of defendant no.1. The gift deed had been acted upon. ” 6. Heard Mr. S.D. Das, learned Senior Advocate along with Mr. H.K. Behera, learned counsel for the appellants. None appears for the respondents. 7. Mr. Das, learned Senior Advocate for the appellants, argues with vehemence that Arjun had executed unregistered gift deed on 31.12.1951, Ext.A, in favour of defendant no.1. The gift deed had been acted upon. Otherwise also, the defendants are in possession of the suit land peacefully, continuously and with the hostile animus to the true owner for more than the statutory period and as such perfected title by way of adverse possession. 8. Ext.A is an unregistered gift deed dated 31.12.1951. Sec.123 of Transfer of Property Act, 1882 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrumental signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift deed of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same was as goods sold may be delivered. On a conspectus of Sec.123 of the Transfer of Property Act, 1882, it is evident that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrumental signed by or on behalf of the donor, and attested by at least two witnesses. In the instant case, the gift deed is an unregistered one. Thus, reliance placed on Ext.A is totally misplaced. 9. The matter can be examined from another angel. The laim of title to the property and adverse possession are in terms contradictory. In Annasaheb Bapusaheb Patil and others vs. Balwant alias Balasaheb Babusaheb Patil (dead) by Lrs. and heirs and others, (1995) 2 SCC 543 , the apex Court made an in-depth analysis of claim of title and claim to adverse possession over the property. The apex Court in paragraph-15 of the report held: “Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. The apex Court in paragraph-15 of the report held: “Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all.” 10. 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) The substantial questions of law are answered accordingly. 11. A priori, the appeal fails and is dismissed. There shall be no order as to costs.