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2018 DIGILAW 540 (ORI)

Sadananda Das v. Sukadev Das

2018-05-11

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Plaintiff is in appeal against a confirming judgment of the learned Additional District Judge, Bhadrak in a suit for permanent injunction. 2. The case of the plaintiff was that the suit land was recorded in favour of his father, Bhima Das in the R.O.R. of the year 1984. He was in possession of the said land. Thereafter, he is in possession of the same and acquired title by way of adverse possession. It was further pleaded that the defendant had no semblance of right, title and interest over the suit land. The sale deed executed by Chadhei Dei in favour of defendant is void. Chadhei Dei had no title over the suit land. 3. The defendant filed written statement denying the assertions made in the plaint. According to him, the suit property originally belonged to Rusi Sahu and the co-sharers. The same fell to the share of Rusi Sahu in the partition. After his death, his only daughter, Chadhei Dei alienated the suit land on 12.8.1954 to him by means of a registered sale deed and delivered possession. 4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court dismissed the suit with the finding that the plaintiff had failed to prove the title and possession over the suit land. Unsuccessful plaintiff filed T.A.No.39 of 1987-1 before the learned Additional District Judge, Bhadrak, which was eventually dismissed. 5. This appeal was admitted on the substantial questions of law enumerated in ground nos.1 and 3 of the appeal memo. The same are : “(1) For that both the courts below, by an essentially erroneous approach, missed the essentials of the plaintiff’s case as per the plaint, which is one under Article-64 of the Limitation Act, 1963 and thereby their findings against the plaintiff-appellant ought to be vitiated. (3) For that although Ext.D (order in O.L.R. case No.3/82 U/S 9, O.L.R. Act) shows that the plaintiff’s application was rejected as not maintainable, the courts below erroneously utilized the said order to hold that the plaintiff has no title or possession over the suit land.” 6. Heard Mr. Pravat Kumar Lenka, learned Advocate on behalf of Mr. S.P. Mohanty, learned Advocate for the appellant and Mr. Mahadev Mishra, learned Senior Advocate on behalf of Ms. Heard Mr. Pravat Kumar Lenka, learned Advocate on behalf of Mr. S.P. Mohanty, learned Advocate for the appellant and Mr. Mahadev Mishra, learned Senior Advocate on behalf of Ms. Mamata Mishra, learned Advocate for the respondent. 7. Mr. Lenka, learned Advocate for the appellant submitted that the R.O.R. was published in the name of the father of the plaintiff in the year 1984. The plaintiff was in possession of the suit land for more than the statutory period peacefully, continuously and with the hostile animus to the true owner and, as such, perfected title by way of adverse possession. Learned appellate court fell into patent error in relying upon the order passed in O.L.R. Case No.3 of 1982, Ext.D. 8. Per contra, Mr. Mishra, learned Senior Advocate for the respondent submitted that both the courts below concurrently held that plaintiff had no title over the suit land. The R.O.R. neither creates nor extinguishes title. The plaintiff had failed to substantiate the plea that he had title over the suit land. The plaintiff adduced evidence that the suit land was purchased by his father. There is no evidence on record that the suit land was purchased by the father of the plaintiff. 9. The defendant had purchased the suit land from Chadhei Dei by means of a registered sale deed Ext.B. The plaintiff filed an application before the Tahasildar under Sec. 9 of the Orissa Land Reforms Act (“O.L.R. Act”) to declare him a tenant. The petition was rejected. The said order was exhibited as Ext.E in the appeal. The plaintiff had admitted that the defendant was the landlord. The plaintiff had taken prevaricating stand. The plea is mutually destructive. 10. The submission of Mr. Lenka, learned Advocate for the appellant that the plaintiff has perfected title by way of adverse possession, is difficult to fathom. There is no pleading that the plaintiff had perfected title by way of adverse possession. Mere possession of the suit land for long time is not suffice to hold that the plaintiff had 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 courts below held that the plaintiff had no title over the suit land. There is no perversity in the said finding. The substantial questions of law are answered accordingly. 11. The courts below held that the plaintiff had no title over the suit land. There is no perversity in the said finding. The substantial questions of law are answered accordingly. 11. In the ultimate analysis, the appeal fails and is dismissed. No costs.