The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.F.A Nos. 196 & 197 of 2008 Durga Charan Lenka …. Appellant Mr. Trilochan Nanda, Advocate -Versus- Ketaki Lenka & others …. Respondents Mr. S.K.Mishra, Senior Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:18.12.2023 1. Instant appeals under Section 96 of the Civil Procedure Code, 1908 are at the instance of the appellant challenging the correctness, legality and judicial propriety of the impugned judgment of the learned Adhoc Additional District Judge, FTC No.III, Bhubaneswar promulgated in T.S. No. 11/81 of 2005/2002, whereby, the suit was decreed in favour of respondent No.1 on account of her adverse possession vis-à-vis the suit land and also dismissing the counter claim for recovery of
Legal Reasoning
the suit from defendants on the grounds inter alia that the same is not legally tenable and hence, therefore, liable to be set aside. 2. Respondent No.1 instituted the suit in T.S. No. 11/81 of 2005/2002 for declaration of her right, title and interest over the suit schedule land, she having perfected the same by remaining in adverse possession and also for confirmation of such possession with permanent injunction against the appellant. In the suit, the plaintiff and the appellant adduced oral and documentary evidence. The learned court below framed as many as six issues and proceeded to examine the evidence led by the respective parties and finally, reached at a conclusion that the plaintiff to have perfected her title by way of adverse possession in respect of R.F.A Nos. 196 & 197 of 2008 Page 1 of 7 Durga Charan Lenka Vrs. Ketaki Lenka & others the suit land and such possession was accordingly confirmed dismissing the counter claim as a result. The appellant being unsuccessful has filed the appeals against decree of the suit and dismissal of counter claim on the ground that respondent No.1 has not acquired title adversely, inasmuch as, the learned court below failed to consider and appreciate the evidence on record in its proper perspective.
Legal Reasoning
3. Heard Mr. Nanda, learned counsel for the appellant and Mr. Mishra, learned Senior Advocate appearing for the respondents. 4. Mr. Nanda, learned counsel for the appellant submits that the RoR was finally published on 8th June, 1995 whereafter he challenged the recording of forcible possession in its remarks column in favour of the husband of respondent No.1, which was thereafter, deleted by the order of the appellate authority. It is contended that neither the plaintiff nor her husband ever resided over the suit land and in so far as the alleged possession is concerned, it was with the permission of the appellant, for the husband of respondent No.1 to look after the suit premises and to collect rent on his behalf. Mr. Nanda would further submit that after the death of her husband in 2001, respondent No.1 in course of time did not pay the monthly rent and without permission of the appellant, she forcibly remained in possession of the suit land with a malafide intention to grab it and cooked up a story of long possession with an imaginary cause of action. It is contended that there has been no positive assertion from the side of the plaintiff with regard to nature of possession to be adverse. It is contended that there is no material on record to show that the plaintiff’s husband ever paid consideration money for the suit land and in absence of any specific plea as to from when the possession can become adverse, learned Lower Appellate Court could not have decreed the suit with the confirmation of title in her favour since the law is well settled that mere possession by itself is not adverse R.F.A Nos. 196 & 197 of 2008 Page 2 of 7 Durga Charan Lenka Vrs. Ketaki Lenka & others to the interest of the real owner. In support of such contention, Mr. Nanda learned counsel for the appellant refers to the following decisions, such as, Hemaji Waghaji Jat Vrs.Bhikhabhai Khengarbhai Harijan & others AIR 2009 SC 103; L.N. Aswathama & Others Vrs. P.Prakash 2009(II) CLR(SC) 446; Thakur Kishan Singh(Dead) Vrs. Arbind Kumar AIR 1995 SC 73; Deva(Dead) Through LRS Vrs. Sajjan Kumar (Dead) By LRS AIR 2003 SC 3907; Bhim Singh & others Vrs. Zile Singh & others AIR 2006 P&H 195; Kesar Bail Vrs. Genda Lal & Others AIR 2022 SC 5039; Annakili Vrs. A. Vedanayagam & Others AIR 2008 SC346; Mohan Lal(Deceased) through his LRs Kachru & others Vrs. Mirza Abdul Gaffar and others AIR 1996 SC 910; Singaravelu Mudaliar Vrs. Laxmi Ammal (1998) IMLJ 601; Government of Kerala & others Vrs.Joseph & others 2023/SC/693; Karnataka Board of WAKF Vrs.Government of India & others (2004) Supp.(1) SCR 255 majority of which relate to plea of title and adverse possession. The contention is that the possession of the plaintiff has been permissive and there is no evidence clear and specific as to from when the same had become adverse and mere long possession by itself would not be sufficient to confer on her the title, the fact which was completely lost sight of by the learned court below,
Decision
hence, therefore, the impugned judgment is liable to be set aside in the interest of justice. 5. Mr. Mishra, learned Senior Advocate appearing for the respondent No.1 submits that the findings of the learned court below are correct and in accordance with law and he refers to the following decisions, namely, Amrendra Pratap Singh Vrs. Tej Bahadur Prajapati & others 2004(II) OLR (SC) 117; Gurunath Manohar Pravaskar & others Vrs.Nagesh Siddappa Navalgund & others 2008(I) CLR(SC) 463; Ravinder Kaur Grewal & others Vrs. Manjit Kaur & others 2019(II) OLR(SC) 478; Purna Chandra Palai Vrs. Collector & District Magistrate, Bhadrak & others 2019(II) OLR 519. It is contended that the learned Trial court appreciated R.F.A Nos. 196 & 197 of 2008 Page 3 of 7 Durga Charan Lenka Vrs. Ketaki Lenka & others the facts pleaded and evidence both oral and documentary and finally decreed the suit dismissing the counter claim of the appellant. It is submitted that the possession of the plaintiff is well established in view of the proceedings in Objection Case Nos. 5105/603 and 5104/602 vide Exts. 3 & 4, wherein, note of forcible possession was allowed to remain challenging which Settlement Appeal Nos. 60, 61, & 62 of 1994 were filed and since defendant No.1 was well aware of such possession and had not taken any legal action against the plaintiff or her husband including proforma respondents to recover the suit land within prescribed period of 12 years commencing from 1982, in view of Section 27 of the Limitation Act read with Article 65 thereof, the right, title and interest over the same with the appellant stood extinguished. While advancing such an argument, Mr. Mishra, learned Senior Advocate refers to the decision in Amrendra Pratap Singh (supra). It is at last contended that since the possession was confirmed by order of the Assistant Settlement Officer in objection proceedings with an order dated 31st July, 1982, though the note of forcible possession was deleted in final RoR vide Exts. 12 & 13 in the year 1995 consequent upon orders under Ext. 8 to 10, it does not obliterate the length of possession and its nature which has been adverse thereby confirming the title which has correctly been held by learned court below as against the plea on record that the possession has been since 1969. 6. In so far as the acquisition of title by adverse possession is concerned, in catena of decisions which has been held and concluded that the plea in that regard should be specific and to satisfy that it was well within the knowledge of real owner.In Annakili (supra), a decision relied upon from the side of the appellant, it has been held by the Apex Court that in order to accept plea of adverse possession, animus possidendi is one of the requisite ingredients and mere possession for more than 12 years does not ripen into title. In the aforesaid decision, the essential R.F.A Nos. 196 & 197 of 2008 Page 4 of 7 Durga Charan Lenka Vrs. Ketaki Lenka & others conditions of adverse possession have been reiterated which are to the effect that (i) the possession of the defendant should become adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. It is held further that animus possidendi is an ingredient of adverse possession. As the law is well settled, mere possession of the land by itself is unlikely to confer any title on the possessor, who must have animus possidendi and hold the land adverse to the title of true owner. It is clarified in the said case that the possession must be shown to exist with the hostile animus and the possessor must continue in the said capacity for the period prescribed under the Limitation Act. Similarly, Amrendra Pratap Singh (supra), the Supreme Court held that process of acquisition of title by adverse possession springs in to action essentially by default or inaction of the owner which stretched over a period of 12 years results in extinguishment of the latter’s title. So therefore, settled position of law is that the person in possession claiming title by adverse means must have the hostile animus against the real owner, who takes no action either by default or otherwise which would result in extinction of such title in view of Section 27 of the Limitation Act. 7. In so far as case of the appellant is concerned, husband of the plaintiff was admitted into the suit premises to look after the same which was in the year 1998, who died in 2001. The suit has been instituted in the year 2002 claiming title by way of adverse possession. It is claimed by the appellant that the possession has been permissive and cannot therefore be construed as adverse. In so far as the claim of possession from 1969 onwards is concerned, the same is not supported by any material evidence. It is made to reveal from the evidence on record that defendant No.1 himself admitted the fact that the husband of the petitioner was entrusted to look after the suit land and to collect the rent and also to raise vegetables. However, such admission of defendant No.1 R.F.A Nos. 196 & 197 of 2008 Page 5 of 7 Durga Charan Lenka Vrs. Ketaki Lenka & others examined as D.W. 1 is unlikely to assist defendant No.1 in so far as plea of adverse title is concerned. Such possession is permissive even by accepting the evidence of D.W.1. Furthermore, the possession of P.W. 1 and for that matter, by her husband was challenged by the appellant with regard to note of forcible possession reflected in Exts. 6 & 7 and it was finally deleted from Hal RoR i.e. Exts. 12 & 13 in the year 1995. Initially, when the plaintiff’s husband was inducted into the suit land for a specific purpose as deposed by D.W. 1, such possession can not be held as adverse. In order to convert a possession to adverse from permissive, there has to have specific pleading on record denying the title of the real owner. The note of forcible possession as appearing in Exts. 6 & 7 was challenged by the appellant and finally, Hal RoR was published deleting the same which was pursuant to the orders vide Exts. 8 to 10. So, therefore, it has to be held that the appellant challenged the note of forcible possession so recorded and of course, it was deleted long after the order dated 31st July, 1992 of the learned Assistant Settlement Officer but nevertheless, considering the evidence on record and the fact that the possession at the initial stage to be permissive without any specific pleading with particulars as to from when it had become adverse, the Court is of the considered view that learned lower court below committed error in confirming the title with a conclusion that such title with the appellant stood extinguished. It is reiterated that a possession howsoever long cannot be treated adverse unless a plea of hostile animus and possession is specifically pleaded and evidence led in support thereof. Considering the evidence of the respective parties and in absence of any clear and specific pleading and evidence from the side of plaintiff as to the date or time since when the possession to be adverse, nature of such possession and with the hostile animus, the same being openly and undisturbed, the Court is not inclined to accept that there has been adverse possession R.F.A Nos. 196 & 197 of 2008 Page 6 of 7 Durga Charan Lenka Vrs. Ketaki Lenka & others established rather the appellant did whatever possible to protect the title even challenged the note of possession and managed to get it deleted in 1995.So, therefore, the conclusion is that long possession even by the husband of the plaintiff and succeeded by the latter after 2001 on the death of former does not ripe into any title by adverse means in absence of clear pleading and evidence in that regard. Hence, the findings of the learned court below shall have to be interfered with not being in consonance with the settled law. Accordingly, the substantial questions of law stand answered. 8. Hence, it is ordered. 9. In the result, the appeal is allowed. As a necessary corollary, the impugned judgment in T.S. No. 11/81 of 2005/2002 by learned Adhoc Additional District Judge, FTC No. III, Bhubaneswar is hereby set aside with the suit dismissed and counter claim allowed. However, in the circumstances, the parties are directed to bear their respective costs throughout. Kabita (R.K. Pattanaik) Judge R.F.A Nos. 196 & 197 of 2008 Page 7 of 7