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2018 DIGILAW 457 (ORI)

Mana Bisoi v. Potnuru Krishna

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Defendant is the appellant against a confirming judgment. 2. Plaintiffs-respondents instituted the suit for declaration of title and perpetual injunction. The case of the plaintiff was that Soda Bisoi, father of the defendant, the original owner of lands locally known as Khari Bhumi alias Kharipotti with rent of 12 putties of paddy and Rs.24/-situated in mouza-Bhatigaon, Dist.-Koraput. The settlement operation was started in Boriguma area in the year 1953 for the first time. Prior to settlement, the lands were being identified by their boundaries and yield. Soda Bisoi used to pay rent. To press his legal necessity, he sold the northern portion with boundaries and rent of six putties of paddy and Rs.3/- out of his said lands to P. Somulu by means of a registered sale deed dated 16.12.1936. Possession was duly delivered to him. P. Somulu was in possession of the land. After him, the plaintiffs are in possession of the same. In the settlement operation of the year 1953, the land was assigned with khata no.130, plot no.338, Ac.1.62 cents and plot no.346, Ac.1.56 cents. The suit land appertaining to khata no.120, plot no.342/677, Ac.0.40 cents, which is the western portion of the lands purchased by P. Somulu, was not recorded in his name during the settlement operation. P. Somulu was not aware of the same. But then, he and his successors were in possession of the same. In the year 1993, the plaintiffs in order to construct a pump house adjoining the west of their land, got their land surveyed. They could ascertain that the western portion measuring Ac.0.40 cents had been recorded in the name of the father of the defendant. The plaintiffs filed M.C. No.1091/93 before the Tahasildar, Boriguma to record the suit land in their names. The Tahasildar allowed the application on 18.5.1993. The defendant filed appeal against the said order. The case was remanded to the Tahasildar for fresh disposal. On 8.11.1995, the defendant forcibly entered into the same, cut and removed the paddy crops grown by the plaintiffs. The defendant has no right, title, interest or possession over the suit land. With this factual scenario, they instituted the suit seeking the relief’s mentioned supra. 3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that the suit was barred by limitation. The defendant has no right, title, interest or possession over the suit land. With this factual scenario, they instituted the suit seeking the relief’s mentioned supra. 3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that the suit was barred by limitation. The suit land is not the portion of the purchased land of the father of the plaintiffs. The suit land belonged to his father. The suit land had been rightly recorded in the name of the father of the defendant. The father of the defendant and after him, the defendant is in possession of the suit land. The order dated 15.3.1995 of the Tahasildar, Boriguma is legal and valid. Neither the father of the plaintiffs nor the plaintiffs have any right, title, interest or possession over the suit land. The defendant has also claimed title by way of adverse possession. 4. On the interse pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court decreed the suit with the finding that the father of the plaintiffs purchased the suit land along with the other lands from the father of the defendant by means of a registered sale deed dated 16.12.1936. He was in possession of the land. Thereafter, the plaintiffs are in possession of the land. Plaintiffs have title over the suit land. Unsuccessful defendants filed T.A. No.11 of 1998 before the learned Civil Judge (Sr. Divn.), Jeypore, which was eventually dismissed. 5. The second appeal was admitted on the substantial questions of law enumerated in paragraphs 1, 2 and 3 of the memo dated 20.9.99. The same are: “1. Whether the learned courts below are justified in declaring the title and possession of the suit land in favour of the respondents/plaintiffs when the record of rights of the suit land published in the year 1952 and confirmed in the year 1993 is in favour of the father of the appellant/defendant ? 2. The same are: “1. Whether the learned courts below are justified in declaring the title and possession of the suit land in favour of the respondents/plaintiffs when the record of rights of the suit land published in the year 1952 and confirmed in the year 1993 is in favour of the father of the appellant/defendant ? 2. Whether the learned courts below are justified in declaring the title and possession of the suit land in favour of the respondents/plaintiffs when as per the deed the father of the respondents/plaintiff had purchased 3 putties of land from the northern side of the land measuring 24 putties whereas they have claimed the suit land to be the western portion of the total land ? 3. Whether the learned courts below are justified in declaring the title and possession of the western portion out of the total land in excess of the land already in their (plaintiffs) possession situated in northern side, only on the basing of boundary described in the sale deed ?” 6. Heard Miss Somalin Pattnaik, learned counsel, on behalf of Mr. Banoj Kumar Pattnaik, learned counsel for the appellant. None appeared for the respondents. 7. Miss Pattnaik, learned counsel for the appellant, submitted that record of right in respect of the suit land was published in the name of the father of the defendant in the year 1952. The father of the plaintiffs had purchased 3 putties of land from northern side of the land. But they have claimed the suit land from the western portion. The courts below are not justified in declaring title of the plaintiffs without ascertaining the area in possession of the plaintiffs. After forty years of publication of the ROR, the suit was instituted and barred by limitation. 8. The submission of Miss Pattnaik, learned counsel for the appellant, is difficult to fathom. On an anatomy of the pleadings and evidence on record, both the courts held that the suit land had been sold to the father of the plaintiffs vide Ext.1. The plaintiffs are in possession of the suit land. ROR neither creates title nor extinguishes title. The suit has been instituted for declaration of title and perpetual injunction, not correction of ROR. The suit is not barred by time. There is no perversity in the said finding. 9. The plaintiffs are in possession of the suit land. ROR neither creates title nor extinguishes title. The suit has been instituted for declaration of title and perpetual injunction, not correction of ROR. The suit is not barred by time. There is no perversity in the said finding. 9. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law. Mere possession of the suit land for long time is not suffice to hold that the defendant 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. 10. There is no pleading with regard to adverse possession except bald statement that the defendant has perfected title by his long possession. The date of entry into the suit land has not been mentioned. The courts below have rightly negatived the plea of adverse possession. The substantial questions of law are answered accordingly. 11. Resultantly, the appeal fails and is dismissed. No costs.