The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.13 of 2000 In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 18.09.1999 & 01.10.1999 passed by the learned Additional District Judge, Sambalpur, in T.A. No.10/33 of 1994-97 confirming the judgment and decree dated 17.02.1994 and 19.02.1994 respectively passed by the learned Sub-Judge, Sambalpur, in T.S. No.67 of 1985. ---- Mst. Bhagabati Sharma & Another …. Appellants -versus- Mst. Muli Sharma & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.S.K. Dash Advocate For Respondents - Mr.N. Lenka Advocate CORAM: JUSTICE D.DASH Date of Hearing :03.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellants, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 18.09.1999 & 01.10.1999 passed by the learned Additional District Judge, Sambalpur, in T.A. No.10/33 of 1994-97. By the same, the Appeal filed by the predecessor-in-interest of
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the Respondents (Plaintiff) under section 96 of Code, in challenging S.A. No.13 of 2000 Page 1 of 8 {{ 2 }} the judgment and decree dated 17.02.1994 and 19.02.1994 respectively passed by the learned Sub-Judge, Sambalpur, in T.S. No.67 of 1985, has been dismissed. It may be stated here that during pendency of the First Appeal, the original Plaintiff, having died, his legal representatives have come on record on being substituted and they contested the First Appeal and are the present Respondents. 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 Trial Court. 3. The original Plaintiff, namely, Onkarmal Sharma, in his plaint, had pleaded that he owned having purchased the land measuring Ac.0.06 decimals out of Hal Settlement Plot No.1686 situated at Rengali. He then had permitted the husband and father of the Defendants, namely, Kedarmal Sharma to occupy and used the land measuring Ac.0.02 decimals out of that. The Plaintiff had constructed two shop rooms and a house on the remaining Ac.0.4 decimals of land. For such construction, the Plaintiff had availed loan of Rs.1500/- (One Thousand Five Hundred) from the Block Office under Villager Housing Project scheme in the same year and under the said scheme, said Kedarmal Sharma had also availed loan and constructed a house over Ac.0.02 decimals of land. The Plaintiff claims that he had let out two shop rooms built upon the land measuring Ac.0.04 decimals and lived in a house constructed over
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there, adjoining the said shop rooms. It is stated that Kedarmal Sharma also lived with his family in his newly constructed house. There was cordial relationship between the Plaintiff and Kedarmal S.A. No.13 of 2000 Page 2 of 8 {{ 3 }} Sharma. Sometime in the year 1968, the Plaintiff, with his family left for his native Village in the State of Rajasthan. He then had given the suit house and documents relating to the same in the custody of Kedarmal Sharma. Kedarmal Sharma, in the absence of the Plaintiff, was looking after the property and managing the same and after his death, his wife (Defendant No.1) managed the suit house and was collecting the rent from the tenants, who had been in occupation of those two shop rooms constructed by the Plaintiff. In October, 1982, the Plaintiff, with his family, returned to Rengali. The Defendants then, however, did not allow them to enter into the suit house. So, the Plaintiff served a notice through his lawyer calling upon the Defendants to deliver vacant possession of the suit house. The Defendants then, in reply to the said notice, stated to have acquired title over the suit property by way of adverse possession. The Plaintiff states that the possession of Kedarmal Sharma and after him, the possession of the Defendants is permissive. It is further stated that taking advantage of the absence of the Plaintiff, the Defendants have managed to obtain the settlement Record of Right in respect of the suit land in their name by falsely showing that the suit house has been sold to them by the Plaintiff way back in the year 1961. The Plaintiff, therefore, filed the suit. 4. The Defendants, traversing the plaint averments, have stated that the Plaintiff had not completed the construction work over the suit land and he did not repay the loan that he had availed. So, he requested Kedarmal Sharma to repay the principal loan amount together with the interest accrued thereon. In lieu of that, the Plaintiff relinquished his right over the land measuring Ac.0.04 decimals, with the half constructed house standing thereon. It is stated that Page 3 of 8 S.A. No.13 of 2000 {{ 4 }} evidencing the above transaction, the Plaintiff had executed the document on 24.08.1968. So, it is said that from that date onwards, Kedarmal Sharma and thereafter, the Defendants remained in possession of the suit house continuously. They have cleared the loan availed by the Plaintiff. It is also alternatively stated that having remained in possession of the suit house in an open and peaceful manner and that too continuously, for upward of the period prescribed, the Defendants have perfected title over the suit land by way of adverse possession. 5. On the above rival pleadings, the Trial Court has framed five issues. Of those, the important are Issue Nos.III & IV, which relate to the competing claim over the suit property projected by the Plaintiff on one hand and the Defendants on the other. The above issues, upon examination of the evidence and their evaluation, have been answered in favour of the Plaintiff and against the Defendants. The Trial Court, on assessment of the evidence, has held that the Plaintiff had completed the construction of the house. It has also been held that the possession of the suit land by the Defendants is permissive. With such finding, the Trial Court decreed the suit. 6. The Defendants, being aggrieved by the judgment and decree passed by the Trial Court, having carried the First Appeal, have failed in their attempt to non-suit the Plaintiff. 7. The present Appeal has been admitted to answer the following substantial question of law:- “Whether the Plaintiff has proved beyond doubt that the document as in Ext.1 has been executed fraud and playing undue influence and whether Ext.1 is voidable and whether the Plaintiff’s title over the suit property, having been Page 4 of 8 S.A. No.13 of 2000 {{ 5 }} admitted by the Defendants; they have made out a case of acquisition of title over the suit land by way of adverse possession so as to non-suit the Plaintiff and whether the answer on that score returned by the Courts below is the outcome of perverse appreciation of evidence and being not alive to the settled principles of law holding the field. 8. Mr.S.K.Dash, learned counsel for the Appellants submitted that the Defendants, having proved by overwhelming evidence tendered from their side that they have been in possession of the suit land and house pursuant to Ext.1 in an open, peaceful manner and continuously from that year 1968 as its owner exercising all the rights of ownership to the knowledge of the Plaintiff, the finding ought not to have been rendered that the Defendants have not acquired the right, title and interest over the suit land by way of adverse possession even though said transaction is invalid. He submitted that the Courts below have completely gone wrong both on fact and law by holding that the possession of the suit house by the Defendants as permissive in nature. In this connection, he has invited the attention of this Court to the recitals of Ext.1. He has then submitted that even though it is said for a moment that the document being an unregistered, is void in the eye of law and no title in respect of the said property has passed form the hands of the Plaintiff to the hands of Kedarmal Sharma by that transaction as is evident from the document; under no circumstance, the nature of possession of the suit land by the recipient under the transaction, as shown in the document, can be said to be permissive and in that way, the Defendants having remained in possession of the suit house for all these period from the year 1968 till the suit, the Courts below ought to have held that the right, title and interest of the Plaintiff over the S.A. No.13 of 2000 Page 5 of 8 {{ 6 }} suit house have since been extinguished and the Plaintiff’s suit ought to have been dismissed. 9. Mr.N.Lenka, learned counsel for the Respondents submitted all in favour of the findings of the Courts below. According to him, the title of the Plaintiff over the suit land having been admitted, the Defendants, in the present case, have utterly failed to discharge the burden of proof that they having remained in possession of the suit property openly, peacefully and continuously, exercising all the rights of ownership and more importantly, denying the title of the Plaintiff and exhibiting the hostile animus to the knowledge of the Plaintiff; the Courts below are absolutely right in decreeing the suit. He submitted that the possession of the Defendants even if is said to be pursuant to that Ext.1, it cannot be said to be as that of the owners. 10. Keeping in view the submissions made, in order to find out the answer to the substantial question of law, I have carefully read the judgments passed by the Courts below. The evidence both oral and documentary tendered by the parties have been travelled through. 11. In the instant case, when the Plaintiff claims that he had the title over the suit land, the Defendants do not deny the same. The Defendants also do not deny that the Plaintiff was in possession of the suit property uptil 23.08.1968. They, however, state that from 24.08.1968, Kedarmal Sharma possessed the property on the basis of the document executed by the Plaintiff vide Ext.1. The document (Ext.1) is on a plain paper, which finds the narration that the suit property were handed over to Kedarmal Sharma. This Kedarmal Sharma is the nephew of the Plaintiff (brother’s son). It has no where been indicated in the document that the Plaintiff transferred all his Page 6 of 8 S.A. No.13 of 2000 {{ 7 }} right, title and interest over the suit land in favour of the Kedarmal Sharma. Although it is said therein that Kedarmal Sharma would pay the land dues etc., it has been time and again mentioned therein that the property was handed over to Kedarmal Sharma. The document, being given a careful reading; its non-registration aspect being even ignored for the time being; it is not possible to term this document either as a document of sale or a deed of relinquishment. Furthermore, the question of this deed being taken as deed of relinquishment does not at all arise as Kedarmal Sharma is totally a stranger to the property. The document (Ext.1) is not a registered one and it is also not indicated therein that the amount of loan as it was outstanding on that day was fixed as the consideration for the purpose of sale. In view of all these aforesaid; we cannot here say that the possession of Kedarmal Sharma pursuant to this document was as the owner of the property in question. In that view of the matter, Kedarmal Sharma and these Defendants having remained in possession of the property, they cannot be said to have acquired right, title and interest over the property by way of adverse possession as they have neither pleaded nor proved that after this document from a particular date thereafter; they denied the title of the Plaintiff and began to possess the suit property to the knowledge of the Plaintiff exercising all the rights as its owner afresh, exhibiting hostile animus, shunning or discontinuing their earlier status in possessing the suit land based upon Ext.1 and completely putting that to back burner. The submission that the Defendants are in possession of the property pursuant to Ext.1 even being accepted, they cannot in law be said to have acquired title over the same by way of adverse possession for the reasons, as aforestated. S.A. No.13 of 2000 Page 7 of 8 {{ 8 }} In that view of the matter, the answer to the substantial question of law run in favour of confirmation of the judgments and decrees passed by the Courts below. 12. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash) Judge Basu S.A. No.13 of 2000 Page 8 of 8