The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.226 of 2001 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Khairu Naik and others …. Appellants Danardan Naik …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. G.S. Namtoar, Advocate. For Respondent - Mr. R.K. Mohanty, Sr.Advocate. Ms. S. Mohanty, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :11.07.2024 :: Date of Judgment :26.07.2024 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.26 of 1990-I and they were the appellants before the First Appellate Court in the First Appeal vide T.A. No.11 of 1997. The respondent of this Second Appeal was the defendant before the Trial Court in the suit vide T.S. No.26 of 1990-I and he was the S.A. No.226 of 2001 Page 1 of 16
Legal Reasoning
respondent before the First Appellate Court in the First Appeal vide T.A. No.11 of 1997. 3. The suit of the plaintiffs (appellants in this Second Appeal) before the Trial Court vide T.S. No.26 of 1990-I against the defendant (respondent in this 2nd appeal) was a suit for declaration and permanent injunction in alternative recovery of possession. 4. As per the case of the plaintiffs, the disputed properties of the suit are Schedule ‘A’ & ‘B’ properties. The plaintiffs are sons of Kuladhar Naik. According to them (plaintiffs), the suit properties were the properties of their father Kuladhar Naik and after the death of their father Kuladhar Naik, the suit properties devolved upon them (plaintiffs). The R.o.R. of the Schedule ‘A’ properties was published in the name of their father Kuladhar Naik and he was paying rent of the same. When after the death of their father Kuladhar Naik, the Schedule ‘A’ properties left by him devolved upon them (plaintiffs), then they (plaintiffs) are in joint possession over the same and they are paying rent of the same to the Government. The defendant had/has no right, title, interest and possession over the Schedule ‘A’ & ‘B’ suit properties. None of the plaintiffs has sold the suit properties to the defendant. The defendant is a rich and mischievous person. When the defendant found that, the plaintiffs are poor, simple and illiterate, then he (defendant) tried S.A. No.226 of 2001 Page 2 of 16 to grab the suit properties illegally from them (plaintiffs). Any of the plaintiffs has not given delivery of possession of any portion of the suit properties to the defendant. When the defendant created disturbances in the possession of the plaintiffs over the suit properties, then a proceeding under Section 144 of Cr.P.C. was initiated at the instance of the plaintiff No.3 against the defendant before the Executive Magistrate, Keonjhar and the said proceeding vide C.M.C. No.377/87 under Section 144 of Cr.P.C. was converted to a proceeding under Section 145 of Cr.P.C. During the pendency of the said proceeding vide C.M.C. No.377/87 under Section 145 of Cr.P.C., the defendant mutated the suit properties in his name through Mutation Case No.287/87 without the knowledge of the plaintiffs. For which, the plaintiffs challenged the same by filing a mutation appeal vide Mutation Appeal No.7/88 before the S.D.O. Keonjhar and the said mutation appeal of the plaintiffs was allowed and an order for mutation passed in favour of the defendant in respect of the suit properties was set aside. But, the C.M.C. No.377/87 under Section 145 of Cr.P.C. was allowed in favour of the defendant, wherein the possession of the defendant was declared. For which, the plaintiff No.3 challenged the same by preferring a revision vide Criminal Revision No.48/89 before the learned Sessions Judge, Keonjhar. When on the strength of the order passed in the proceeding under Section 145 of S.A. No.226 of 2001 Page 3 of 16 Cr.P.C. vide C.M.C. No.377/87, the defendant tried to possess the suit properties forcibly, then they (plaintiffs) approached the Civil Court by filing the suit vide T.S. No.26 of 1990-I against the defendant praying for declaration of their right, title and interest over the Schedule ‘A’ suit properties and to confirm their possession on the same and also to declare that, the plaintiffs have right to possess the Schedule ‘B’ suit properties and to injunct the defendant permanently from creating any sort of disturbances in their possession over the suit properties, in alternative to recover the possession of the suit properties from the defendant, if they (plaintiffs) are found to be dispossessed during the pendency of the suit along with other reliefs, to which, they (plaintiffs) are entitled for. 5. Having been noticed from the Trial Court in the suit vide T.S. No.26 of 1990-I filed by the plaintiffs, the defendant contested the same by filing his written statement denying the averments made by the plaintiffs in their plaint taking his stands therein that, the properties described in Schedule ‘A’ of the plaint was originally the joint and undivided properties of the plaintiffs, but as per partition between the plaintiffs in the year 1971 through metes and bounds, the Schedule ‘A’ suit properties had fallen into the share of the plaintiff Nos.1 & 2 and accordingly, the plaintiff Nos.1 & 2 were the owners and in possession over the Schedule ‘A’ properties on the basis of their aforesaid partition. S.A. No.226 of 2001 Page 4 of 16 When they (plaintiff Nos.1 & 2) were the owners and in possession over the Schedule ‘A’ properties, they (plaintiff Nos.1 & 2) gave proposal to him (defendant) for selling the Schedule ‘A’ suit properties in order to meet their legal necessities and the said sale proposal of the Schedule ‘A’ suit properties given by the plaintiff Nos.1 & 2 was accepted by the defendant. For which, the plaintiff Nos.1 & 2 executed and registered a sale deed on dated 15.05.1973 in respect of Schedule ‘A’ suit properties for a consideration amount of Rs.300/- in favour of the defendant and delivered the possession of the same to the defendant and as such since 15.05.1973, he (defendant) has been possessing the Schedule ‘A’ suit properties. He (defendant) has amalgamated the Schedule ‘A’ suit properties with his Schedule ‘B’ suit properties, to which, he was possessing prior to the purchase of the Schedule ‘A’ properties and accordingly, the defendant has been possessing the Schedule ‘A’ & ‘B’ suit properties continuously, in which, the plaintiffs have no interest and possession. As such, he had/has been possessing Schedule ‘A’ properties since 15.05.1973 and Schedule ‘B’ suit properties prior to that. But, at the time of execution and registration of the sale deed dated 15.05.1973 in respect of the Schedule ‘A’ properties by the plaintiff Nos.1 & 2 in his favour due to the wrong instructions of the vendors thereof i.e. plaintiff Nos.1 & 2, the particulars of the sold ‘A’ Schedule properties were S.A. No.226 of 2001 Page 5 of 16 wrongly described in the schedule of the sale deed dated 15.05.1973, though the vendors thereof i.e. plaintiff Nos.1 & 2 had delivered the possession of Schedule ‘A’ suit properties to him (defendant) after receiving the due consideration amount for the same. Accordingly, since 15.05.1973, he (defendant) is in possession over the Schedule ‘A’ suit properties. He (defendant) is also in possession over the Schedule ‘B’ suit properties since the time of his father, which is prior to 15.05.1973. Each of the plaintiffs has also sold their separately allotted properties in their metes and bounds partition in the year 1971 to Gourahari Naik and Mahura Naik in the year 1978. As, he (defendant) is the owner and in possession over the Schedule ‘A’ suit properties and as his possession has been declared in a proceeding under Section 145 of Cr.P.C. vide C.M.C. No.377/87 over Schedule ‘B’ suit properties, for which, the plaintiffs have no right, title, interest and possession over the suit properties. Therefore, the suit of the plaintiffs is liable to be dismissed against him (defendant) with cost. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 11 (eleven) numbers of issues were framed by the Trial Court in the suit vide T.S. No.26 of 1990-I and the said issues are:- S.A. No.226 of 2001 Page 6 of 16 ISSUES (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) Is the suit maintainable under law? Is there any cause of action to file the suit? Is the suit barred by law of limitation? Is the suit bad for non-joinder of necessary party? Is the suit grossly undervalued? Is the registered sale deed dated 15.05.1973 in respect of the Schedule ‘A’ land is valid, genuine and binding on the plaintiffs? Whether the defendant is in possession of suit A land and suit B land openly, peacefully, continuously for more than 12 years? Is the order passed on 30.05.1987 in C.M.C. 377/87 in operative, null and void? To what other relief the plaintiff is entitled to? Whether the suit is bad for indefiniteness in description of the suit land? Whether the plaintiffs have right, title, and interest over the suit lands? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendant in the suit vide T.S. No.26 of 1990-I, they (plaintiffs) examined two (2) witnesses from their side including plaintiff No.3 as P.W.1 and relied upon the documents vide Exts.1 to 4. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant examined two (2) witnesses on his behalf including him as D.W.1 and exhibited series of documents from his side vide Exts.A to J. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered issue Nos.1 to 4, 7, 9, 10 & 11 against the plaintiffs and in favour of the defendant, as issue Nos.5, 6 & 8 were not pressed by the parties and basing upon the findings and observations made by the Trial Court in the issue Nos.1 to 4, 7, 9, 10 & 11 against the plaintiffs and in favour of the defendant, the Trial Court dismissed the suit of the plaintiffs on contest against the defendant without cost as per its judgment and decree dated Page 7 of 16 S.A. No.226 of 2001 20.12.1996 and 18.01.1997 respectively assigning the reasons that, ‘A’ schedule suit properties had fallen in the share of the plaintiff Nos.1 & 2 as per metes and bounds partition with their brothers in the year 1971 and while on the basis of the said metes and bounds partition, the plaintiff Nos.1 & 2 were the owners and in possession over the Schedule ‘A’ suit properties, they (plaintiff Nos.1 & 2) sold the same to the defendant by executing and registering the sale deed dated 15.05.1973 giving delivery of possession of the same to him (defendant) and accordingly, the defendant has been possessing the Schedule ‘A’ suit properties continuously since 15.05.1973, though the particulars of the sold Schedule ‘A’ suit properties were wrongly described in the schedule of that sale deed dated 15.05.1973 as per the wrong instructions of the vendors thereof i.e. plaintiff Nos.1 & 2. The plaintiffs have not taken any step as yet to recover the possession of the Schedule ‘A’ suit properties from him (defendant). Therefore, due to the continuous possession of the defendant over the schedule ‘A’ suit properties on the basis of the sale deed dated 15.05.1973 executed and registered by the plaintiff Nos.1 & 2 in favour of the defendant, the right to recover the possession of the same from the defendant by the plaintiffs has been extinguished by virtue of Section 27 of the Limitation Act, 1963. For which, the plaintiffs are not S.A. No.226 of 2001 Page 8 of 16 entitled for the declaration of their title and possession over the Schedule ‘A’ suit properties. The Trial Court had also assigned reasons for dismissing the suit of the plaintiffs in respect of Schedule ‘B’ suit properties that, when as per the final order passed in C.M.C. No.377/87 under Section 145 of Cr.P.C., the possession of the defendant over the Schedule ‘B’ suit properties has been declared and the said possession of the defendant over the Schedule ‘B’ properties has been confirmed in Criminal Revision No.48/89 by the learned Sessions Judge, Keonjhar and when there is no document with the plaintiffs to show their ownership or possession over Schedule ‘B’ suit properties, then, they (plaintiffs) are not entitled for any relief in their favour in respect of the Schedule ‘B’ suit properties also. 9. On being aggrieved with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs passed by the Trial Court in T.S. No.26 of 1990-I, they (plaintiffs) challenged the same by preferring the First Appeal vide T.A. No.11 of 1997 being the appellants against the defendant arraying him (defendant) as respondent. 10. After hearing from both the sides, the First Appellate Court dismissed the First Appeal vide T.A. No.11 of 1997 of the plaintiffs on contest as per its judgment and decree dated 10.04.2001 and 30.04.2001 respectively accepting/concurring the findings and observations made by S.A. No.226 of 2001 Page 9 of 16 the Trial Court in the judgment and decree of the suit vide T.S. No.26 of 1990-I in favour of the defendant and against the plaintiffs. 11. On being aggrieved with the said judgment and decree of the dismissal of the First Appeal vide T.A. No.11 of 1997 of the plaintiffs; they (plaintiffs) challenged the same by preferring this Second Appeal being the appellants against the defendant arraying him (defendant) as respondent. 12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether the onus lies on the plaintiffs/Appellate to prove their adverse possession, being the legal owner of the suit schedule lands when the defendant/respondent claim his title by way of adverse possession? (ii) Whether any unlawful possession can be treated as adverse possession without any materials available on record? 13.
Legal Reasoning
I have already heard from the learned counsels of both the sides. 14. As, the above both the formulated substantial questions of law are interlinked concerning the claim of title and possession of the parties over the suit properties, then both the formulated substantial questions of law are taken up together analogously for their discussions hereunder. 15. It is the concurrent findings of the Trial Court and First Appellate Court through appreciation of oral and documentary evidence of the parties that, there was metes and bounds partition of Schedule ‘A’ suit properties along with their other joint and undivided properties between S.A. No.226 of 2001 Page 10 of 16 the plaintiffs in the year 1971 and in such partition between them (plaintiffs) in the year 1971, the Schedule ‘A’ suit properties had fallen in the share of the plaintiff Nos.1 & 2 and accordingly, the plaintiff Nos.1 & 2 being the owners of the Schedule ‘A’ properties, they had sold the same to the defendant by executing and registering the sale deed dated 15.05.1973 vide Ext.A and had delivered the possession thereof indicating the wrong particulars of sold properties i.e. Schedule ‘A’ suit properties in that sale deed vide Ext.A. The scope of interference of the Second Appellate Court like this Court with concurrent findings of facts given by the Trial Court and First Appellate Court has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions i.e. Kasinath Nandi (dead), after him his LRs. Tapan Kumar Nandi and others Vrs. Rudranarayan Mishra and others reported in 2014 (Supp-I) OLR 429, Madhukar Vrs. Smt. Nanda Madhukar Yene and another reported in 2017 (I) Civil Court Cases 515 (Bombay), C. Doddanarayana Reddy (dead) by LRs & others Vrs. C. Jayarama Reddy (dead) by LRs & others reported in 2020 (I) Apex Court Judgments, Raj Kali Vrs. Jitender reported in 2010 (3) Civil Court Cases 800 (P & H) and Sabaji Dhabji Dhore Vrs. Baburao Raghuji Kare reported in 2019 (I) MAH. LJ 183; wherein it has been held that, “the Court of Second Appeal is not a Court S.A. No.226 of 2001 Page 11 of 16 of facts, because the final Court to appreciate the facts is the First Appellate Court and the Second Appellate Court is not a Court of facts. For which, High Court should not interfere with the concurrent findings of the facts arrived by the Trial Court and the First Appellate Court on appreciation of oral and documentary evidence of both sides, unless and until it is found that, the findings of facts given by the Courts are perverse or they have considered the inadmissible evidence ignoring the vital/material evidence.” 16. When, in this suit/appeal at hand, the Trial Court as well as the First Appellate Court have given their concurrent findings of facts after taking into account the oral and documentary evidence of the parties that, on the date of execution of the sale deed dated 15.05.1973 vide Ext.A, the owners of the Schedule ‘A’ suit properties i.e. plaintiff Nos.1 & 2 had delivered the possession of the Schedule ‘A’ suit properties to the defendant, though there was wrong indication of the particulars of the sold Schedule ‘A’ suit properties in the sale deed vide Ext.A and accordingly, since 15.05.1973, the defendant is in continuous possession over the Schedule ‘A’ suit properties on the basis of the sale deed vide Ext.A for more than 40 years, for which, as per law the plaintiffs have lost their right to recover the possession of Schedule ‘A’ suit properties from the defendant. S.A. No.226 of 2001 Page 12 of 16 On this aspect, the propositions of law has already been clarified by the Apex Court and Hon’ble Courts in the ratio of the following decisions:- (i) 56 (1983) CLT 47 (Division Bench)—Chintamani Sahoo (dead) and after him Subodh Kumar Sahoo and others Vrs. Commissioner of Orissa Hindu Religious Endowments, Orissa and others—(Para 15)—Limitation Act, 1963—Section 27—No suit filed within the statutory period—Right to recover possession extinguished. (ii) 62 (1986) C.L.T. 204—Amulya Chandra Banerjee (dead) and after him Sarajubala Dibya and others Vrs. Biseswar Mukherjee (dead) and after him Smt. Subala Mukherjee and others—(Para 8)—Limitation Act, 1963—Article 65— Adverse Possession—Possession since 1944 under invalid gift deed—Institution of suit in 1968 barred. The defendant having remained in possession of the suit property since 1944 under an invalid deed of gift, his possession was adverse, perfected his title by adverse possession and the plaintiff’s suit instituted in August, 1968 was barred by limitation. (iii) AIR 2003 (SC) 1905 (Division Bench)—Bondar Singh and others Vrs. Nihal Singh and others—(Paras 5 & 6)— Limitation Act, 1963—Article 65—Adverse possession— Proof—Plaintiffs claiming title over suit land by adverse possession—Plea of plaintiffs that they were in possession of suit land by virtue of unregistered, unstamped sale deed executed interest— Defendants alleging that plaintiffs were trespassers however admitting their possession since lifetime of their father—Order of revenue authority also establishing possession of plaintiffs for last 26/27 years—Claim of defendant regarding taking over of possession from plaintiff found to be false—Plaintiffs in hostile continuous possession—Adverse possession proved. their predecessors in favour of in 17. Here in this suit/appeal at hand, when the defendant has been possessing the Schedule ‘A’ suit properties continuously since 15.05.1973 on the basis of the possession thereof delivered by its owners i.e. plaintiff Nos.1 & 2 through a registered sale deed vide Ext.A, S.A. No.226 of 2001 Page 13 of 16 although the schedule properties of that sale deed vide Ext.A were not related to the Schedule ‘A’ suit properties due to indication of the same wrongly as per the instructions of the vendors thereof i.e. plaintiff Nos.1 & 2 and when there is no material in the record to show about the recovery of possession of the Schedule ‘A’ suit properties by the plaintiffs from the defendant at any time since 15.05.1973, then in view of the principles of law enunciated in the ratio of the aforesaid decisions of the Apex Court and Hon’ble Courts, the right to recover the possession of the Schedule ‘A’ suit properties from the defendant by the plaintiffs including plaintiff Nos.1 & 2 has already been extinguished by virtue of Section 27 of the Limitation Act, 1963. Therefore, the findings and observations made by the Trial Court and First Appellate Court refusing the prayers of the plaintiffs in respect of Schedule ‘A’ suit properties cannot be held erroneous. 18. So far as, the refusal to the prayer of the plaintiffs by the Trial Court and First Appellate Court for confirmation of their possession over the Schedule ‘B’ properties is concerned; It is the admitted case of the parties that, in a proceeding under Section 145 of Cr.P.C. vide C.M.C. No.377 of 1987 as per its final order dated 30.09.1989, the possession of the defendant over the Schedule ‘B’ S.A. No.226 of 2001 Page 14 of 16 suit properties was declared, which was confirmed by the learned Sessions Judge, Keonjhar in Criminal Revision No.48/89. It is also the concurrent findings of both the Courts i.e. Trial Court and First Appellate Court that, the Schedule ‘B’ suit properties belong to the Government and the possession of the same is with the defendant. There is no material or document on behalf of the plaintiffs to show their title and possession over the Schedule ‘B’ suit properties. For which, the Trial Court and First Appellate Court both have refused the prayer of the plaintiffs to confirm their possession over Schedule ‘B’ suit properties. As such, in absence of any material in the record to show the possession of the plaintiffs over Schedule ‘B’ suit properties and in view declaration of possession of the defendant on the same in a proceeding under Section 145 of Cr.P.C. vide C.M.C. No.377/87 and the confirmation of the same in Criminal Revision No.48/89, the refusal of the prayer of the plaintiffs for confirmation of their possession over the Schedule ‘B’ suit properties by the Trial Court and First Appellate Court cannot be also be held as illegal like the Schedule ‘A’ suit properties. 19. When as per the discussions and observations made above, it is held that, the concurrent findings made by the Trial Court and First Appellate Court through appreciation of materials available on record along with oral and documentary evidence of the parties in dismissing the S.A. No.226 of 2001 Page 15 of 16 suit of the plaintiffs are not erroneous, then at this juncture, the question of interfering with the same through this Second Appeal filed by the appellants (plaintiffs) does not arise. Therefore, there is no merit in the Second Appeal of the appellants (plaintiffs). The same must fail. 20. In result, the Second Appeal filed by the appellants (plaintiffs) is dismissed on contest, but without cost. The judgment and decree passed by the Trial Court in T.S. No.26 of 1990-I and confirmation of the same by the First Appellate Court in T.A. No.11 of 1997 are confirmed. Orissa High Court, Cuttack. 26.07. 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: 05-Aug-2024 13:41:59 S.A. No.226 of 2001 Page 16 of 16