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2018 DIGILAW 356 (ORI)

Gurubari Bewa v. Krushna Chandra Padhi

2018-04-04

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This is a defendants’ appeal against confirming judgment. 2. Plaintiffs-respondents instituted the suit for declaration of right, title and interest over the suit property, recovery of possession and permanent injunction. The case of the plaintiffs was that the suit schedule land originally belonged to Sridhar Padhi. After his death, his sons, Dhanabanta, Bidyadhar and Kunja were in possession of the same. Dhanabanta died leaving behind his sons, plaintiff nos.1 and 2. Kunja died leaving behind his son, plaintiff no.4. The forefathers of the plaintiffs raised a mango orchard over the suit land. The plaintiffs were in possession of the same. The husband of defendant no.1 and the husband of defendant no.2 were working under the plaintiffs as field servants. Taking advantage of the same, defendant nos.1 and 2 applied before the Tahasildar, Kantamal to mutate the suit land in their favour. The Tahasildar allowed the same. The plaintiffs filed R.M.A. No. 07/83 before the S.D.O., Boudh. The appeal was allowed. When the defendants created disturbance in the peaceful possession of the plaintiffs, they instituted the suit seeking the reliefs mentioned supra. 3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants was that they are in possession of the suit land for the last 60 years. They filed M.C. 408/79 to mutate the suit land in their favour. The Tahasildar, Kantamal allowed the mutation case in their favour. The plaintiffs filed an appeal before the S.D.O. The same was allowed on 30.04.84. Against the said order, the defendants filed Mutation Revision Petition No. 09/84 before the Commissioner of Land Records and Settlement, Orissa, Cuttack. It was further pleaded that the husband of defendant no.1 and the husband of defendant no.2 were not servants under the plaintiffs or their ancestors. The plaintiffs have no right, title and interest over the suit land. According to them, Amat family had originally planted trees over the suit land. Markanda, Subudhi and Pandab are brothers. Ugresan is related to them. Amat family members were in possession of the same. After their death, Pancha, daughter of Subudhi and mother-in-law of defendant no.1 were in possession with her two sons namely Jarmani, defendant no.2 and Lala, husband of defendant no.1. Defendant no.2 is alive. Lala is dead. Sridhar was not the original owner of the suit land. Ugresan is related to them. Amat family members were in possession of the same. After their death, Pancha, daughter of Subudhi and mother-in-law of defendant no.1 were in possession with her two sons namely Jarmani, defendant no.2 and Lala, husband of defendant no.1. Defendant no.2 is alive. Lala is dead. Sridhar was not the original owner of the suit land. The defendants are in possession of the suit land peacefully, continuously and with hostile animus to the knowledge of the plaintiffs for more than the statutory period and as such, perfected title by way of adverse possession. 4. On the inter se pleadings of the parties, learned trial court struck five issues. Both parties led evidence, oral and documentary, to substantiate their case. Learned trial court came to hold that R.O.R. was prepared in the year 1943. The same has a presumptive value. From the rent receipt vide Ext.X, it is evident that the plaintiffs are paying rent. Thus the plaintiffs have right, title and interest over the suit land. It further held that the defendants in their written statement admitted that till 1978, they did not know who was the owner of the suit orchard. The order passed in mutation case has been set aside in the appeal. They have not disclosed since when they have disclaimed title of the true owner. The defendants failed to prove that they are in possession of the suit land continuously, uninterruptively and to the knowledge of the plaintiffs for more than 12 years. Held so, it decreed the suit. The unsuccessful defendants filed T.A. No. 03 of 1989 before the learned Sub-ordinate Judge, Boudh, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial question of law:- “For that in a suit for title and recovery of possession the burden of proof is squarely on the plaintiffs. In the instant case, the only evidence of title is an entry in the Record of Rights of the year 1983. The learned Court failed to note that the Record of Rights do not create title in favour of a party. Further more, the oral evidence clearly indicates that the mutation case is subjudice before the Board of Revenue, Orissa and therefore, the presumption as to the correctness of the entry in the R.O.R. is rebutted ?” 6. Heard Mr. P.V. Balakrishna, learned counsel for the appellants and Mr. Further more, the oral evidence clearly indicates that the mutation case is subjudice before the Board of Revenue, Orissa and therefore, the presumption as to the correctness of the entry in the R.O.R. is rebutted ?” 6. Heard Mr. P.V. Balakrishna, learned counsel for the appellants and Mr. N.P. Patnaik, learned counsel for the respondents. 7. Mr. Balakrishna, learned counsel for the appellants submits that the plaintiffs have failed to prove their title over the suit land. According to him, there is evidence on record that the defendants have perfected title by way of adverse possession. 8. Per contra, Mr. Patnaik, learned counsel for the respondents submits that both the courts below concurrently held that the defendants have not perfected title by way of adverse possession and plaintiffs have title over the suit land. There is no perversity in the said findings. 9. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 , the apex Court observed as under : "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” (Emphasis laid) 10. On an anatomy of the pleadings and evidence on record, both the courts below concurrently held that the plaintiffs have title over the suit land. The date of entry into the suit land by the defendants has not been mentioned in the written statement. The defendants have taken a plea that they were not aware of the owner of the suit land till 1978. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. The substantial question of law is answered accordingly. 11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.