The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 6 of 2006 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] --------------- AFR Golabati Barik (Dead) represented by her LRs Parbati Barik & Others ...… Appellants -Versus- Sushil Kumar Mahanta & Others ….. Respondents Advocate(s) appeared in this case :- ________________________________________________________ : M/s. S.K Nayak-2, B.K. Rout, S.K. Pattnaik, A. Nayak, & S.D. Das, Advocates For Appellants For Respondents : Mr. S.P. Mishra, Sr. Advocate with M/s. S. Dash, S. Mishra, S. Nanda, S.S. Satapathy & S.K. Mohanty, Advocates __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 15th July, 2025 SASHIKANTA MISHRA, J. This is a plaintiffs’ appeal against a confirming judgment. The suit filed by the plaintiffs for declaration of Page 1 of 12
Legal Reasoning
title, confirmation of possession and perpetual injunction in respect of the suit property was dismissed by the trial Court and confirmed in appeal by the First Appellate Court. 2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court. 3. Before adverting to the case of the parties it would be apt to refer to the genealogy of the parties as given in the plaint schedule-B. Geneology Dwari Barik Jagabandhu (W-Golabati) Late Harekrushna Nirakar L. Dayanidhi (W- Parbati) Laxmi Hira Indumati Saindhri Pata Kausalya Ahalya 4. The case of the plaintiffs, briefly stated, is that one Nabin Mahanta was the recorded tenant of the suit land in the Sabik settlement ROR. He died leaving behind his two sons, Jadumani and Radhu. The brothers Page 2 of 12 partitioned the properties equally and possessed their respective shares measuring Ac.2.14 decs. each exclusively. Jadumani sold his share of the land along with other lands to Dwari Barik, the common ancestor of the plaintiffs and defendant Nos.6 to 8 vide registered sale deed of the year 1957 for consideration followed by delivery of possession. Dwari died leaving behind his two sons, Jagabandhu and Harekrushna. While Harekrushna died issueless, Jagabandhu was succeeded by the plaintiffs and defendant Nos.6 to 8, who are his legal heirs. During Hal settlement, the suit land was recorded in the names of Jadumani and Radhu even though both of them were dead by then. In the remarks column, note of possession of Dwari Barik was endorsed in respect of the suit land. It is claimed that the original sale deed of the year 1957 executed in favour of Dwari Barik was lost in dacoity and as such, could not be produced before settlement authority, resulting in his name being recorded in the remarks column. However, he was in possession since purchase in the year 1957 till his death, which was followed by possession of his legal heirs. Page 3 of 12 Defendant Nos.1 and 2 threatened to dispossess the plaintiffs from the suit land claiming to have purchased the same from defendant Nos.4 and 5 through registered sale deed. Hence, the suit. 5. Defendant No.1 contested the suit by filing written statement raising grounds of maintainability. It was further claimed that the half share of Radhu, after death of Nabin Mahanta was purchased by defendant Nos.1 and 2 and recorded in their names in the Hal settlement. The balance Ac. 2.14 dec. of land was sold by Jadumani to Dwari Barik in the year 1957. It was further claimed that one Makuru Mahanta, son of Sambhu, served as servant (Bagalia) in the house of Dwari from 1965 to 1966. As Dwari could not pay his remuneration, he sold the suit land to Sambu on consideration of Rs.400/- and in addition to that adjusting the annual remuneration of the servant. He executed an unregistered sale deed on 05.02.1966 and delivered possession of the suit land to Sambhu and since then Sambhu was in possession till his death and after him, his sons are in possession. Such Page 4 of 12 possession is open, continuous and to the knowledge of the plaintiffs with hostile animus on the basis of the unregistered sale deed. As such, they claim to have perfected their title by adverse possession. The plaintiffs’ title over the suit land has been extinguished by passage of time, though wrongly ROR was issued in the names of Jadumani and Radhu. Bhaktabandhu was the son of Jadumani and Bhajani is the daughter of Radhu. Since both of them created disturbance in the possession of Sambhu over the suit land in 1977, Bhajani executed registered sale deed in favour of defendant No.1 also in 1977 and thereafter the land was mutated in his favour. 6. Defendant No.5 filed his written statement admitting the case of the plaintiffs in toto. 7. Basing on the rival pleadings, the trial Court framed the following issues for determination. Is there any cause of action? “1. Is the suit maintainable? 2. 3. If the plaintiffs and Defendant Nos.6 to 8 have their right, title, interest and possession over the suit land? 4. limitation? If the suit is barred by the law of Page 5 of 12 If the suit is bad for the non-joinder of 5. necessary parties? 6. over the suit land by adverse possession? 7. To what relief?” If defendant No.1 has perfected his title 8. On Issue Nos.3 and 6, the trial Court, after examining the oral and documentary evidence on record found that Makuru was a Bagalia under Dwari Barik in the year 1965-1966. The trial Court further took note of the admission of the plaintiffs’ witnesses, D.Ws.-1 and 2 to the effect that Sambhu had constructed a house over the suit land with permission of Dwari. By taking advantage of such possession, the sons of Sambu forcibly occupied the entire suit land, which is still in their occupation. The trial Court therefore, found that defendant Nos. 1 and 2 are in possession of the suit land since 1965-1966 which supports the case of defendant No.1 that he stepped into possession of the suit land by virtue of the unregistered sale deed (Ext.L) in the year 1966. The plaintiffs’ claim of being in possession was negatived. On such basis, it was held that D.Ws.1 and 2 have perfected their title over the suit land by adverse possession. Page 6 of 12 On Issue No. 5, it was held that the legal heirs of Radhu, except D.W.5 not having been impeaded, the suit is bad for non-joinder of necessary parties. On Issue No.4 it was held that the Hal settlement ROR being published in the year 1980, the suit was barred by limitation being brought after 20 years. On such findings basically, the suit was dismissed. 9. The plaintiffs carried appeal against the judgment and decree of the trial court. The First Appellate Court, after re-appreciation of the oral and documentary evidence held that no reliance can be placed on the unregistered sale deed marked Ext.L since the same was also not produced by the defendants at the time of settlement even though they had the opportunity to do so. Nevertheless, there being evidence of their continuous possession on the basis of such unregistered sale deed, the same amounts to prescription of title by adverse possession. The finding of the trial Court on such count was therefore left undisturbed. As regards the finding that the suit was barred by limitation, the first appellate Court Page 7 of 12 held the same to be unsustainable in view of the fact that the suit was based on title. The appeal was thus dismissed with the judgment and decree of the trial Court being confirmed. 10. Being further aggrieved, the plaintiffs appellants have preferred this appeal, which was admitted on the following substantial question of law. “(i) Whether the finding arrived at by the courts below that defendant nos. 1 and 2 acquired title on the suit land by way of adverse possession is justified since defendant nos. 1 and 2 have purchased the same in the year 1997 from the successor of Jadu and Radhu, the vendors of plaintiff’s father?” 11.
Legal Reasoning
Heard Mr. S.K. Nayak, learned counsel appearing for the plaintiff-appellants and Mr. Soumya Mishra, learned counsel appearing for the defendant-respondents. 12. Mr. Nayak would argue that the admitted case of the parties is that because of inability to pay remuneration to his servant-Makuru, Dwari sold the suit land in lieu thereof to Sambhu on consideration of Rs.400/- in token of which he executed an unregistered sale deed on 05.02.1966. Such possession if at all must be treated as Page 8 of 12 permissive in nature. Once possession is permissive to begin with, it cannot be transformed into adverse possession at any future point of time. According to Mr. Nayak, both the courts below have committed illegality in holding otherwise. Mr. Nayak further argues that defendant No.5 (Bhajani) supposedly executed a sale deed in favour of defendant No.1 in the year 1977 vide Ext.E, but the same being later in point of time cannot take away the right of the plaintiffs over the suit land, which they had acquired way back in 1957 through their predecessor-in-interest. 13. Per contra, Mr. S. Mishra would argue that the existence of unregistered sale deed marked Ext.L clearly shows that it was a sale effected by Dwari in lieu of remuneration to his servant-Makuru. It is not disputed that Sambhu stepped into possession and also constructed a house over the suit land to the knowledge of the plaintiff. Such possession was open, continuous and adverse to the interest of the plaintiff. The prescribed period of 12 years having elapsed, both the courts below must be held to have rightly held that the contesting defendants had prescribed Page 9 of 12 title by adverse possession. Mr. Mishra further argues that even otherwise, the plaintiffs not having claimed the relief of recovery of possession, the suit is bad. 14. After noting the rival contentions as above, this Court finds that the claim of the plaintiffs over the suit land is based on a sale deed executed in the year 1957. The same is said to have been lost in a dacoity. It is stated that because of such loss of the sale deed the suit land continued to be recorded jointly recorded in the names of Jadumani and Radhu with note of possession in favour of Dwari Barik, their predecessor-in-interest. Thus, the entire claim of title of the plaintiffs is based on the so-called sale of the suit land by Jadumani to Dwari Barik purportedly in the year 1957. The original sale deed was not produced but the certified copy thereof was admitted as Ext.2. No objection having been raised to the plea that the original sale deed was lost in dacoity before the courts below, this Court would not like to enter into the question as to whether admission of Ext.2 was proper or not. That apart, the defendants in their written statement have not disputed Page 10 of 12 the above fact. So prima facie, there is semblance of title flowing from Jadumani to Dwari Barik by virtue of the sale deed of the year 1957. But then, the question of possession rests on entirely different consideration inasmuch as despite the note of possession in favour of Dwari in the Hal ROR, the plaintiffs’ witnesses (P.Ws. 1 and 2) admitted that Sambhu and after him, his sons, defendant Nos. 1 and 2 have been possessing the suit land for more than 45 years. It is also borne out from the evidence on record that Sambhu had constructed a house over the suit land. It has been urged that this shows the possession of Sambhu being permissive in nature but then it is also borne out from the evidence of record that taking advantage of such permission given about 36 years back, the sons of Sambhu (Defendant Nos. 1 and 2) forcibly occupied the entire suit land. Now, the suit land measures Ac. 2.14 dec. It is obvious that the house on the suit land does not cover the entire area. So the so called permissive possession if at all can only be confined to the area over the house constructed but cannot extend to the entire suit land. In this regard Page 11 of 12 both the courts below have concurrently found from the evidence on record that the defendant Nos. 1 and 2 were in possession of the entire suit land for more than the prescribed period. This Court finds nothing wrong in said findings of both the courts below that they perfected their title by way of adverse possession. 15.
Decision
For the foregoing reasons therefore, this Court is unable to accept the arguments advanced by learned counsel for the plaintiff-appellants to be persuaded to interfere with findings of the courts below. The substantial question of law framed is answered accordingly. 16. In the result, this Court finds no merit in the appeal, which is therefore, dismissed. There shall be no order as to costs. ………….……………. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 15th July, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Jul-2025 16:10:45 Page 12 of 12