The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.187 of 1999 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Anirudha Kuanr and others -versus- Natabar Sethi and another …. …. Appellants Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.B.N.Bhuyan,Adv. Mr.S.S.Mohapatra,Adv. For Respondents - Mr.R.K.Mohanty,Sr.Adv. Ms.S.Mohanty,Adv. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :05.01.2024 :: Date of Judgment :27.02.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellants of this Second Appeal were the plaintiffs before the Trial Court in the suit, vide T.S. No.172 of 1988-I and they were the appellants before the First Appellate Court in the First Appeal vide T.A. No.112 of 1994. The respondents of this Second Appeal were the defendants before the Trial Court in the suit, vide T.S. No.172 of 1988-I and they were the S.A. No.182 of 1999 Page 1 of 15 {{ 2 }}
Legal Reasoning
respondents before the First Appellate Court in the First Appeal vide T.A. No.112 of 1994. 3. The suit of the plaintiffs (appellants in this Second Appeal) vide T.S. No.172 of 1988-I before the Trial Court was a suit for declaration and permanent injunction. 4. As per the averments made by the plaintiffs in their plaint, the suit properties were originally under the Zamidari Estate of the ex-landlord (zamidar) Bira Kishore Das. In the year 1938, the said Bira Kishore Das inducted the father of the plaintiffs i.e. Biswanath Kuanr and his brother
Legal Reasoning
Sripati Kuanr as the tenants of the suit properties. Accordingly, on the basis of the induction made by the ex-intermediary Bira Kishore Das to the father of the plaintiffs and his brother i.e. Biswanath Kuanr and Sripati Kuanr, they (Biswanath Kuanr and Sripati Kuanr) were possessing the suit properties as the tenants under the ex-intermediary Bira Kishore Das on payment of annual rent to him (ex-intermediary/zamidar-Bira Kishore Das). But, subsequent thereto, there was a family partition between the father of the plaintiffs i.e. Biswanath Kuanr and his brother Sripati Kuanr in the year 1939 in respect of the suit properties along with their other joint properties and in such partition, the suit properties had fallen into the share of the father of the plaintiffs. Accordingly, since the year 1939, the father of the plaintiffs i.e. Biswanth Kuanr was cultivating the suit properties exclusively by raising 1242 varieties of paddies on the Page 2 of 15 S.A. No.187 of 1999 {{ 3 }} same. But, in or about 1954-55, the ex-intermediary estates in the suit area were abolished and on the basis of the abolition of the ex- intermediary estates, the suit properties vested with the Government and even after vesting of the suit properties with the Government, the father of the plaintiffs i.e. Biswanath Kuanr continued his possession over the suit properties as before under the State Government. Subsequent thereto, the Hal settlement operation was started in the suit area and in the Hal settlement, though the suit properties were erroneously recorded in the name of the defendant No.2 (Hadibandhu Mohanty) under Hal Khata No.698, but there was noting of possession in the name of the father of the plaintiffs i.e. Biswanath Kuanr in the remarks column of the suit plot as a forcible possessor thereof. Inspite of recording of the suit properties erroneously in Hal R.o.R. under Hal Khata No.698 in the name of the defendant No.2 (Hadibandhu Mohanty), the father of the plaintiffs i.e. Biswanath Kuanr was possessing the suit properties as before, in which, the defendant No.2 had no manner of right, title, interest and possession. When on the basis of the wrong recording of the suit properties in the Hal R.o.R. in the name of the defendant No.2, he (defendant No.2) created disturbances in the possession of the father of the plaintiffs in the suit properties, then, in order to avoid future disputes and litigations with defendant No.2, there was a settlement in September, 1985 between the father of the plaintiffs and defendant No.2 and in such settlement, it was Page 3 of 15 S.A. No.187 of 1999 {{ 4 }} agreed by the defendant No.2 that, he would sell away the suit properties in favour of the father of the plaintiffs for consideration of Rs.2,000/- and the father of the plaintiffs paid Rs.500/- out of consideration amount of Rs.2,000/- as an advance to the defendant No.2 towards the part performance of the above contract between them. Subsequent thereto, the defendant No.1 had managed to execute a sale deed in respect of the suit properties in his name as a vendee from the defendant No.2 vide R.S.D. No.1488 dated 16.04.1988 by practicing undue influence on the defendant No.2. For which, the said sale deed bearing No.1488 dated 16.04.1988 executed by the defendant No.2 in favour of the defendant No.1 in respect of the suit properties is a sham and fraudulent deed and that sale deed has never been acted upon. Because, the defendant No.2 has not handed over possession of the suit properties to the defendant No.1 as the suit properties were not under the possession of the defendant No.2, but the same were under the possession of the father of the plaintiffs. When the father of the plaintiffs (Biswanath Kuanr) expired, then the suit properties left by him, devolved upon the plaintiffs and accordingly, the plaintiffs were possessing the suit properties like their father Biswanath Kuanr after the death of their father Biswanath Kuanr and as such the plaintiffs are possessing the suit properties continuously since the time of their father i.e. since the year 1938 to the knowledge of all including the defendants. Therefore, the Page 4 of 15 S.A. No.187 of 1999 {{ 5 }} plaintiffs have perfected their title over the suit properties through adverse possession. The defendants have no manner of right, title, interest and possession in the same. When the defendant No.1 created disturbance in the possession of the plaintiffs over the suit properties, a criminal proceeding under Section 145 of the Cr.P.C. was initiated in the Court of Executing Magistrate, Kujang vide Criminal Misc. No.82 of 1988 between them for prevention of breach of peace. As the defendant No.1 tried to take the possession of the suit properties from the plaintiffs on the basis of the aforesaid fake deed bearing No.1488 dated 16.04.1988 executed by the defendant No.2 in favour of the defendant No.1, then without getting any way, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.172 of 1988-I against the defendants praying for passing a decree of declaration of right, title, interest and possession over the suit properties along with a decree of permanent injunction against the defendants in order to restrain them (defendants) and/or their agents permanently from entering into the suit properties. 5. Having been noticed from the Trial Court in the suit vide T.S. No.172 of 1988-I, the defendant No.1 contested that suit of the plaintiffs by filing written statement, but whereas, the defendant No.2 was set ex- parte. S.A. No.187 of 1999 Page 5 of 15 {{ 6 }} The defendant No.1 filed his written statement denying the averments made by the plaintiffs in their plaint by taking his stands therein that, the defendant No.2 (Hadibandhu Mohanty) was the exclusive owner and was in peaceful possession over the suit properties. As the suit properties were the stithiban properties of the defendant No.2 (Hadibandhu Mohanty), for which, the suit properties were recorded exclusively in the name of Hadibandhu Mohanty (defendant No.2) in the Hal R.o.R. The possession of the father of the plaintiffs as a forcible possessor of the Hal suit plot was erroneously recorded in the Hal R.o.R., though the father of the plaintiffs had no interest and possession in the suit plot. For which, the noting of forcible possession in the remarks column of the Hal R.o.R. of the suit plot in favour of the father of the plaintiffs does not create any right in favour of the father of the plaintiffs in the suit properties. Because, the said noting of forcible possession has no legal sanctity, for which, the same is to be ignored as per law. The averments made by the plaintiffs in their plaint about the execution of an agreement between the father of the plaintiffs and defendant No.2 in the month of September, 1985 for selling the suit properties by the defendant No.2 in favour of the father of the plaintiffs is a myth and an imaginary things. As such neither the father of the plaintiffs nor the plaintiffs were/are in possession over the suit properties at any point of time. Hadibandhu Mohanty (defendant No.2) sold the suit Page 6 of 15 S.A. No.187 of 1999 {{ 7 }} properties to him (defendant No.1) by executing and registering the sale deed No.1488 on dated 16.04.1988 for a consideration of Rs.5000/- and delivered possession thereof. Accordingly, since the date of purchase i.e. since 16.04.1988, he (defendant No.1) had/has been possessing the suit properties being the exclusive owner thereof. Therefore, the plaintiffs have no right, title, interest and possession over the suit properties. The plaintiffs are the strangers to the suit properties. They (plaintiffs) have filed the suit with some oblique motive only for their illegal gain and to harass him (defendant No.1). For which, the suit of the plaintiffs is liable to be dismissed with costs. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 (five) numbers of issues were framed by the Trial Court in the suit vide T.S. No.172 of 1988-I and the said issues are:- Issues (i) Whether the suit is maintainable? (ii) Whether the plaintiffs have cause of action to file the suit? (iii) whether the registered sale deeds executed on 21.08.81 and 16.4.88 are valid, genuine and legal? (iv) Whether the plaintiffs have right, title, interest and possession over the suit properties? (v) Whether the plaintiffs are entitled to get the reliefs claimed? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, they (plaintiffs) examined altogether six S.A. No.187 of 1999 Page 7 of 15 {{ 8 }} numbers of witnesses from their side including plaintiff No.1 as P.W.6 and they (plaintiffs) relied upon two documents vide Exts.1 and 2. On the contrary, in order to nullify/defeat, the suit of the plaintiffs, the defendant No.1 examined 5 numbers of witnesses from his side including him (defendant No.1) as D.W.1. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues against the plaintiffs and in favour of the defendants and basing upon the findings and observations made by the Trial Court in all the issues against the plaintiffs, the Trial Court dismissed the suit of the plaintiffs vide T.S. No.172 of 1988-I on contest against the defendant No.1 and ex parte against the defendant No.2, but without cost as per its judgment and decree dated 20.09.1994 and 07.10.1994 respectively assigning the reasons that, the materials on record established the title and possession of the defendant No.1 over the suit properties, for which, the claim of title and possession of the plaintiffs on the same have became inacceptable. 9. On being aggrieved with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.172 of 1988-I passed by the Trial Court on dated 20.09.1994 and 07.10.1994 respectively, they (plaintiffs) challenged the same by preferring the First Appeal vide T.A. S.A. No.187 of 1999 Page 8 of 15 {{ 9 }} No.112 of 1994 being the appellants against the defendants by arraying them (defendants) as respondents. 10. After hearing from both the sides, the First Appellate Court dismissed the First Appeal vide T.A. No.112 of 1994 of the plaintiffs on contest as per its judgment and decree dated 05.12.1998 and 16.12.1998 respectively concurring/accepting the findings and observations made by the Trial Court in the judgment and decree passed in T.S. No.172 of 1988-I against the plaintiffs and in favour of the defendants. 11. On being aggrieved with the aforesaid judgment and decree dated 05.12.1998 and 16.12.1998 respectively passed by the First Appellate Court in T.A. No.112 of 1994 in dismissing that First Appeal of the plaintiffs, they (plaintiffs) challenged the same by preferring this Second Appeal being the appellants against the defendants arraying them (defendants) as respondents. 12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether once it is established that, the suit land were recorded as Anabadi land in the Sabik R.o.R. in absence of any settlement or lease under the provisions of O.E.A. Act can any person other than tenant will acquire right, title, interest over it merely because his name recorded in the Hal R.o.R? (ii) Whether, for proving agricultural tenancy, any document of lease, payment of salami or rent receipt is absolutely necessary? 13. I have already heard from the learned counsels of both the sides. S.A. No.187 of 1999 Page 9 of 15 {{ 10 }} 14. It is the specific/definite case of the plaintiffs in their plaint that, defendant No.2 (Hadibandhu Mohanty) had agreed to execute the sale deed in respect of the suit properties in favour of the father of the plaintiffs for a consideration of Rs.2,000/- by taking Rs.500/- as an advance in September, 1985, but instead of executing and registering the sale deed in favour of the father of the plaintiffs, the defendant No.2 sold the suit properties to the defendant No.1 by executing and registering the sale deed bearing No.1488 dated 16.04.1988 for a consideration of Rs.5,000/-. The above pleadings of the plaintiffs itself is going to show that, they (plaintiffs) were not the owners of the suit properties, but the defendant No.2 (Hadibandhu Mohanty) was the owner of the suit properties, for which, the plaintiffs were trying to purchase the suit properties from him (defendant No.2-Hadibandhu Mohanty). When it is the own case of the plaintiffs that, though the defendant No.2 was agreed to sale the suit properties as per an agreement in month of September, 1985 in favour of the father of plaintiffs, but he (defendant No.2) has not executed any sale deed in respect of the suit properties either in favour of the father of the plaintiffs or in favour of the plaintiffs, then, at this juncture, it cannot at all be held that, the plaintiffs are the owners of the suit properties. S.A. No.187 of 1999 Page 10 of 15 {{ 11 }} On the basis of the so called agreement, neither the father of the plaintiffs nor the plaintiffs can be the owner of the suit properties. Because, any agreement for sale cannot create any interest in favour of the proposed vendee. On this aspect, the propositions of law, has already been clarified by Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) 2024 (1) CCC 103 (Karn.)—Master Thejas and Anr. vrs. C.R. Babu and Ors.— Agreement to Sell 3 No right is created under agreement for sale in respect of schedule property, except right to seek specific performance of contract. (ii) 2024 (1) CCC 29 (SC)—Munishamappa Vrs. M. Rama Reddy & Ors.4Agreement to Sell4its value4Agreement to Sell is not a conveyance; it does not transfer ownership rights or confers any title. 15. When as per law, any agreement for sale does create any interest in the suit properties in favour of the proposed vendee and when it is the own case of the plaintiffs that, instead of selling the suit properties to the father of the plaintiffs, the defendant No.2 sold the suit properties to the defendant No.1 through R.S.D. No.1488 dated 16.04.1988, then at this juncture, it can easily be held on the basis of the above own pleadings of the plaintiffs that, the ownership of the suit properties has been transferred from the defendant No.2 to defendant No.1 through the R.S.D. No.1488 dated 16.04.1988. S.A. No.187 of 1999 Page 11 of 15 {{ 12 }} The plaintiffs have also further pleaded in their plaint that, they are the owners over the suit properties by inheriting the same from their father (Biswanath Kuanr) and as well as by perfecting their title on the same by way of adverse possession through their long and continuous possession since the time of their father i.e. since the year 1938. 16. It is very fundamental in civil law that, when the plaintiffs like this suit at hand claim their title over the suit properties through adverse possession, then as per law, they indirectly admit the title of the defendants over the suit properties. Because as per law, without admitting the title of the defendants over the suit properties, they (plaintiffs) cannot claim their title on the same through adverse possession. Likewise, when the plaintiffs like in this suit at hand, claim their title over the suit properties by way of inheritance and succession from their father, they (plaintiffs) are precluded under law to claim their title over the suit properties through adverse possession. Because, the claim of title through inheritance and succession as well as the claim of title through adverse possession at a time simultaneously over the suit properties against the defendants are mutually inconsistent and destructive with each other. 17. Here in this suit at hand, the plaintiffs have claimed their title over the suit properties by way of inheritance and succession as the successors of Biswanath Kuanr, but at the same time, they (plaintiffs) have claimed Page 12 of 15 S.A. No.187 of 1999 {{ 13 }} their title over the suit properties through adverse possession against the defendants. Therefore, the claim of title of the plaintiffs over the suit properties through the above two ways at a time simultaneously i.e. through inheritance and succession and as well as through adverse possession being inconsistent and destructive with each other, none of the above pleas of the plaintiffs has become acceptable under law. On this aspect, the propositions of law, has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) 2005(3) CCC 167 (Mad.)—Pappayammal Vrs. Palanisamy & Ors.4Plea of adverse possession4A party can plead adverse possession, only when, he admits that, another party has got title. (ii) IV (2005) Civ.L.T.-378 (P & H)—Sultan & Ors. Vrs. Kasturi & Ors.—Limitation Act, 1963—Article 64 & 65—Plea of adverse possession is an indirect admission of ownership of person against whom such claim is advanced. (iii) 2015 (II) CLR (S.C.) 981—M. Venkatesh and Ors. Vrs. Commissioner, Bangalore Development Authority— Indian Limitation Act, 1963- Article 64 & 65 3 Where the plaintiffs claim to be the owners of suit property on the basis of inheritance, they cannot take the plea of adverse possession over the very same property. (iv) II (2016) Civil Law Times 583 (Del.)—Shekhar Shah (DR.) Vrs. Government of Maharashtra——(Para 20)—The petitioner having claimed lawful title to the property in his possession through Maharaja Pratapsinhrao Gaekwad and/or his heirs cannot simultaneously take the plea of adverse possession. (v) (1996)1 SCC 639—Mohan Lal (deceased) through his LRs. Kachru and others Vrs. Mirza Abdul Gaffar and another (2004) 10 SCC 779—Karnataka Board of Wakf Vrs. Government of India and others— S.A. No.187 of 1999 Page 13 of 15 {{ 14 }} (1995) 2 SCC 543—Annasaheb Bapusaheb Patil and others Vrs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and Heirs and others (2009) 13 SCC-229—L.N.Aswathama and another Vrs. P.Prakash—Adverse Possession—Pleas based on title and adverse possession are mutually destructive; adverse possession does not begin to operate until title is renounced. 18. As per the discussions and observations made above, when it is the own case of the plaintiffs that, Hadibandhu Mohanty (defendant No.2) was agreed to execute the sale deed in respect of the suit properties in favour of their father, but the said Hadibandhu Mohanty without executing any sale deed in respect of the suit properties in favour of their, he (Hadibandhu Mohanty) executed the sale deed bearing No.1488 dated 16.04.1988 in respect of the suit properties in favour of the defendant No.1 for a consideration amount of Rs.5,000/- and when the claim of title of the plaintiffs over the suit properties by way of inheritance and succession as well as by way of adverse possession being mutually inconsistent and destructive with each other have become inacceptable being inadmissible under law, then at this juncture, it is held that, the aforesaid pleadings and evidence of the plaintiffs are going to show that, the defendant No.1 is the owner of the suit properties by purchasing the same from its owner Hadibandhu Mohanty (defendant No.2) as per the sale deed bearing No.1488 dated 16.04.1988 and the plaintiffs have no interest on the same. S.A. No.187 of 1999 Page 14 of 15 {{ 15 }} Therefore, the concurrent findings made by the Trial Court and as well as by the First Appellate Court in T.S. No.172 of 1988-I and in T.A. No.112 of 1994 respectively in dismissing the suit of the plaintiffs vide T.S. No.172 of 1988-I are not at all interferable through this Second Appeal filed by the appellant (plaintiffs). For which, there is no merit in the Second Appeal filed by the appellants (plaintiffs). The same must fail. 19. In the result, the Second Appeal filed by the appellants (plaintiffs) is dismissed on contest, but without cost. The judgments and decrees passed by the Trial Court in T.S. No.172 of 1988-I and as well as by the First Appellate Court in T.A. No.112 of 1994 in dismissing the suit of the plaintiffs on contest against the defendant No.1 and ex parte against the defendant No.2 are confirmed. Orissa High Court, Cuttack. 27th February, 2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Feb-2024 13:34:35 S.A. No.187 of 1999 Page 15 of 15