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2019 DIGILAW 307 (ORI)

Srimati Maliani v. K. Satyabatiamma

2019-04-11

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This appeal at the instance of the plaintiffs assails the reversing judgment of the learned Additional District Judge, Jeypore in a suit for eviction and realization of arrear rent. 2. The case of the plaintiffs is that their ancestor constructed four thatched rooms over plot no.621. Jagannath Mali, plaintiff no.2 verbally leased out those four rooms to K.Satyabatiamma, defendant no.1 in the year 1976. She occupied the same on 2.6.1976 and paid a sum of Rs.500/- to plaintiff no.2 with an understanding that the amount shall be adjusted in installments. Rs.40/- per month was fixed for all the four rooms. She advanced a sum of Rs.200/- to Jagannath Mali, plaintiff no.2. The plaintiffs had taken a sum of Rs.700/- towards advance. Since defendant no.1 did not pay any rent, plaintiff no.2 issued a legal notice to her demanding arrear rent and vacation of house. On 16.9.1980 defendant no.1 replied to the notice denying the occupation of the house on lease. While matter stood thus, she had constructed four thatched rooms over the vacant site. She is residing therein. The defendants had never constructed the thatched rooms. With this factual scenario, the suit has been instituted seeking the relief’s mentioned supra. 3. The defendants filed written statement pleading inter alia that the suit house was previously a vacant site. In the year 1950 the husband of defendant no.1 stayed in the house of his sister-in-law and constructed three huts over the same. They occupied the suit land. After death of her husband, the plaintiffs disclosed that they were the owners of the land in question. A meeting was convened. Nobody objected to the possession of the defendants. They applied to the Jeypore Municipality to assign the holding number in their favour. They are in possession of the site since 1950. 4. On the inter se pleadings of the parties, learned trial court framed nine issues. Parties led evidence, oral and documentary. Learned trial court decreed the suit holding that possession of the defendants is permissive. The defendants have failed to establish acquisition of title by way of adverse possession. Assailing the judgment and decree passed by the learned trial court, the defendants filed appeal before the learned District Judge, Jeypore, which was subsequently transferred to the court of the learned Additional District Judge, Jeypore and renumbered as T.A.No.16/89(25/88 of D.J.). The defendants have failed to establish acquisition of title by way of adverse possession. Assailing the judgment and decree passed by the learned trial court, the defendants filed appeal before the learned District Judge, Jeypore, which was subsequently transferred to the court of the learned Additional District Judge, Jeypore and renumbered as T.A.No.16/89(25/88 of D.J.). Learned appellate court held that there is no document of title in favour of the plaintiffs. The defendants are in possession of the suit land peacefully, continuously and with the hostile animus to the plaintiffs for more than statutory period and, as such, perfected title by way of adverse possession. Held so, it allowed the appeal. It is apt to state here that during pendency of the appeal, appellant no.5 died, where after his legal heirs have been substituted. Similarly, respondent no.1 died, where after her legal heirs have been substituted. 5. The appeal was admitted on the substantial questions of law enumerated in ground nos. A and F of the appeal memo. The same are: "A. As to whether non-consideration of documentary evidence evidencing possession of the plaintiffs and permissive possession of the defendants would vitiate the findings of adverse possession. F. As to whether the defendants having not proved the ingredients of adverse possession a finding can be given in their favour that they held the land beyond the period of limitation adversely to the interest of the plaintiffs." 6. Heard Mr. S.K. Samantray, learned counsel for the appellants. None appears for the respondents. 7. Mr. Samantray, learned counsel for the appellants submits that the plaintiffs are the owner in possession of the suit house. The R.O.R. has been published in their favour. They used to pay electric charges and holding tax to the authorities. Possession of the defendants is permissive. The finding of the learned appellate court that the defendants have perfected title by way of adverse possession is perverse. He further submits that one Bhanu Modi instituted T.S.No.23 of 1964, Ext.1, for recovery of possession against the plaintiffs. The suit having been dismissed, Bhanu Modi filed T.A.No.20 of 1966. The said appeal met the same fate. Thereafter, S.A.No.338 of 1969 was filed before this Court, which was dismissed as withdrawn. 8. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State vrs. The suit having been dismissed, Bhanu Modi filed T.A.No.20 of 1966. The said appeal met the same fate. Thereafter, S.A.No.338 of 1969 was filed before this Court, which was dismissed as withdrawn. 8. 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, (1934) AIR PC 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". 9. In Karnataka Board of Wakf vrs. 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. 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. 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." 10. Reverting to the facts of the case and keeping in view of the law laid down by the apex Court in the decisions cited supra, this Court finds that the plaintiffs assert that they are the owner of the suit house. To substantiate the plea, they filed R.O.R. They used to pay electric charges as well as holding tax to the authorities. 11. The defendants have not pleaded from which date possession became hostile. According to the defendants, the plaintiffs are not the owner in possession of the suit house, but they claim title by way of adverse possession. The plea is mutually inconsistent. Learned trial court, on a vivid analysis of the pleadings and evidence on record, negatived the plea of adverse possession. But the learned appellate court reversed the same on untenable and unsupportable grounds. The substantial questions of law are answered accordingly. 12. In view of the forgoing discussions, the appeal is allowed. The judgment and decree passed by the learned appellate court is set aside. Consequently, the suit is decreed. There shall be no order as to costs.