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2018 DIGILAW 87 (ORI)

Pireswar Giri v. Banabihari Sahu

2018-01-16

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. Defendants 1 and 2 are the appellants against a confirming judgment. 2. The plaintiff-respondent no.1 instituted the suit for eviction of the defendants from the suit land and recovery of possession. The case of the plaintiff was that he purchased Ac.0.28 dec. of land from one Purnananda Das by means of a registered sale deed dated 20.11.1976 for consideration of Rs.2000/-. He was in possession of the same. The suit land was kept vacant. One Lama Bahadur and Naresh Behera forcibly occupied Ac.0.01 dec. of land. They constructed a katcha house thereon. Thereafter he filed T.S.No.18 of 1980 in the court of the learned Munsif, Baripada for eviction. The suit was decreed. Possession was restored through process of the Court on 10.10.1981. In the hal settlement, the entire land was recorded in his name with a note of forcible note of possession in the name of the defendant in respect of Ac.0.10 dec. of land appertaining to plot no.227/687. The defendants forcibly occupied the house and the adjoining lands and converted the katcha house into a tiled roof house. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. Defendants 1 and 2 filed a written statement denying the assertions made in the plaint. The case of the defendants was that the suit land was a Government land. Its kisam was “Patita”. The same was settled in favour of Mithu Behera of Bijoy Ramachandrapur under Amalnama. The status of the land was “Dakhal Swata Bihina”. The land was lying fallow. The same was unfit for cultivation. They belonged to village Sahadasuni of Barasahi Block. They were minors at the time of death of their father. Their mother-defendant no.3 shifted to Baripada in the year 1967, constructed a room with defendant nos.1 and 2 over the suit land and stayed thereon. Their further case was that the vendor of the plaintiff was not in possession nor he sold the property to the plaintiff at any point of time. Restoration of possession of the suit land on the strength of execution decree in T.S.No.18 of 1980 had also been denied. A criminal case was initiated against them. They were in possession since 1968. Defendant no.3, mother of defendant nos.1 and 2, was set ex parte. 4. On the inter se pleadings of the parties, the learned trial court framed eight issues. A criminal case was initiated against them. They were in possession since 1968. Defendant no.3, mother of defendant nos.1 and 2, was set ex parte. 4. On the inter se pleadings of the parties, the learned trial court framed eight issues. Both parties led evidence, oral and documentary, to substantiate their case. The learned trial court held that the plaintiff had purchased the suit land described in schedule ‘A’ of the plaint. The defendants failed to establish their claim of possession since 1968. The defendants were not in possession of the suit land. It negatived the plea of adverse possession. Held so, it decreed the suit. The unsuccessful defendants 1 and 2 filed T.A.No.65 of 1996 in the court of the learned District Judge, Mayurbhanj, Baripada, which was eventually dismissed. 5. The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.(i), (ii), (iii) and (iv) of the appeal memo. The same are: “(i) Whether Ext.A, the certified copy of R.O.R. marked without objection in absence of rebuttal evidence creates a presumption in favour of the defendants, under Sec.13 of the Orissa Survey and Settlement Act,1958 and whether basing on the entry in the R.O.R. in favour of the defendants, the defendants have acquired possessory title ? (ii) Whether Ext.3, so-called Sabik Khatian bearing no stamp or signature of any authority is genuine and admissible in evidence and creates and confers title on the plaintiff ? (iii) Whether there having nothing on record to show how Trilochan Das made acquisition of the suit land the finding of the Courts below that Trilochan had title over the suit land is legal ? (iv) Whether the plaintiff having failed to trace his vendors title over the suit property, Ext.7, the sale deed conveys any title on the plaintiff ?” 6. Heard Mr.Sidharth Mishra, learned Advocate on behalf of Mr.B.B.Ratho, learned Senior Advocate for the appellants and Mr.Kedar Sankar Sahoo, learned Advocate on behalf of Mr.A.R.Dash, learned Advocate for the respondents. 7. Mr.Mishra, learned Advocate for the appellant submits that Mithu Behera was the original owner of the suit land. Mithu Behera was in possession of the suit land by virtue of Amalnama in 1933-34. In 1967 the defendants reclaimed the suit land and constructed a Katcha house. They are residing thereon. Purnananda had no title over the suit land. 7. Mr.Mishra, learned Advocate for the appellant submits that Mithu Behera was the original owner of the suit land. Mithu Behera was in possession of the suit land by virtue of Amalnama in 1933-34. In 1967 the defendants reclaimed the suit land and constructed a Katcha house. They are residing thereon. Purnananda had no title over the suit land. Thus any alienation made by Purnananda in favour of the plaintiff will not confer title. The sabak khatian, vide Ext.3 does not bear any stamp or signature. There is no material on record to show that Trilochan Das acquired of the suit land. In the remarks column of the record of right, possession of the defendants has been reflected. The defendants are in possession of the suit land peacefully, continuously and with hostile animus to the plaintiff for a more than statutory period and, as such perfected title by way of adverse possession. 8. Per contra, Mr.Sahoo, learned Advocate for the respondents submits that Purnananda was the original owner of the suit land. He sold the said land to the plaintiff by means of a registered sale deed dated 20.11.1976 and delivered possession. The defendants have no semblance of right, title and interest over the same. Further, he plaintiff filed T.S.No.18 of 1980 against the persons, who were in unauthorized occupation of a part of the suit land. The said suit was decreed. 9. Sabik Khatiana, vide Ext.3, shows that the suit land was recorded in the name of Trilochan Das, father of Purnananda Das, vendor of the plaintiff. Both the courts below concurrently held that Purnananda Das was the original owner of the suit land. He alienated the suit land to the plaintiff by means of a registered sale deed vide Ext.1. The record of right has been published in the name of the plaintiff. 10. Adverse possession is not a pure question of law but a blended one of fact and law. 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. Mere possession of the suit land for long time is not sufficient to hold that the defendants 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, the learned courts below negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 13. 12. On a threadbare analysis of the evidence on record and pleadings, the learned courts below negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.