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2018 DIGILAW 77 (ORI)

Lakhapati Dharua v. Dullav Sahu

2018-01-15

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. 1. This is a defendant’s appeal against confirming judgment. 2. Duryodhan Sahu, the predecessor-in-interest of the plaintiffs-respondents, instituted the suit for declaration of right, title, interest and confirmation of possession or in the alternative for recovery of possession of the suit land. The case of the plaintiff is that the suit land is his ancestral property. In a family partition, the suit land fell to the share of his father. In the current settlement record, the suit land has been recorded jointly in the names of his father and other co-sharers. After death of his father, he is in possession of the suit land. In the remarks column of C.S. R.O.R. published in the year 1977, the name of the defendant finds place. Taking advantage of the same, the defendant created disturbance. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. The defendant filed a written statement denying the assertions made in the plaint. The case of the defendant is that after death of his father, he is in possession of the suit land peacefully, continuously and with hostile animus to the plaintiff for the last 50 years. Plot nos.369 and 389 have been amalgamated with plot no.234 since the time of his father. After due inquiry the settlement authorities noted his possession in the remarks column of the R.O.R. Thus, he has acquired title by way of adverse possession. 4. On the inter se pleadings of the parties, the learned trial court framed six issues. On a threadbare analysis of the evidence on record and pleadings, the learned trial court came to hold that entry in the M.S. R.O.R infers defendant’s forcible possession. In 1962 settlement operation, the settlement authority found possession of the father of the plaintiff. Thus, possession of the defendant cannot be said to be adverse prior to 1962. Held so, it decreed the suit. The unsuccessful defendant challenged the judgment and decree before the learned Civil Judge (Sr.Division), Padampur in T.A.No.2 of 1992, which was eventually dismissed. It is apt to state here that during pendency of the First Appeal, the sole plaintiff died, whereafter his legal heirs had been substituted. 5. Held so, it decreed the suit. The unsuccessful defendant challenged the judgment and decree before the learned Civil Judge (Sr.Division), Padampur in T.A.No.2 of 1992, which was eventually dismissed. It is apt to state here that during pendency of the First Appeal, the sole plaintiff died, whereafter his legal heirs had been substituted. 5. The Second Appeal was admitted on the following substantial question of law: “Whether on the facts found, the conclusion drawn by the courts below that the defendant failed to establish title by adverse possession, can be sustained in law ?” 6. Heard Mr.Budhiram Das, learned Advocate on behalf of Mr.A.K.Mishra, learned Advocate for the appellant and Mr.Manoj Das, learned Advocate on behalf of Mr.N.K.Sahoo, learned Advocate for the respondents. 7. Learned Advocate for the appellant submits that the defendant is in possession of the suit property for the last fifty years peacefully, continuously and with hostile animus to the plaintiff and, as such, perfected title by way of adverse possession. In the remarks column of the M.S.R.O.R. published in the year 1962, name of the defendant finds place. The finding of the courts below that the defendant has not perfected title by way of adverse possession is perverse. 8. Per contra, learned Advocate for the respondents submits that both the courts below have rightly held that the defendant has not perfected title by way of adverse possession. 9. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. 10. In Karnataka Board of Wakf vs. Govt. of India and others, (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. of India and others, (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. 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) 11. The date of entry into the suit land has not been mentioned. The courts below are justified in holding that mentioning the name of the defendant in the remarks column of M.S. R.O.R. is not suffice. Mere possession of the suit land for long time is not sufficient 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. 12. On a threadbare analysis of the evidence on record and pleadings, both the courts below negatived the plea of adverse possession. There is no perversity in the said findings. 12. On a threadbare analysis of the evidence on record and pleadings, both the courts below negatived the plea of adverse possession. There is no perversity in the said findings. The substantial question of law is answered accordingly. 13. In the wake of aforesaid, the appeal, sans merit, is dismissed. No costs.