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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.74 of 2013 (From the judgment dated 22.12.2012 and decree dated 5.1.2023 passed by learned Addl. District Judge, Balangir in R.F.A. No.53/29 of 2005-07) A.F.R. Rabindra @ Samaru Bhoi and another … Appellants -versus- Rabindra Kumar Bag and others … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr.P.K.Rath, Sr. Advocate with Ms. Shradha Das -versus- For Respondents : Mr. Debasis Tripathy, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28.08.2024. Sashikanta Mishra,J. The Defendants have filed this appeal against a reversing judgment passed by the learned R.S.A. No.74 of 2013 Page 1 of 19 Addl. District Judge, Balangir in R.F.A.No.53/29 of 2005-07 on 22.12.2012 followed by decree whereby the judgment dtd.30.7.2005 followed by decree passed by learned Civil Judge (Sr. Division), Balangir, in C.S. No.88/2003 was set aside and the suit of the Plaintiff was decreed. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The Plaintiff had filed the suit for declaration of his right, title, interest, confirmation of possession over the suit land and permanent injunction against the Defendants. The case of the Plaintiff is that the suit land was originally recorded jointly in the names of Dhanu Sahu and Kala Sahu. By a registered deed of sale executed on 23.9.1948, the said joint owners transferred 10,000 sqft. of land in favour of Brajabasi Bedbak and Mitradeb Nanda under a common registered deed of sale. Brajabasi Bedbak purchased 6000 sqft. while Mitradeb Nanda purchased 4000 sqft. Mitradeb Nanda subsequently died issueless and R.S.A. No. 74 of 2013 Page 2 of 19 without any successor. On 23.5.1955 Brajabasi Bedbak transferred 4000 sqft (equivalent to Ac. 0.089 dec.) out of his 6000 sqft of land to one Dibakar Mishra
Legal Reasoning
vide R.S.D. dtd.23.5.1955. The Plaintiff purchased the said land vide R.S.D. dtd.16.8.2002 from the sons of said Dibakar Mishra for a consideration of Rs.68,000/- and possessed the same. At that time, it was found that Defendants 1 and 2, who had been inducted as tenant on monthly rent by Dibakar Mishra in the year 1987 were in occupation of the property. The Plaintiff requested them to vacate the suit land but they and the sons of Dibakar Mishra requested to continue the tenancy. On good faith, the Plaintiff allowed them to continue as tenants in the house over the suit land on monthly rent of Rs.500/-with the understanding that they shall vacate the house upon finding suitable accommodation. As such, the defendants have no manner of right, title or interest over the suit land except as tenants. It is the further case of the plaintiff that the mothers of Defendant Nos.1 and 2 purchased some other lands under a fake deed of sale from R.S.A. No. 74 of 2013 Page 3 of 19 Defendant No.3 and adopted son of one Kapila Das. The father of Defendant No.3-Harihar Das and Jayadeb Das had earlier purchased said land from Brajabasi Bedbak on 23.12.1949. Since the plot numbers mentioned in the sale deed were incorrect and the deed was executed on a single stamp paper, the settlement authorities did not entertain the document during current settlement and did not record the same in the names of Harihar and Jayadeb. Therefore, in the year 1978 Defendant No.3, an adopted son of Kapila Das, transferred the land under two registered deeds of sale in favour of the mothers of Defendant Nos.1 and 2. Such acquisition of the adjacent land was not valid in the eye of law. Therefore, the Defendants have no manner of right either over the purchased land or the suit land. Since they refused to vacate the suit house, the plaintiff filed the suit claiming the relief as aforesaid. 4. Of the three defendants, Defendant Nos.1 and 2 contested the suit by filing written statement. The R.S.A. No. 74 of 2013 Page 4 of 19 averments relating to original ownership of the suit land of Dhanu Sahu and Kala Sahu was admitted and so also the sale of 10,000 sqft. in favour of Brajabasi Bedbak. It was also admitted that the suit land was recorded in the name of Dibakar Mishra, but it was specifically denied that the Plaintiff had ever purchased the same from the sons of Dibakar Mishra. They also denied the plea of tenancy raised by the Plaintiff. According to the Defendants, though the suit land was purchased and owned by Dibakar Mishra yet, by the time his sons executed the sale deed in favour of the plaintiff, they had already lost their title. Brajabasi Bedbak had sold the adjoining land to Harihar Das, father of Defendant No.3, and one Kapila Das after whose death their legal heirs transferred such land in favour of their mothers. After such purchase, the mothers of Defendants 1 and 2 encroached upon portions of the suit land, which were lying vacant. Some portion was also encroached by one Jatindra Mohan Pathi. According to the Defendants, such encroachment and construction of house by their R.S.A. No. 74 of 2013 Page 5 of 19 mothers was within the knowledge of Dibakar Mishra and their possession being thus open continuous with hostile animus, they have perfected their title by way of adverse possession. Therefore, according to the defendants, the Plaintiff has not derived any title on the basis of the fake sale deed. 5. Basing on the rival pleadings, the trial Court framed the following issues for determination; (1) Whether the plaintiff has cause of action to file this suit ? (2) Whether the plaintiff acquired valid title over the suit land by virtue of his purchase of suit land from the sons of Dibakar Mishra by registered sale deed ? (3) Whether the Defendant No.1 and Defendant No.2 have acquired title by way of adverse possession over the suit land? (4) Whether the plaintiff has got right, title interest and possession over the suit land? (5) Whether the suit is under valued ? (6) Whether the plaintiff is entitled to the relief prayed for? R.S.A. No. 74 of 2013 Page 6 of 19 Issue Nos.2,3 and 4 were important issues, which were taken up together. 6. After analyzing the oral and documentary evidence on record, the Trial Court held that the sale of the suit land in favour of the plaintiff was not accompanied by delivery of possession. Further, the plaintiff could not adduce proof that that he was financially sound enough to purchase the suit land for consideration of Rs.68,000/-. The sale deed did not mention about the existence of any residential house over the suit land though the R.O.R. shows that there was a house thereon. The trial Court therefore, believed the plea of the defendants that they had constructed house over the suit land taking electricity, water supply and were in continuous possession by encroaching upon the suit land. The trial Court therefore, found that the Defendants being in continuous possession at least from 1984 onwards for more than the statutory period of 12 years, had perfected their title by way of adverse possession and R.S.A. No. 74 of 2013 Page 7 of 19 consequently the Plaintiff had not acquired any title. On such findings, the suit was dismissed. 7. Being aggrieved, the Plaintiff carried the matter in appeal to the district Court. The 1st Appellate Court, after considering the grounds raised observed that the point to be decided in the appeal is, whether the Defendants have acquired title by adverse possession. The 1st Appellate Court disapproved the approach of the trial Court in entering into the authenticity and legitimacy of the sale deed even though the same was not in dispute. Passing of title being a matter between vendor and vendee cannot be agitated at the mere asking of a 3rd party. Moreover, even if consideration is found to have not passed the validity of the document cannot be negatived even at the instance of the vendor much less by a stranger. On the question of adverse possession, the 1st Appellate Court found that the sale deed in question (Ext.6) mentions the suit land as ‘Meladiha’ whereas the R.O.R. marked Ext.7 shows the existence of a house. But the 1st Appellate Court took R.S.A. No. 74 of 2013 Page 8 of 19 note of the admission made by the vendor that the suit property was so described as vacant land only to avoid stamp duty. Therefore, there is nothing wrong in holding that Dibakar Mishra had constructed a house over the suit land. 8. Such being the case, the question of encroachment of different portions of the suit land by mother of the Plaintiff does not arise. Moreover, there is no pleading as to when the mothers of the defendants constructed house over the encroached portions of the suit property. The 1st Appellate Court did not place any reliance on the holding tax receipts, electricity bills and water tax etc. as they are not adequate to prove adverse possession. Basically on such findings, the 1st Appellate Court found that the necessary ingredients to prove acquisition of title by adverse possession was absent. On the contrary, the Plaintiff clearly proved his acquisition of title on the basis of the sale deed. On such findings, the judgment of the trial Court was set aside and the right, title, interest and possession of the R.S.A. No. 74 of 2013 Page 9 of 19 Plaintiff over the suit land was declared and other reliefs as claimed were granted. 9. Being aggrieved, the defendants have filed the instant Second Appeal, which was admitted on the following substantial question of law; taken “Whether the plea of title and as well as the plea of adverse possession the (Appellants) simultaneously over the suit land for the dismissal of the suit of the Plaintiff vide C.S. No.88 of 2003 is sustainable under law? Defendants by Further, at the time of hearing the following additional substantial question of law was framed; of learned decreeing “Whether the judgment and decree lower passed by the the Appellate Court plaintiff’s suit by taking note of defendant’s adverse claim possession ignoring the other findings and materials available on record relating to plaintiff’s claim of title on the basis of an invalid Sale Deed without any house relating to a vacant land and evidences of existence of a house over the suit findings and the land conclusions arrived at by the learned thereby R.S.A. No. 74 of 2013 Page 10 of 19 lower Appellate Court suffers from the perversity of not considering materials available on record.”
Legal Reasoning
10. Heard Mr. P.K.Rath, learned Senior counsel, with Ms. Shradha Das, for the Defendants-Appellants and Mr. Debasis Tripathy, learned counsel for the Plaintiff- Respondents. 11. Assailing the findings of the 1st Appellate Court Mr.Rath would argue that the trial Court clearly found that the sale deed relied upon by the plaintiff has no legal sanctity inasmuch as the same materially differs from the ROR regarding description of the suit property. Elaborating his argument Mr. Rath has taken the Court through the recitals of the sale deed marked Ext.6 wherein the suit land has been described as ‘Meladiha’ which means, open space for homestead whereas, the R.O.R.(Ext.7) shows the presence of a house over the suit land. That apart, the trial Court found from the evidence on record that the Plaintiff was a mere betel shop owner with no financial capacity to pay the consideration amount of Rs.68,000/-. R.S.A. No. 74 of 2013 Page 11 of 19 Therefore, the sale deed was rightly held by the trial Court a nominal document without delivery of possession or payment of consideration. Mr. Rath would further argue that on the other hand, the defendants clearly proved that their mothers had encroached upon the suit property to the extent of 1625 sqft. and 1500 sqft. respectively and had also constructed houses thereon. Such encroachment and construction of houses was within the knowledge of the true owner Dibakar Mishra. This was in 1984. Therefore, by the time the plaintiff claims to have purchased the suit property from the successors of Dibakar Mishra, his vendors had lost their title over it because of lapse of the statutory period of 12 years. According to Mr. Rath therefore, the 1st Appellate Court did not consider the maintainability of the suit being filed long after the period provided under Article 64 of the Limitation Act. 12. Per contra, Mr. Debasis Tripathy would argue that the vendors of the Plaintiff never objected that the consideration money had not been paid by him. The R.S.A. No. 74 of 2013 Page 12 of 19 trial Court made out a third case altogether which is not permissible. The trial Court further placed the burden of proof on the Plaintiff negatively to rebut the plea of the Defendants regarding adverse possession, which is contrary to law. The Defendants, on the hand, could not prove the necessary ingredients to maintain the plea of adverse possession by adducing evidence as to the exact time and nature of the possession. According to Mr.Tripathy therefore, the 1st Appellate Court rightly found that the trial Court erroneously ignored the legal effect of the sale deed marked Ext.6 in favour of the Plaintiff and thereby, wrongly decided the suit. 13. It is borne out from the evidence that in 1936 settlement, 10,000 sqft of land was recorded jointly in the names of Dhanu and Kala. They transferred 6000 sqft to Brajabasi Bedbak and 4000 sqft to Mitradeb Nanda. The present dispute relates only to the portion sold to Brajabasi Bedbak. Brajabasi Bedbak admittedly sold 4000 sqft. to Dibakar Mishra vide R.S.D R.S.A. No. 74 of 2013 Page 13 of 19 dtd.23.5.1955 which corresponds to Ac 0.089 decs. Said land was subsequently sold by his sons Somanath, Biswanath and Manoranjan to the Plaintiff Rabindra Baug vide R.S.D dtd.16.8.2002 (Ext.6). The Plaintiff’s claim of title is based on the above sale transaction. Before examining the merit of the claim of Defendant Nos.1 and 2 of adverse possession, it would be apposite to examine whether there is any infirmity in the acquisition of title by the Plaintiff. The Defendants have raised an objection that the recitals of Ext.6 mentions the suit property as ‘Meladiha’ but the R.O.R. marked Ext.7 shows the presence of a house on it. Firstly, this Court would observe that such a discrepancy, per se, cannot nullify a valid sale transaction if all other ingredients are found to have been established. Secondly, as held by the 1st Appellate Court and according to this Court, rightly so, a plausible explanation has been given for the discrepancy inasmuch one of the vendors himself (P.W.3) admitted that the suit property was so described only to avoid stamp duty. Another objection R.S.A. No. 74 of 2013 Page 14 of 19 has been raised by the trial Court that no consideration had passed as the Plaintiff being a betel shop owner with meager income did not possibly have the source to purchase the property. This Court has perused the written statement filed by the Defendants 1 and 2. There is absolutely no whisper in this regard by them, rather they have positively claimed that the Plaintiff’s income is more than Rs.12,000/- for which more court fees ought to have been paid. Thus, even though it was nobody’s case, the trial court came up with a third case altogether. It goes without saying that such a course of action is not permissible in law. Even otherwise, non-payment of consideration, if at all, is a dispute to be raised by the vendor. In the instant case, no such dispute has been raised by any of the vendors. Therefore, the finding of the trial court that non- passing of the consideration renders the sale deed a nominal one is untenable because of the settled position of law that a sale transaction cannot be invalidated only on such ground. As has been held by the 1st Appellate Court, the sale deed is a registered R.S.A. No. 74 of 2013 Page 15 of 19 document carrying with it a presumption of correctness. The argument that the R.O.R. having mentioned the existence of a house falsifies the sale deed is actually counterproductive for the defendants as has been held by the 1st Appellate Court inasmuch if according to them there was already a house constructed by the owner Dibakar Mishra, then obviously, the question of construction of further houses over the suit land by the mothers of Defendants 1 and 2 appears to be difficult to believe. 14. Coming to the plea of adverse possession raised by the Defendants, as already stated, it is claimed that the mothers of Defendant Nos.1 and 2 purchased the adjoining land vide R.S.D marked Exts.A and L. The adjoining land relates to the balance 2000 sqft land available with Brajabasi Bedbak which he sold to Harihar Das and Jayadeb Das on 23.12.1949 vide R.S.D. marked Ext.33 and to Rama Ch. Das vide R.S.D. marked Exts.34 and 35. It is claimed that the mothers of Defendant Nos.1 and 2 encroached 1625 R.S.A. No. 74 of 2013 Page 16 of 19 sqft. and 1500 sqft upon the suit land and constructed their houses to the knowledge of the true owner Dibakar Mishra. This Court has perused the written statement filed by the Defendants and finds that there is no specific pleading as to when they entered into the suit land and constructed the houses. As has been rightly held by the 1st Appellate Court, mere production of the holding tax receipts or electricity bills and water tax cannot be conclusive proof of possession in the absence of the plot numbers of the exact extent of land under occupation. Unless the Defendants come up with a clear case of having entered upon the suit land from a particular date expressing hostile animus to the true owner and further of being in continuous open and peaceful possession for the entire duration of the statutory period of 12 years, they cannot be said to have perfected their title by way of adverse possession. In this regard, this Court finds force in the argument advanced by Mr.Tripathy, learned counsel for the Plaintiff, that the trial Court appears to have wrongly R.S.A. No. 74 of 2013 Page 17 of 19 placed the burden of proving the negative on the Plaintiff. In other words, adverse inference has been drawn against the Plaintiff for his inability to rebut the claim of the Defendants that they were in possession for 12 years. It must be mentioned that the trial Court has not done so in so many words, but instead of examining the plea of adverse possession on its own strength, the trial Court has dwelt upon the weaknesses in the Plaintiff’s case, which needless to mention, is not a correct approach at all in the facts of the case. 15. For the foregoing reasons therefore, this Court finds that none of the grounds advanced by the defendants to assail the impugned judgment are valid enough to persuade this Court to take a different view than the 1st Appellate Court. Thus, the substantial questions of law as framed are answered against the defendants. This Court holds that the judgment passed by the 1st Appellate Court does not warrant any interference. R.S.A. No. 74 of 2013 Page 18 of 19 16. In the result, the appeal fails and is therefore, dismissed but without any costs. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2024 10:58:10 R.S.A. No. 74 of 2013 Page 19 of 19