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2018 DIGILAW 453 (ORI)

Kasinath Jena v. Gangadhar Swain

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a reversing judgment in a suit for declaration of title and confirmation of possession. 2. The case of the plaintiff was that the suit lands appertaining to khata no. 252, plot nos.182, 186 and 193, Ac.0.63 dec. of mouza-Srirampur were purchased by one Pratima Dei from one Kasinath Puhan by means of a registered sale deed dated 14.5.1928. She was in possession of the same. She gifted the same along with other lands to her daughter Lalita Kumari Dei by means of a registered gift deed dated 10.1.1952. Lalita was in possession of the lands. Lalita and her husband died leaving behind their two minor sons, namely, Sitala and Suresh. Suresh sold half of the suit lands along with other lands to Gangadhar Swain, defendant no.1, by means of a registered sale deed dated 14.2.74 for a valid consideration and delivered possession. While matter stood thus, Sitala sold his interest in the suit land along with other lands to the defendant no.1 by means of a registered sale deed dated 26.11.74 and delivered possession. Defendant no.1 was in possession of the suit lands. He used to pay rent. He sold the suit lands to the plaintiff by means of a registered sale deed dated 12.11.86 for a valid consideration and delivered possession. The plaintiff was in possession of the suit land. Defendant no.2 threatened to create trouble in his possession. Defendant no.2 disclosed that he had purchased the suit land from one Gayadhar Swain, who had purchased the same from one Dolagobinda Swain. Dolagobinda Swain purchased the suit lands from Sankarsan Swain, the maternal grand-father of Sitala and Suresh. The purported guardian Sankarsan Swain had no power to alienate the suit lands of the minors and as such, the sale deed was void ab initio. The subsequent sale transactions conferred no title to the vendees. With this factual scenario, he instituted the suit seeking the relief’s mentioned supra. 3. The defendant no.2 entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant no.2 was that Sankarsan Swain, the maternal grand-father of Sitala and Suresh, was their guardian while they were minors. He was looking after the properties and as their guardian. 3. The defendant no.2 entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant no.2 was that Sankarsan Swain, the maternal grand-father of Sitala and Suresh, was their guardian while they were minors. He was looking after the properties and as their guardian. He sold the suit lands to one Dolagobinda Swain for their maintenance and meet educational expenses by means of a registered sale deed dated 22.8.57 for a valid consideration and delivered possession. Thereafter Dolagobinda sold the same to Gayadhar Swain by means of a registered sale deed dated 18.10.62 for a valid consideration and delivered possession. Thereafter Gayadhar Swain sold the suit lands to him by means of a registered sale deed dated 20.9.71 for a valid consideration and delivered possession. He is in possession of the suit lands. He used to pay rent. It was further pleaded that he was in possession of the suit lands peacefully, continuously and with the hostile animus of the plaintiff for more than the statutory period and as such perfected title by way of adverse possession. 4. On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the sale deed dated 22.8.57, Ext.A., executed by Sankarsan Swain in favour of Dolagobinda Swain is void. The subsequent sale deed dated 18.10.62 executed by Dolagobinda Swain in favour of Gayadhar Swain, Ext.B and the sale deed dated 20.9.71, Ext.C, executed by Gayadhar Swain in favour of Chandramani Jena, defendant no.2, are illegal and void. Defendant no.2 has no title over the suit land. Defendant no.2 has not perfected title by way of adverse possession. Plaintiff has title over the suit land. Held so, it decreed the suit. The defendant no.2 filed T.A. No.34 of 1993 before the learned Additional District Judge, Jajpur. Learned lower appellate court allowed the appeal holding inter alia that there is no evidence on record that Sankarsan Swain was the guardian of the minors. The transfer of the suit lands by Sankarsan vide Ext.A is void and not binding on the minors. Exts.A, B, C do not confer title on the vendees. It further held that though Sankarsan did not have title over the suit land, but he was in possession of the same. The transfer of the suit lands by Sankarsan vide Ext.A is void and not binding on the minors. Exts.A, B, C do not confer title on the vendees. It further held that though Sankarsan did not have title over the suit land, but he was in possession of the same. He sold the land to Dolagobinda. Dolagobinda was in possession of the land till 1962. Thereafter Dolagobinda sold the same to Gayadhar, who was in possession of the same till 1971. Thereafter, the defendant no.2 purchased the suit land. Defendant no.2 has perfected title by way of adverse possession under the doctrine of tacking. Held so, it allowed the appeal. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.8(b) and (e) of the memorandum of appeal. The same are: “8(b) Whether learned appellate court is correct by presuming that Sankarsan, the father of Lalita is in possession of the suit land when Pratima, his wife who gifted away her Stridhana land to her daughter and possession was delivered in the year 1952 is correct in view of the settle principle of law that title ordinarily carries with it the presumption of possession, and where the question is as to who was in possession of land, the presumption is that true owner is in possession in other words that possession follows title ? (e) Whether the learned courts below committed glaring mistake vis-à-vis foreign to the four corners of law by giving a fantastic finding with regard to Maxim ‘tacking’ by imputing the prescribed period with regard to adverse possession in favour of the D.2 that the initial purchase on 22.8.57 in favour of Dolagobinda onwards till the purchase by D.2 on 20.9.71 from Gayadhar vis-à-vis the purchase by Gangadhar Swain (D.1) thereafter subsequent purchase finally ends with the purchase by plaintiff on 12.11.1986 has not only shaken the very foundation of law but also glaring mis-carriage of justice, i.e., in other words if this be the state of affairs if it would be examined on cardinal principle of Article 65 of Limitation Act vis-à-vis Specific Relief Act, this Hon’ble Court would come to an irresistible conclusion that the same finding is diametrically opposite to the well known Maxim, nec calm, nec vi and nec pricario ?” 6. Heard Mr. D.R. Mohapatra, learned counsel for the appellant and Mr. Heard Mr. D.R. Mohapatra, learned counsel for the appellant and Mr. D.P. Mohanty, learned counsel for the respondent no.2. None appeared for the respondent nos.1 and 3. 7. Mr. Mohapatra, learned counsel for the appellant, submitted that there is no pleading and evidence that defendant no.2 has perfected title by way of adverse possession. Learned lower appellate court found that alienation made by Sankarsan vide Ext.A is void one. 8. Per contra, Mr. Mohanty, learned counsel for the respondent no.2, submitted that Sankarsan alienated the suit land as de facto guardian of the minors on 22.8.57 vide Ext.A. Thereafter the successive transactions were made. The vendees were in possession. The defendant no.2 was in possession of the land peacefully, continuously and with the hostile animus of the plaintiff for more than the statutory period and as such perfected title by way of adverse possession. 9. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779 , the apex Court held: "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. Nonuse 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. Mere possession of the suit land for long time is not suffice to hold that the defendant no.2 has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Learned appellate court fell into patent error of law in holding that the defendant no.2 has perfected title by way of adverse possession. There is no pleading or evidence on record that the defendant no.2 has perfected title by way of adverse possession. The date of entry into the suit land by the defendant no.2 has not been mentioned. 11. The matter may be examined from another angle. The claim 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. 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. 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 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. 13. Resultantly, the appeal is allowed. The suit is decreed. No costs.