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2018 DIGILAW 329 (ORI)

Rajan Bhoi v. Birabar Panigrahi

2018-03-30

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This is a plaintiff's appeal against confirming judgment in a suit for declaration of title, permanent injunction and eviction of defendants 1 and 2. 2. The case of the plaintiff was that one Fula Pandani was owner in possession of suit Schedule-A land. The plaintiff purchased the said land from Fula Pandani by means of a registered sale deed dated 5.5.1962. Possession was duly delivered to him. He is in possession of the same. There is a house over Schedule-B land. Defendants 1 and 2 requested him to let out the same to them. Monthly rent was fixed at Rs. 15/-. They resided in the house. He requested the defendants to vacate the suit house. The defendants did not vacate the suit house. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendants filed written statement denying the assertions made in the plaint. According to them, the plaintiff had not purchased the Schedule-A land from Fula Pandani. Fula Pandani sold Schedule-A land to defendant no. 1 on 15.5.1957 for a consideration of Rs. 85/- by means of an unregistered sale deed. The plaintiff along with his mother alienated Schedule-B land to him on 8.2.1959 for a consideration of Rs. 42/- by means of an unregistered sale deed and delivered possession. They have perfected title by way of adverse possession. They are protected under Section 53-A of the Transfer of Property Act. 4. On the inter se pleadings of the parties, learned trial court struck five issues. Parties led evidence. Learned trial court came to hold that the plaintiff has title over Schedule-A land. The defendant no. 1 has perfected title over Schedule-B land by way of adverse possession. The plaintiff has no title over the same. Held so, it decreed the suit in part. Feeling aggrieved, the plaintiff as well as the defendants appealed before the learned District Judge, Bolangir, which were subsequently transferred to the court of the learned Additional District Judge, Sonepur and renumbered as T.A. No. 42/15 of 1993-99 and T.A. No. 35/14 of 1993-99. Both the appeals were dismissed. Hence, this appeal. 5. The appeal was admitted on the substantial questions of law enumerated in grounds no. 1 to 3 of the appeal memo. The same are: “1. Both the appeals were dismissed. Hence, this appeal. 5. The appeal was admitted on the substantial questions of law enumerated in grounds no. 1 to 3 of the appeal memo. The same are: “1. Whether the decisions of the learned Courts below relating to ‘B’ schedule land have been vitiated in not keeping in view the distinction between part performance of contract under Section 53-A and sale of intangible immovable property of a value less than 100 rupees under Section 54 of the T.P. Act? 2. Whether the finding relating to adverse possession and protection under Section 53-A of the T.P. Act is based on pleading and evidence and if such finding is perverse and is liable to be set aside? 3. Whether the decisions of the learned Courts below have been vitiated due to non- consideration of documentary as well as oral evidence adduced by the plaintiff?” In course of hearing, the following substantial questions of law had been framed. “(1) Whether the courts below have erred in law in decreeing the suit when the defendants claim of title to the property and adverse possession are in terms contradictory? (2) Whether the courts below are justified in holding inter-alia that the defendants have perfected title by way of adverse possession when the classical requirements of adverse possession nec vi, nec clam, nec precario are not pleaded and proved?” 6. Heard Mr. Budhiram Das, learned Advocate on behalf of Mr. N.C. Pati, learned Advocate for the appellant. None appeared for the respondents. 7. Mr. Das, learned Advocate for the appellant submitted that there is no pleading or evidence on record that the defendants have perfected title by way of adverse possession. The plea is mutually destructive. 8. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and Others vs. 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.” 9. The apex Court in the case of L.N. Aswathama and Another vs. 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) 10. 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 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.” 11. The defendants assert that Fula Pandani sold Schedule-A land to defendant no. 1 by means of an unregistered sale deed dated 15.5.1957 for a consideration of Rs. 85/- and delivered possession. 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.” 11. The defendants assert that Fula Pandani sold Schedule-A land to defendant no. 1 by means of an unregistered sale deed dated 15.5.1957 for a consideration of Rs. 85/- and delivered possession. With regard to Schedule-B land, it is pleaded that on 8.2.1959 the plaintiff, his minor brothers and mother transferred Schedule-B land to defendant no. 1 by means of an unregistered sale deed for a consideration of Rs. 42/- and delivered possession. Alternative plea of the defendants is that they are in possession of the land and house peacefully, continuously and to the hostile animus of the true owner and, as such, perfected title by way of adverse possession. The defendants failed to prove that the plaintiff and his brothers alienated Schedule-B land to the defendant no. 1. As held by the apex Court in the decision cited supra, the plea based on title and adverse possession are mutually inconsistent. The substantial questions of law are answered accordingly. 12. In the result, the appeal is allowed. The judgment and decree of the lower appellate court and that of the learned trial court is modified to the extent that the plaintiff has title over the suit property. Accordingly, the suit is decreed. No costs.