The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.55 of 1996 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 25.11.1995 & 08.12.1995 respectively passed by the learned Civil Judge, Senior Division, Rairangpur in Title Appeal No.2 of 1993 confirming the judgment and decree dated 24.04.1993 & 07.05.1993 respectively passed by the learned Munsif, Rairangpur in T.S. No.25 of 1990. ---- Durga Majhi (Since Dead)by his LRs & Others …. Appellants -versus- Salkhan Majhi …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr.Sanjit Mohanty, (Sr.Advocate) Mr.S.C.Samantaray, (Advocate) For Respondent - -None-1 & 2) CORAM: MR. JUSTICE D.DASH DATE OF HEARING :15.02.2023 :: DATE OF JUDGMENT:28.02.2023 D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and S.A. No.55 of 1996 Page 1 of 8 {{ 2 }} decree dated 25.11.1995 & 08.12.1995 respectively passed by the learned Civil Judge, Senior Division, Rairangpur in Title Appeal No.2 of 1993. By the same, the Appeal filed by these Appellants under section 96 of the Code has been dismissed and thereby the judgment and decree passed by the learned Munsif, Rairangpur in T.S. No.25 of 1990, have been confirmed. The original Appellants as the Plaintiffs have filed the suit against the Respondent arraigning him as the Defendant for declaration of their right, title and interest over the suit land and recovery of possession. The suit having been dismissed, they had filed Appeal under section 96 of the Code which too has been dismissed. Hence, the unsuccessful Plaintiffs before both the Courts below had filed this Appeal. During pendency of this Appeal, the Appellant No.1 & 3 (Plaintiff No.1 and 3) having died, their legal representatives have come on record under pursuing this Appeal. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. The plaintiffs’ case is that the Parties are Santhal by caste and as such are governed by Mitakshara School of Traditional Hindu Law when the provisions contained in Hindu Succession Act and other codifications are not applicable to them as they are the members of the Schedule Tribe community. It is stated that the Plaintiffs that they are the three sons of Karia Majhi. They were residing in a joint family of which the Plaintiff No.1 (Durga) is the Karta. It is stated that the Defendant was not related to them. S.A. No.55 of 1996 Page 2 of 8 {{ 3 }} Their father with uncle namely, Salkhan had 20 Acres 59 decimals of landed properties at village Kusumghaty. They were living in joint family and Salkhan having died, leaving no issue, Karia alone succeeded to all the properties and he possessed all those alone after the death of Salkhan till his death upon death of Karia, the Plaintiffs having inherited those properties, are in possession of the same jointly. It is stated that in the current settlement, their properties have been recorded in their name jointly under Khata No.23 in village Kusumghaty. They state that sometime in the month of Jestha of the year 1988, the Defendant forcibly trespassed into the suit land and started reclaiming the same. Persuasion from the side of the Plaintiff to dissuade the defendant in doing so, did not yield any fruitful result. So they avoided any further confrontation. The Defendant in the meantime reclaimed the suit land and converted the same to ‘Kiaris’ and he is cultivating paddy over the same. Attempt to resolve the dispute amicably and recover the property from the hands of the Defendant with the intervention of village gentlemen, having failed, the Plaintiffs applied for measurement of the suit land. It is further stated that they are the lawful owners of the suit land and the Defendant has no right, title, interest over the suit land and he is a rank trespasser. The act of the Defendant since casts cloud over the title of the Plaintiffs in respect of the suit land, they filed the suit for declaration of title and document of the Defendant therefrom. 4. The Defendant while traversing the plaint averments has stated that there is already partition between the Plaintiffs in respect of the lands of their father and in that partition, they have excluded the suit land as it was not so available for partition. The Defendant claimed to have never trespassed over the suit land nor started reclaiming the same in the year 1988. He states that the father of the Plaintiff was the owner of 20 Acres 70 S.A. No.55 of 1996 Page 3 of 8 {{ 4 }} decimals of land in village Kusumghaty and he was the permanent resident of village Kuldiha. It was therefore not possible on his part to posses all the lands and he was only possessing the cultivable lands at Kusumghaty coming from Kuldiha and his other lands which were not fit for cultivation and lying fallow and abandoned. The suit land is stated to be Goda variety of land and as such was unfit for cultivation. It was lying fallow being adjacent to the Gharabari of the father of the Defendant. So, the father of the Defendant reclaimed the suit land and converted it to Kiaris and started to cultivate the same, 55 years prior to the suit and after his death, which occurred 30 years before the suit, there being partition of all his properties and in that partition, the suit land having been allotted to the defendant in his share, he is in possession of the same on his own. The possession is open, peaceful and continuous without any interruption from any quarter and as its owner. He thus claims to have acquired right, title, interest over the same by way of adverse possession and the title of the Plaintiffs over the suit land is said to have been extinguished since long. 5. The Trial Court on the above rival pleadings, framing 6 issues has rightly taken to issue no.4 & 5 for decision which concern with the claim of right, title and interest over the suit land as advanced by the Plaintiffs and the rival claim of the Defendant as to acquisition of title over the suit land by way of adverse possession. On examination of evidence and upon their evaluation, in the backdrop of the pleadings, the findings have been rendered that the Defendant has the title over the suit land by acquiring the same by way of adverse possession. In that view of the matter, the suit stood dismissed. S.A. No.55 of 1996 Page 4 of 8 {{ 5 }} 6. Being aggrieved by the dismissal of the suit the unsuccessful Plaintiffs having carried the First Appeal have also faced the same result, hence, the present second Appeal. 7. This Appeal has been admitted to answer the following substantial questions of law as indicated in ground No. D (i) (iv) and (v) which read as under:- i. Whether the defendant acquires title by adverse possession without proving loss of title of plaintiff as the defendant admit plaintiffs title and possession. ii. Whether until the defendant establishes loss of plaintiffs title on account of defendants being in adverse possession for more than the statutory period, the plaintiff can succeed on the basis of antecedent title. iii. Whether a person claiming to have perfected title by adverse possession has to establish not only possession but also such possession was obtained uninterrupted with hostile animus to the knowledge of the true owner. 8. Learned counsel for the Appellants submitted that the findings of the Courts below are the outcome of perverse appreciation of evidence and therefore, are not sustainable. According to him, the Courts below have not applied the settled position of law holding the field while accepting the case of the Defendant. He submitted that the plaintiffs having proved his antecedent title, the defendant, however, has not been able to discharge the heavy burden of proof that he has acquired title over the suit land by way of adverse possession by fulfilling all the required ingredients, most S.A. No.55 of 1996 Page 5 of 8 {{ 6 }} importantly, that his possession was with hostile animus, denying the title of the true owner and claiming the title unto himself. He, therefore, submitted that the Courts below ought to have decreed the suit. 9. None appeared on behalf of the Respondent. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also travelled through the plaint and written statement and have perused the evidence both orally and documentary. 11. The suit land is a portion of Plot No.1285 appertaining to Khata No.23 situated in village Kusumghaty. The total area of Plot No.1285 is 2 Acre 51 decimals. The suit has been filed in respect of an area of Ac.0.18 decimals which a private Amin being taken by the Plaintiff has demarcated by assigning a bi-number i.e.1285/2. The Kisam land is ‘Goda’. On going through the record of right (Ext.3), it is seen that the land has been recorded in the name of Plaintiffs being the three sons of Karia Majhi. The Defendant has advanced the claim of acquisition of title over the suit land by way of adverse possession. It is his case that since long from the time of his father, this land which was adjoining their homestead land and was lying fallow had been reclaimed and made fit for cultivation. He further states that his father was cultivating the same and thereafter, he is so cultivating. It is stated that this particular land was therefore not the subject matter of the partition which took place between the Plaintiffs i.e. the three brothers inter se. Law is well settled that mere long possession is not enough to establish a case of acquisition of title over the immovable property by way of adverse possession. The possession must have open, peaceful, continuous S.A. No.55 of 1996 Page 6 of 8 {{ 7 }} without any interruption and obstruction from any quarter for the period prescribed. The three classical requirements are ‘nec vi’, ‘nec clam’, ‘nec precario’. The possession must be adequate in continuity, in publicity and in extent to show that it is the possession adverse to the owner. 12. The Trial Court as well as the First Appellate Court appear to have gone for an elaborate discussion of the evidence adduced by the Defendant in support of his claim of acquisition of title by way of adverse possession and an indepth analysis bearing in mind the settled position of law as it reveals from the discussion made. The Courts below have relied upon the evidence of the Defendant and his witnesses who have stated that the suit land was converted to cultivable land by Simal Majhi, the father of the Defendant and after such conversion, he remained in possession of the same as of right. It has also been stated that the Plaintiff No.1 who is stated to be the Karta of the family of the Plaintiffs had all the knowledge of about such possession of the suit land by father of the Defendant as well as that of the Defendant. It is also stated that the father of the Plaintiffs namely Karia also knew about the same. Testing the veracity of the evidence of all these witnesses, the Courts below have concurrently recorded the finding that the Defendant being in possession of the suit land from the time of his father fulfilling all the requirements has acquired title over the suit land by way of adverse possession and thus the title of the Plaintiffs has long since stood extinguished. 13. On a careful reading of the evidence and the discussion made by the Court below with reference to the same; this Court does not find any perversity warranting interference. S.A. No.55 of 1996 Page 7 of 8 {{ 8 }} The substantial questions of law are accordingly answered against the Plaintiffs which run in favour of confirmation of the judgments and decrees passed by the courts below in dismissing the suit. 14.
Decision
In the result, the Appeal stands dismissed. No order as to cost. (D. Dash), Judge. Gitanjali S.A. No.55 of 1996 Page 8 of 8