The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.65 OF 1988 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 30.11.1987 and 10.12.1987 respectively passed by the learned Sub-ordinate Judge, Boudh in Title Appeal No.05 of 1987 confirming the judgment and decree dated 30.04.1987 and 05.05.1987 respectively passed by the learned Muncif, Boudh in Title Suit No.29 of 1983. ---- Chandan Naik …. Appellant -versus- Mahadeb Naik …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.N.P.Patnaik (Advocate) For Respondent - Mr. B.K.Panda, Advocate. CORAM: MR. JUSTICE D.DASH Date of Hearing :16.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree 30.11.1987 and 10.12.1987 respectively passed by the learned Sub-ordinate Judge, Boudh in Title Appeal No.05 of 1987. By the same, the Appeal filed by the present Appellant, being the aggrieved Defendant in Title Suit No.29 of 1983 of the Court of the SA No.65 OF 1988 Page 1 of 6 {{ 2 }} learned Munsif, Boudh, has been dismissed and thereby, the judgment and decree passed by the Trial Court declaring the title of the Respondent (Plaintiff) over the suit land and directing the Appellant (Defendant) to give delivery of vacant possession of the suit land to the Respondent (Plaintiff), has been confirmed. 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 Plaintiff’s case is that he is the recorded owner of the suit homestead land which measures Ac.0.02 decimals appertaining to Khata No.86 and Plot No.678 situated in Mouza-Tutusinga, which is a part and parcel of the total land comprised under that Khata measuring Ac.3.24 decimals. It is stated that the entire land including the suit land was in possession of the father of the Plaintiff who was the recorded owner and after his death, the Plaintiff, having succeeded to the same, so possessed. The land has been mutated thereafter in the name of the Plaintiff. It is alleged that the Plaintiff, while was in possession of the suit land, got it demarcated by an Amin and subsequent, to that demarcation; the Defendant trespassed over the suit land by dispossessing the Plaintiff. So, the suit came to be filed. 4. The Defendant, in the written statement, while traversing the plaint averments, has stated that one Madhu was the common ancestor of the parties. He had three sons, namely, Laxman, Dhaneswar and Banchha. Plaintiff is the son of Banchha and Defendant as well as Gopi are the sons of Satyabadi, who is the son of Laxman. It is further stated that after the death of Madhu, his three sons separated in mess and estate. In that Page 2 of 6 SA No.65 OF 1988 {{ 3 }} family partition, the Defendant’s branch got the land measuring Ac.2.71 decimals under Khata No.105 of that village and the branch of the Plaintiff got land measuring Ac.3.24 decimals, which was subsequently, mutated under Khata no.86. Dhaneswar’s branch got land measuring Ac.3.24 decimals mutated in Khata No.75. It is stated that the suit land is part and parcel of Ac.3.24 decimals of land comprised in Khata No.86. He, further pleaded that the Plaintiff’s father Banchha and his grandfather Laxman mutually exchanged the suit land with Ac.0.13 decimals of land under Khata No.105, Plot No.96 of village Tutusinga amicably, followed by mutual exchange of possession of the land. Since the value of the land was less than Rs.100/-, the exchange was oral and was not reduced into writing. It is the case of the Defendant that since then, they are in exclusive, continuous and peaceful cultivating possession of the suit land without any disturbance from any quarter. His further case is that the possession of the suit land has all along been open and continuous for a period of over 26 years and it was hostile to the Plaintiff, who had never caused any interruption and as it was within his full knowledge, the Defendants thus claim to have perfected title over the suit land by way of adverse possession and, therefore, it was said that the title of the Plaintiff over the suit land has since been extinguished. 5. On the above rival pleadings, the Trial Court framed six issues. Out of which, the important are issue nos.5 and 6, which relate to the theory of exchange and claim of the Defendant as to have acquired the title over the suit land by way of adverse possession. The Trial Court, upon examination of evidence and their evaluation, has answered these two issues against the Defendant. Page 3 of 6 SA No.65 OF 1988 {{ 4 }} Practically, these answers have led the Trial Court to decree the suit granting the reliefs as prayed for by the Plaintiff. 6. The Defendant, being aggrieved by the judgment and decree passed by the Trial Court, having carried the First Appeal, has failed in the attempt to upset the judgment and decree passed by the Trial Court running against him. Hence, the present Second Appeal. 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Appellant (Defendant) has perfected his title by way of adverse possession in view of the finding by the Courts below that he was in possession of the disputed land prior to 27.02.1983 having been erroneously held by the Courts below that such possession was permissive”. 8. Learned counsel for the Appellant submitted that with the overwhelming evidence let in by the Defendant as to the oral mutual exchange of the suit land and another piece of land between the father of the Plaintiff and the grandfather of the Defendant, namely, Laxman and it having further been proved through evidence that the Defendant has been in possession of the suit land since the time of such exchange, the possession could not have been held to be permissive. He thus submitted that on the basis of the evidence of possession of the suit land by the Defendant, the Courts below ought to have declared that the Defendant has perfected title over the suit land by way of adverse possession and thereby, the title of the Plaintiff over the suit land has long since been extinguished. SA No.65 OF 1988 Page 4 of 6 {{ 5 }} 9. Learned counsel for the Respondent, on the other hand, while supporting the findings of the Courts below, submitted that the Courts below have rightly recorded the finding against such theory of exchange and that having been said, even though the Defendant is said to be in possession of the suit property for whatever length of time it may be, keeping in view the relationship between the parties, when the antecedent title of the Plaintiff over the suit land stands admitted, rightly the suit has been decreed. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement. The evidence both oral and documentary have been travelled through. 11. The Defendant specifically pleads that in the year 1948, his grandfather possessed the suit land on account of exchange with his 13 decimals of Atta land with the father of the Plaintiff. Said exchange is said to be oral and no such contemporaneous document, in support of the same, has been proved from the side of the Defendant. The Trial Court as well as the First Appellate Court as it appears having gone for a in-depth analysis of the evidence, have held that the Defendant has failed to prove its case of exchange as advanced. 12. Coming to the possession of the suit land by the Defendant and keeping in view the conduct of the Defendant that he has taken no step to mutate the suit land and for all these years and more so when it has been found that the land said to have been given on exchange by his grandfather Laxman to the father of the Plaintiff is still in occupation of the Defendant and his brother, in the absence any other evidence that the Page 5 of 6 SA No.65 OF 1988 {{ 6 }} possession of the suit land by the Defendant from the time of his grandfather was open, peaceful, in exercise of all the rights of ownership and denying of the title of the true owner, does not appear to be the outcome of perverse appreciation of evidence. In that view of the matter, the substantial questions of law is answered against the Defendant, which thus runs to confirm the judgment and decree passed by the Courts below. 13.
Decision
In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D.Dash) Judge. Gitanjali SA No.65 OF 1988 Page 6 of 6