The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.39 of 2011 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kunjabana Meher Kunu Meher -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent - Mr. R. Mohanty, Sr. Advocate. - Mr. G. Mukherjee, Sr. Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :12.10.2023 :: Date of Judgment :10.11.2023 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The Appellant was the Defendant in C.S. No.01 of 2009 and the Appellant in R.F.A. No.11 of 2010. The Respondent was the sole Plaintiff in C.S. No.01 of 2009 and Respondent in R.F.A. No.11 of 2010. 3. The suit vide C.S. No.01 of 2009 was a suit for declaration and recovery of possession. 4.
Legal Reasoning
The Plaintiff and Defendant are two brothers. The suit property i.e. schedule-B property is the part of Schedule-A property. The schedule-A property was originally belonged to the father of the Plaintiff and Defendant i.e. Nilakantha Meher, which was his self acquired property. Their father (Nilakantha Meher) had acquired that schedule-A property and he had constructed a house thereon. Nilakantha RSA No.39 of 2011 Page 1 of 12 {{ 2 }} Meher sold the schedule-A property along with the house standing thereon to the Plaintiff by executing and registering a sale deed bearing No.47 on dated 23.01.1991 vide Ext.5 and delivered possession thereof to the Plaintiff. After purchasing the said schedule-A property from the father of the Plaintiff, he (plaintiff) mutated the same to his name vide Mutation case No.446 of 2001 and accordingly, after mutation, separate R.O.R. of the schedule-A property was prepared in the name of the Plaintiff. The Plaintiff has been paying rent of schedule-A property in his name to the Government and has been obtaining the rent receipts thereof regularly. After purchasing the schedule-A property, he (plaintiff) constructed three tiled roofed rooms over its one vacant portion and also constructed a double storied building on its another vacant portion. The defendant being the elder brother of the plaintiff requested him (plaintiff) to allow him to reside temporarily in the house situated over the schedule- B (which is part of schedule-A property), to which, he (plaintiff) agreed and allowed the defendant to reside in the house situated over the schedule-B property temporarily. But, when subsequent thereto, the plaintiff requested the defendant to vacate the schedule-B property for his own use, to which, the defendant did not agree. For which, a meeting was convened on 06.05.2002 between him, the defendant and their other brothers and sisters. In that meeting, there was a resolution vide Ext.6, wherein, the defendant agreed to vacate the schedule-B property after completion of the marriage ceremony of his son. But, in spite of completion of the marriage ceremony of his son, the defendant did not hand over the possession of the schedule-B property to the plaintiff. For which, without getting any way, the plaintiff approached the Civil Court by filling the suit vide C.S. No.01 of 2009 against the defendant praying RSA No.39 of 2011 Page 2 of 12 {{ 3 }} for declaration of his right, title and interest over the schedule-B property and to direct the defendant to deliver the vacate possession of the same in his favour along with other reliefs, to which, he (plaintiff) is entitled for, as the Court deems fit and proper. 5. Having been noticed from the Court in C.S. No. 01 of 2009, the defendant contested that suit by filing his written statement along with a counter claim by taking his stands inter alia therein denying the averments made by the plaintiff made in his plaint by stating specifically that, schedule-A property including the schedule-B property was not the self acquired property of his father Nilakantha Meher, but the entire schedule-A property including schedule-B property is their joint and undivided property, in which, he (defendant) has a specific share and the so called sale deed bearing No.47 dated 23.01.1991 about the purchase of the suit property by the plaintiff from their father Nilakantha Meher is a fictious, fabricated and manufactured deed. Because, the plaintiff has created that deed fraudulently. But, in fact, neither his father (Nilakantha Meher) has sold the schedule-A property to the plaintiff and nor the plaintiff has taken delivery of possession of the same. The suit land is under the exclusive possession of the defendant. The plaintiff has purchased approximately Ac.0.01 dec. of land from the adjacent plot of the suit plot i.e. from the plot No.1484 under Khata No. 286. But, the plaintiff has not at all purchased the suit plot No.1485. Their father Nilakantha Meher had acquired the schedule-A property, while they were residing in joint mess. Though the brothers of the plaintiff including him (defendant) are residing separately, but, still then, they have shares over joint and undivided properties including the schedule-A property. As the plaintiff has fabricated the sale deed bearing No.47 dated 23.01.1991 in RSA No.39 of 2011 Page 3 of 12 {{ 4 }} respect of schedule-A property, for which, that sale deed is a void deed. No interest over the suit property has been created in favour of the plaintiff on the strength of that sale deed dated 23.01.1991. The further case of the defendant as per paragraph No.5 of his written statement was that, the suit property i.e the schedule-B property including the house standing thereon exclusively belongs to him (defendant) and he (defendant) has been possessing the same since 1972. For which, right, title and interest over the suit property and house standing thereon has already been created in his favour by way of adverse possession due to his long and continuous possession of the same for more than 37 years. Therefore, the suit of the plaintiff for declaration of his title over the schedule-B property and for recovery of possession thereof is liable to be dismissed. In that written statement, he (defendant) filed a counter claim against the plaintiff praying for declaration of his right, title, interest and possession over the schedule-B property and to declare the sale deed No.47 dated 23.01.1991, (said to have been executed by his father Nilakantha Meher in favour of the plaintiff in respect of the schedule-A property including schedule-B property) as null and void along with the cost of the suit and other reliefs, to which, he (defendant) is entitled for as it deems fit and proper by the Court. The plaintiff filed the written statement against the above counter claim of the defendant denying the averments made by the defendant in his counter claim stating for the dismissal of that counter claim of the Defendant. RSA No.39 of 2011 Page 4 of 12 {{ 5 }} 6. Basing upon the aforesaid pleadings and the matters in controversies between the parties, altogether nine numbers of issues were framed by the Trial Court in C.S. No.01 of 2009, the said issues are:- <(i) Whether the suit is maintainable? (ii) Whether the plaintiff has cause of action? (iii) Whether the plaintiff has right, title and interest over the suit property? (iv) Whether the occupation of the defendant over B-schedule property is illegal and he is liable to deliver possession of the same to the plaintiff? (v) Whether the defendant be directed to deliver physical possession of suit schedule-B- land to the plaintiff? (vi) Whether the defendants has right, title and interest over the suit property? (vii) Whether the sale deed No.47 dated 23.01.1991 in respect of A- schedule property including B-schedule is null void? (viii) Whether the plaintiff is entitled for any other relief? (ix) Whether the defendant is entitled for any other relief?= 7. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendant, he (plaintiff) examined altogether five numbers of witnesses including him (plaintiff) as P.W.1 from his side and relied upon several documents vide Exts.1 to 6 including the sale deed bearing No.47 dated 23.01.1991 vide Ext.5 on his behalf. On the contrary, the defendant examined two witnesses on his behalf including him (defendant) as D.W. 1 and relied upon several documents from his side vide Exts.A to H. 8. After conclusion of hearing of the suit vide C.S. No.01 of 2009 and on perusal of the documents, materials and evidence available in the record, the Trial Court answered all the issues in favour of the plaintiff and against the defendant and on the basis of the findings and observations made by the Trial Court in the issues, the Trial Court decreed the suit of the plaintiff vide C.S. No.01 of 2009 on contest against the defendant and declared the title and interest of the plaintiff over the suit land and directed the defendant to deliver the vacate RSA No.39 of 2011 Page 5 of 12 {{ 6 }} possession of the suit land to the plaintiff within three months and dismissed the counter claim of the defendant on contest against the plaintiff vide its judgment and decree dated 31.03.2010 and 08.04.2010 respectively. 9. On being dissatisfied with the aforesaid judgment of decree dated 31.03.2010 and 08.04.2010 respectively passed in C.S. No.01 of 2009 by the Trial Court in favour of the plaintiff and against the defendant, he (defendant) challenged the same by preferring the First Appeal vide R.F.A. No.11 of 2010 being the Appellant against the plaintiff by arraying him (plaintiff) as Respondent. 10. After hearing from both the sides, the First Appellate Court dismissed the R.F.A. No.11 of 2010 of the Defendant and confirmed to the judgment and decree passed by the Trial Court in C.S. No.01 of 2009 both in respect of the suit and its counter claim. 11. On being aggrieved with the aforesaid confirming judgment passed by the First Appellate Court in R.F.A. No.11 of 2010 vide its judgment and decree dated 13.11.2011 and 21.01.2011 respectively, he (defendant) challenged the same by preferring this Second Appeal being the Appellant against the plaintiff by arraying him (plaintiff) as Respondent. 12. This Second Appeal was admitted by formulating the substantial questions of law i.e. <(i) Whether the Courts below have acted contrary to law in holding that the defendant-Appellant has not perfected his title by way of adverse possession only basing on Ext.6? (ii) Whether the Courts below have acted illegally in not dealing with the issue of fraud as pleaded by the Appellant in his written statement even though in issue was framed with regard to validity of the same?= 13.
Legal Reasoning
I have already heard from the learned counsel for the Appellant and learned counsel for the Respondent. RSA No.39 of 2011 Page 6 of 12 {{ 7 }} 14. It is undisputed case of the parties that, suit land i.e. Schedule-B land is a part of Schedule-A. Schedule A property was exclusively recorded in the name of their father Nilakantha Meher. When it is the plea of the defendant that, the sale deed vide Ext.5 in respect of schedule-A property has been created by the plaintiff in his favour fraudulently, then at this juncture, it was obligatory on the part of the defendant to plead and prove specifically as per Order 6 Rule 4 of the C.P.C., 1908 about the particulars of the alleged fraud, those were allegedly practiced by the plaintiff for execution and registration of that sale deed vide Ext.5. The defendant neither has pleaded nor has proved the same clearly and definitely by bringing materials into the record about the particulars of the alleged fraud, except alleging general and omnibus allegations about the same. 15. The law on that aspect i.e. how fraud is to be pleaded and proved as per Order 6 Rule 4 of the CPC, 1908 has already been clarified in the ratio of the following decisions:- (i) 38 (1972) CLT 3Page 394Bira Jena Vrs. Tauli Dei and another, AIR 1971 (2) CWR 3524Raghunath Sahu Vrs. Kathia Devi and others, 45 (1978) CLT 4534Ramchandra Das Vrs. Hiralal Modi, Trustee, Parvati Bai Estate and AIR 1974 Ori 1104 Madan Panda Vrs. Hadibandhu Panda and another4 CPC 1908- Order 6 Rule 4-particulars of fraud must be pleaded- in absence of pleading, evidence not to be allowed. (ii) 1986 (I) OLR 5984Musi Dei Vrs. Labanya Bewa and another, 1985 (II) OLR 3914Padma Bewa Vrs. Krupasindhu Biswal and two others, AIR 1951 SC 2804Bishundeo Narain and another V. Seogeni Rai and others & 69 (1990) CLT 4654State of Orissa through Collector, Keonjhar and another Vrs. Dinanat Mohanto and others4 Order 6 Rule 4 of the CPC- the allegation of fraud and misrepresentation must be clear, definite and specific- General allegation in that regard is insufficient. RSA No.39 of 2011 Page 7 of 12 {{ 8 }} 16. Here in this suit at hand, the Defendant neither has pleaded specifically/definitely about the particulars of the alleged fraud (those were stated to have been practiced by the plaintiff for execution and registration of the sale deed No.47 dated 23.01.1991 vide Ext.5) nor he has adduced evidence on that aspect. For which, the allegations of fraud alleged by the defendant against the plaintiff regarding the execution and registration of the sale deed vide Ext.5 in respect of Schedule-A property has been failed to be substantiated. 17. It has been elicited from the mouth of the defendant (D.W.1) during cross-examination from the side of the plaintiff that, his father had sold Ac.0.06 dec of land to him from plot No.1436 under the same suit Khata No.152 through RSD No.311 of 1986 and his said purchased land from plot No.1436 under suit Khata No.152 has already been mutated to his name and his above purchased land from Plot No.1436 is 200 feets away from the suit land. The above evidence of the defendant (D.W.1) is going to show that, all the properties covered under suit Khata No.152 including plot No.1436 (to which the defendant purchased) and suit plot No.1485 were the self acquired properties of his father Nilakantha Meher and the properties covered under suit Khata No.152 were not the joint family properties of the Plaintiff and Defendant. 18. In addition to that, in paragraph-5 of the written statement, the defendant has specifically pleaded that, he has perfected his title over the suit land against the plaintiff by way of adverse possession on the basis of his long and continuous possession for more than 37 years. 19. The above claim of title of the Defendant over the suit land against the Plaintiff through adverse possession itself is an indirect admission to RSA No.39 of 2011 Page 8 of 12 {{ 9 }} the title of the plaintiff over the suit land by him (defendant). Because, by raising the aforesaid plea for title over the suit land through adverse possession against the plaintiff, he (defendant) has admitted to the ownership of the plaintiff over the suit land. In paragraph-13 of the written statement, the defendant has taken an another plea contrary to his above plea that, though the schedule-A property has been recorded in the name of his father Nilakantha Meher, exclusively, but it was in the joint possession of all the members of his family and the same is treated as their joint family property and he has been residing with his family members at the northern side last portion of schedule-A i.e on schedule-B property by constructing house thereon. So, when, the matter of share would come, schedule-B suit property is to be allotted into his share. 20. The above stands of the defendant in paragraph-13 of his written statement is also going to show that, he is claiming title and ownership on the suit land as a co-sharer on the basis of inheritance and succession. 21. It is the settled propositions of law that, the plea of title through inheritance and succession and as well as through adverse possession are mutually destructive with each other. One cannot take the above both pleas simultaneously. If anybody will take the above both pleas i.e. title through inheritance/succession and title through adverse possession over the suit land simultaneously, then his both the pleas shall automatically be failed to be established. On this aspect propositions of law has already been clarified in ratio of the following decisions:- (i) 2020(II) CLR (S.C.) 587-Nazir Mohamed Vrs. J. Kamala and others4(Paragraph-50)4Pleading-Adverse Possession- Essence of pleading is to be looked into. RSA No.39 of 2011 Page 9 of 12 {{ 10 }} (ii) 2006 (I)-Apex Court Judgments-91(S.C.) & 2006 (I) Civil Court Cases-198 (S.C.)-Saroop Singh Vrs. Banto & others4 Limitation Act, 19634Article 64 & 654Adverse Possession4 A person pleading adverse possession has not equities in his favour, as he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish his adverse possession. (iii) 2008(4) CCC 239 (P&H)4Gurbax Singh Vrs. Karnail Singh4Adverse Possession4 The plea of adverse possession necessarily implies the admission of the title of the other side. (iv) 2007 (2) CCC 365(Guj)4Raysing Hurji Bhil & Ors. Vrs. Vaniban Manji Bhai & others4Limitation Act,1963-Article 654Adverse Possession- Burden of proof-once defendants admit title of plaintiffs- Burden lies heavily on defendant to prove on what particular date, they asserted their hostile title. (v) 2020(Supp.) OLR (S.C.) 866, 2020 (II) CLR (S.C.)577- Narasamma and others Vrs. A. Krishnaappa-Paragraph-38, (2004) 10 SCC-779-Karnataka Board Vrs. Govt. of India- (Paragraph 12)4 A plea of title and adverse possession simultaneously cannot be taken. Because, pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. (vi) (2009) 13 SCC 2294L.N.Aswathama and another Vrs. P. Prakash4Limitation Act, 1963- Article 64 & 65- Adverse Possession4(Paragraph 17 & 18)4Held, pleas based on title (when title is claimed through the plaintiff owner) and adverse possession are mutually inconsistent4Adverse possession does not begin to operate until such title over disputed property is renounced by defendant4Unless claimant possessing the property has requisite animus to possess the property hostile to the title of the true owner, period for prescription will not commence4However, plea of title claimed through another person (other than plaintiff owner) would not be mutually inconsistent with plea of adverse possession against said plaintiff owner4Property Law4Adverse Possesion. (vii) (2022) 10 SCC-217-Kesar Bai Vrs. Genda Lal & another - Article 64 & 65- parties cannot blow hot and cold at a time, because, their claim is that, they have purchased the property through registered sale deed in on breath and at the same time they have claimed perfection of their title by way of adverse possession in another breath. Both are contrary to each other. Both the pleas can be taken at the same time. (viii) 2015 (II) CLR (S.C.) 9814M. Venkatesh and Ors. Vrs. Commissioner, Bangalore Development Authority4 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 plead adverse possession over the very same property. RSA No.39 of 2011 Page 10 of 12 {{ 11 }} (ix) 2019 (Allahabad)- (I) Civil Court Cases4433 (Paragraphs 18 & 19)4Lavkush Malviya Vrs. Smt. Suman Devi & others4Adverse Possession and Inheritance4These are two inconsistent alternative pleas, which are not permissible4A party is entitled to take an alternative plea, but such alternative plea should not be mutually destructive of each other. Held, plea of title on the suit land through inheritance and adverse possession are mutually destructive of each other. 22. The defendant had prayed for declaration of his title over the suit land through the counter claim in his written statement. As per law counter claim of the Defendant against the plaintiff is a cross suit. 23. After adjudication of the suit of the plaintiff and its counter claim of the defendant, the Trial Court decreed the suit of the plaintiff and dismissed the counter claim of the defendant. But, though the defendant challenged to the decree of the suit of the plaintiff against him (Defendant) by filing the First Appeal vide R.F.A. No.11 of 2010, but he (defendant) did not challenge to the dismissal of his counter claim by preferring any independent Appeal. So, due to non-challenge to the dismissal of the counter claim (cross suit) of the defendant by preferring an independent Appeal, the judgment of dismissal to the counter claim of the defendant passed by the Trial Court has become res judicata against him (defendant) by reaching in its finality. Therefore, on the basis of the principles of res judicata, the defendant is estopped under law to claim any title over the suit land, because the refusal to his prayers i.e. for declaration of title and as well as for declaration of the sale deed No.47 dated 23.01.1991 vide Ext.5 in favour of the plaintiff as null and void have already been reached in its finality. On that aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of following decision:- RSA No.39 of 2011 Page 11 of 12 {{ 12 }} 2019 (I) ILR-Cut-736-Smt. Rama Rao Vrs. State of Orissa and others (dated 24.01.2019)- CPC 1908- Section11 read with Order 8 Rule 6-Counter claim-Res judicata-suit dismissed but counter claim allowed. Against that judgment and decree of dismissal of the suit, the plaintiff filed Appeal, but did not file any appeal against the decree of counter claim against him-there the question arises, as to whether the judgment and decree in counterclaim shall operate as res judicata. Held, yes. (2017 AIR SCW 6187 Rajni Rani & another Vrs. Khairatilal and others followed). 24. On analysis of the facts and circumstances of the suit at hand as per the discussions and observations made above, it is held that, the Trial Court as well as the First Appellate Court have not at all acted contrary to the law in passing the judgments and decrees against the defendant. Therefore, the judgment and decree passed by the Trial Court and as well as the First Appellate Court in favour of the plaintiff and against the defendant are not erroneous in any manner. For which, the question of interfering with the same through this Appeal filed by the Defendant does not arise. So, there is no merit in the Appeal filed by the Appellant. The same must fail. 25. In the result, the Appeal filed by the Appellant is dismissed on contest against the Respondent, but without cost. The judgment and decree passed by the Trial Court in C.S. No. 01 of 2009 and as well as by the First Appellate Court in R.F.A. No.11 of 2010 are hereby confirmed. Orissa High Court, Cuttack. 10th November, 2023//Utkalika Nayak// Signature Not Verified Junior Stenographer Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Nov-2023 15:29:09 RSA No.39 of 2011 (A.C. Behera), Judge. Page 12 of 12