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2018 DIGILAW 451 (ORI)

Nabakishore Prusty v. Biswanath Deb

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Defendants are the appellants against a confirming judgment. 2. The dispute pertains to one pucca room standing over plot no.368, holding no.371, Ac.0.005 dec. out of Ac.0.50 dec. of mouza-Gurujang, District-Khurda. 3. Plaintiff-respondent instituted the suit for declaration of title and permanent injunction. The case of the plaintiff is that he is the marfatdar of the deity Sri Sri Ramanarayan Ram bije Jujarsingh. His ancestor had constructed a temple and a pucca room. In the year 1970, the plaintiff allowed one Hadibandhu Prusti to prepare bhog for the deity in the room. Hadibandhu was in possession of the room on payment of rent. Two years before his death, he handed over the key of the room to the plaintiff. The room was in his possession. Taking advantage of his absence, the defendants dismantled a portion of the roof of the room and stacked the materials. A proceeding under Sec. 144 Cr.P.C. was initiated. The defendants have no semblance of right, title and interest over the suit land. 4. Defendants filed a written statement stating, inter alia, that the plaintiff is not the owner in possession of the suit land. He is not paying rent. The ancestors of the plaintiff had not built up the pucca room over the suit land. It was further pleaded that the deity was the family deity of Ganesh Ram. The family of Ganesh endowed properties in favour of the plaintiff. In the year 1942, Phuljharia Bewa, marfatdar of the deity, granted permanent lease of the suit land to Hadibandhu on a premium of Rs.20/- and delivered possession. She had executed the document in his favour in the year 1945. Hadibandhu was in possession of the suit land since 1942. He had constructed a room and prepared bhog for the deity. The defendants along with Hadibandhu was in possession of the suit land. Hadibandhu had not handed over the key of the room to the marfatdar of the deity. Hadibandhu was the permanent lessee of the suit land. After death of Hadibandhu, they are in possession of the same. Hadibandhu acquired occupancy right, which is non-evictable. The licence is not revocable, but heritable under Sec.60 of the Indian Easement Act. Hadibandhu had not handed over the key of the room to the marfatdar of the deity. Hadibandhu was the permanent lessee of the suit land. After death of Hadibandhu, they are in possession of the same. Hadibandhu acquired occupancy right, which is non-evictable. The licence is not revocable, but heritable under Sec.60 of the Indian Easement Act. Hadibandhu was in possession of the suit land from the year 1942 having constructed a room openly, peacefully, continuously and to the knowledge of the true owner for more than the statutory period and as such, perfected title by way of adverse possession. 5. On the inter se pleadings of the parties, learned trial court has framed seventeen issues. Both the parties led evidence, oral and documentary, in support of their case. The learned trial court decreed the suit holding, inter alia, that the defendants have not acquired occupancy right over the suit property. They had not acquired title by way of adverse possession. Defendants have no right, title and interest over the suit properties. The suit is within time. Defendants have not constructed the suit room. As the defendants have not constructed the house, he is not entitled to be protected under Sec. 60 of the Indian Easements Act. Unsuccessful defendants filed Title Appeal No.6 of 1988 before the learned Civil Judge (Senior Division), Khurda, which was eventually dismissed. 6. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.6(a)(b) and 7 of the appeal memo. The same are - “a. Whether the unregistered lease deed (Ext.E) is admissible under Section 90 of the Evidence Act ? b. Whether the contents of unregistered lease deed (Ext.E) can be used as evidence for proving that late Hadibandhu Prusty was in possession over the suit land and had constructed the room on the suit land? 7. For that the judgment and decree passed by the courts below are otherwise bad and are liable to be set aside.” 7. Heard Mr. Alekha Ch. Mohanty, learned counsel for the appellants and Mr. Sidhartha Mishra, learned counsel for the respondent. 8. Mr. Mohanty, learned counsel for the appellants submitted that the unregistered lease deed vide Ext.E is a thirty years old document, which was produced by D.W. 3 in whose favour the document was executed. Heard Mr. Alekha Ch. Mohanty, learned counsel for the appellants and Mr. Sidhartha Mishra, learned counsel for the respondent. 8. Mr. Mohanty, learned counsel for the appellants submitted that the unregistered lease deed vide Ext.E is a thirty years old document, which was produced by D.W. 3 in whose favour the document was executed. The learned courts below came to an erroneous conclusion that the document cannot be admitted into evidence under Sec. 90 of the Evidence Act being hit by Sec. 117 of the T.P Act and Sec. 17, 18(2), 21 and 32 of the Evidence Act have no application to the present case. The unregistered lease deed, vide Ext.E, can be used for collateral purposes for proving that Hadibandhu was in possession over the suit land and had constructed the room on it. The learned courts below failed to take into consideration the holding tax receipts, vide Exts.A to A/6, receipts granted by Electrical Department taking electrical charges from defendants, vide Exts.B to B/10, bills of electric charges, vide Exts.C to C/6, unregistered lease deed, vide Ext.E, the bhoga receipts, vide Exts.F to F/5, while coming to conclusion that Hadibandhu was not residing in the suit property with his family and after him the defendants are not residing in the suit house. He further submitted that defendant no.2 deposed that Hadibandhu was occupying the suit room. After his death, defendants are staying there. D.W.6 deposed that the suit room was constructed by Hadibandhu, father of defendant no.2 about 45 to 46 years back. Hadibandhu was preparing bhog in the suit room and staying with his family. Though both the witnesses were subjected to extensive cross-examination, but nothing was elicited from them. The witnesses examined by them deposed that Hadibandhu was in possession of the shop room. The defendants are in possession of the land peacefully, continuously and to the hostile animus of the true owner for more than the statutory period and as such, perfected title by way of adverse possession. His alternative submission is that even if the defendants are construed to be a licencee, the licence cannot be revoked inasmuch as the licencee acting upon the licence had constructed the room of a permanent character. In view of the same, the suit for permanent injunction is liable to be dismissed. 9. Per contra, Mr. His alternative submission is that even if the defendants are construed to be a licencee, the licence cannot be revoked inasmuch as the licencee acting upon the licence had constructed the room of a permanent character. In view of the same, the suit for permanent injunction is liable to be dismissed. 9. Per contra, Mr. Mishra, learned counsel for the respondents submitted that the plaintiff is the owner of the house. In the year 1970, Hadibandhu was allowed to occupy the room so as to prepare bhog of the seva puja and nitikranti of the deity on payment of rent. The defendants are in unauthorised occupation of the suit land. 10. Both the courts concurrently held that the house was constructed when the unregistered lease deed, vide Ext.E, was created. Hadibandhu had not constructed the room. The provision contained in Sec. 60 of the Indian Easement Act is of no avail to the defendants in view of the fact that there is no agreement or contract for licence acting upon which permanent construction was made by Hadibandhu. The C.S. record of right stands in the name of the plaintiff. Hadibandhu had not acquired title over the suit property by way of adverse possession. His possession was permissive. There is no perversity or illegality in the said finding. 11. Further, claim to title and adverse possession is mutually inconsistent. In Annasaheb Bapusaheb Patil and others Vrs. 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.” 12. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others Vrs. 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.” 12. 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.” 13. 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. 14. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.