Civil Suit No. 394-32 of 2011 · The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.29 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 28th October, 2022 & 10th November, 2022 respectively passed by the learned Additional District Judge, Rairangpur in R.F.A. No.16 of 2015 confirming the judgment & decree dated 30th April, 2015 & 16th May, 2015 respectively passed by the learned Civil Judge, Junior Division, Rairangpur in Civil Suit No.394-32 of 2011-02. Abhikshit @ Avikshit Giri & Another ---- -versus- …. Appellants Sibitri Giri & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.A.R. Dash, S. Kanungo and S. Kar (Advocates) For Respondents - M/s.A.P. Bose, S. Swain and D. Sahoo (Advocates) CORAM: MR. JUSTICE D.DASH Date of Hearing : 04.04.2024 : Date of Judgment: 15.04.2024 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have RSA No.29 of 2023 Page 1 of 14 assailed the judgment & decree dated 28th October, 2022 & 10th November, 2022 respectively passed by the learned Additional District Judge, Rairangpur in R.F.A. No.16 of 2015.
Facts
The present Respondents, as the Plaintiffs, had filed the suit, i.e., Civil Suit No.394-32 of 2011-02 in the Court of the learned Civil Judge, Junior Division, Rairangpur for declaration of their right, title, interest and possession over the suit land with other consequential relief of correction of the record of right and permanent injunction. The suit, having been decreed, these Appellants, being the aggrieved Defendants, had carried the Appeal under section 96 of the Code, which has also been dismissed. Hence, the present Second Appeal is at the instance of these Appellants, who have remained as the unsuccessful Defendants before the Trial court as well as the First Appellate Court. 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. Plaintiffs’ Case:- One Raghumani Giri was the recorded owner of the suit land in Schedule-A. The suit land was recorded under Sabik Khata No.133 situated in Village-Dova and was in possession of Raghumani. Said Raghumani, being in need of money, sold the RSA No.29 of 2023 Page 2 of 14 land in Schedule-A to Ugresan Giri, who happens to be the grandfather of P.W.2 through registered sale deed dated 30.03.1937 followed by delivery of possession. Ugresan continued to possess the same as its owner and on his death, his legal heirs, i.e, his widow, namely, Chitra and son Bhikari succeeded to the same and came into possession. Bhikari died leaving behind his mother, wife and minor son, namely Satyaban and they are the Plaintiffs in the present suit. After the death of Bhikari, his mother, being in urgent need of money, in order to meet the family expenses, sold the land measuring Ac.0.03 dismissal from out of the land in Schedule-A to Defendant No.1 by registered sale dee dated 30.11.1962 and she delivered possession of the same to Defendant No.1. After execution of the sale deed, the Plaintiffs continued to be in possession of remaining portion of Schedule-A land as its owner till institution of the suit. It is the further case of the Plaintiffs that during current settlement, without their knowledge, the Defendant No.1 somehow managed to get the entire Schedule-A land recorded in his name when the fact remains that he had purchased only Ac.0.03 decimals land from Schedule-A and was in possession of the said portion of the land. On 12.06.2002, when the Plaintiffs came to know that the unsold land of Ac.0.04 decimals have been erroneously recorded in the name of Defendant No.1, they filed the suit. RSA No.29 of 2023 Page 3 of 14 After the disposal of the suit by passing of the judgment and drawal of the decree on 30.04.2015 & 16.05.2015 respectively, the Plaintiffs came to know that the Defendant No.1 has executed sale deed in favour of Defendant Nos.2 & 3 on 20.05.2002 in respect of Schedule-B land although he had no right, title and interest over the same so as to alienate. The Defendant Nos.2 & 3 have filed their joint written statement whereas the Defendant No.1 has been set ex parte although. 4. In the written statement, the Defendant Nos.2 & 3 admitted the fact that Schedule-A land stood recorded in the name Raghumani and he had sold the same to Ugresan by registered sale deed. It is further stated that although Chitra, the wife of Ugrasen sold Ac.0.03 decimals of land to Defendant No.1 by registered sale deed dated 30.11.1962, she had delivered possession of the land more than the said extent as mentioned in the sale deed and since then the Defendant No.1 had been in possession of the entire schedule-A land. It is also stated that the Defendant No.1 has executed the sale deed in favour of Defendant Nos.2 & 3 on 20.05.2002 for the entire land measuring land Ac.0.07 decimals. In the Hal Settlement, the Authority, after due enquiry, has recorded the suit land in the name of Defendant No.1. They state in the RSA No.29 of 2023 Page 4 of 14 alternative that by virtue of open, peaceful, long and continuous possession of the suit land since the time of the purchase, i.e., 30.11.1962 by Defendant No.1, which has come to the hands of Defendant Nos.2 & 3, there has been perfection of title over the suit land by way of adverse possession. 5. On the above rival pleadings, the Trial Court framed in total six issues. Taking up the first four issues, which include the important issue as to the claim of the Plaintiffs having the right, title and interest over the suit land and their possession over the same; upon examination of the evidence and their evaluation, the answer has been rendered in favour of the Plaintiffs and against the Defendants. Said answer has led the Trial Court to decree the suit. The Defendants, being aggrieved by the said judgment and decree passed by the Trial Court, having carried the First Appeal; the First Appellate Court, addressing the rival contentions raised before it by examining the evidence independently at its level and upon their assessment, has at the end, affirmed the findings returned by the Trial Court in concluding that it has not been proved that Chitra, on execution of Ext.2, had delivered possession of the entire land in Schedule-A of the plaint to the Defendant No.1 as against the extent of land indicated in Ext.2 as Ac.0.03 decimals while thus holding that the sale under Ext.2 is RSA No.29 of 2023 Page 5 of 14 valid to the extent of Ac.0.03 decimals of land from out of the land measuring Ac. 0.07 decimals of which possession had been delivered to Defendant No.1. It has been said that the Defendant No. 1 had the right, title and interest over the land to that extent Ac.0.03 decimals and not more and, therefore, he could not have transferred Ac.0.07 decimals of land to Defendant Nos.2 & 3 under registered sale deed (Ext.4). It has also been held by the First Appellate Court that the Defendants have not been able to establish their case of acquisition of title over the land in excess of the land originally purchased by way of adverse possession leading to the extinguishment of the right, title and interest of the Plaintiff over the said excess extent of land. 6. The Appeal has been admitted to answer the following substantial question of law:- “Accepting for a moment that the Defendant No.1 having purchased the land measuring 3 decimals under a registered sale deed and being delivered with the possession of the same by its vendor had also been delivered with the possession of 4 more decimals adjoining thereto; the Defendant Nos.1 thus having come into possession on that very day over 7 decimals of land whether the nature of possession in respect of 4 decimals of land would be permissive or it would be hostile to the true owner and if by such conduct of the vendee, it can be said that he on that day had also claimed title in respect of the land unto himself for which he was having no sale deed in his favour?” RSA No.29 of 2023 Page 6 of 14
Legal Reasoning
permissible to be so ordered by this court in seisin of the Second Appeal and said proposal at this belated stage is not acceptable looking the need of Plaintiffs as they do not agree to the same. 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Trial Court as well as the First Appellate Court. I have also travelled through the evidence both oral and documentary let in by the parties. 10. The Defendant Nos.2 & 3, in their written statement, have stated that Chitra had sold the land to one Akshaya Kumari Giri (Defendant No.1) by registered sale deed dated 30.11.1962, which has been admitted in evidence and marked Ext.2. The extent of land is stated to be Ac.0.03 decimal. Though it is said that Chitra delivered possession more than the land mentioned in the deed, it is, however, not stated that the possession so delivered was for what extent of land and what was the extent of land in excess of that Ac.0.03 of land whose possession had been delivered by Chitrat to Akshaya, who possessed the same as the purchaser. However, in paragraph-11 of the written statement, it is said that Chitra had delivered possession of the entire land to Defendant No.1 and since then he was in possession of the same, which has been recognized in the Hal settlement in favour of Defendant No.2. Admitted position as per the Defendant’s case stands that Defendant No.1 for the first time made entry over the RSA No.29 of 2023 Page 10 of 14 property by virtue of sale deed (Ext.2) wherein the extent of land finds mention as Ac.0.03 decimals. The Defendant No.1 is not saying to be having his own land near the said land. It is not the case of the Defendants that Chitra had sold Ac.0.07 decimals and that its extent was inadvertently written as Ac.0.03 decimals in the registered sale deed and that he had paid the consideration for that Ac.0.07 decimals. Nor it is shown through evidence that the consideration paid was the prevailing market price for Ac.0.07 decimals of land so as to infer that the sale was for Ac.0.07 decimals. The plea taken by the Defendants that a vendor having sold lesser extent of land would deliver greater extent of his/her land for no reason and why and what for the sacrifice and if so under any agreement or by mistake does not per se stands to acceptance. In such event, the nature of possession of the vendee over the excess land cannot be viewed as that of owner in denial of title of the vendor. Secondly, if the owner-vendor delivered the possession of the land in excess then what she/he sold, that entry if believed, then is not lawful, which if continues in that state and remains as such and not by exhibiting hostile animus to that of the owner and thus nothing but permissive as here already stated that the Defendants do not state to have purchased the entire land although the extent in the sale deed was less. The Defendants thus admit to have purchased only Ac.0.03 decimals of land. The recitals of the sale deed (Ext.2) are to the effect that Page 11 of 14 RSA No.29 of 2023 Chitra, being the vendor, had delivered possession of that Ac.0.03 decimals of land to the vendee (Defendant No.1). Therefore, the Defendants more particularly Defendant No.1 are bound by the recitals in the sale deed and they are also in that way estopped from pleading otherwise, which also is in no way explained. The Defendants next do not plead and prove as to from when on any later date the possession of Defendant No.1 turned hostile to the vendor-Chitra. Moreover, the Defendant No. 1 has neither filed the written statement nor has come to depose even a word as regards said delivery of possession by Chitra. The purchaser of a portion of land belonging to vendor when possesses that land as its owner having duly acquired under the instrument of sale, he having come to possess some more portion of contiguous land belonging to the very vendor, cannot be said to have so possessed as that of owner in denial of the title of the vendor when his possession of the purchased land is in acceptance of the ownership of his vendor and by acquisition through purchase, he too is estopped from denying the ownership of the contiguous land belonging to the same vendor. For so claiming, it has to be pleaded and proved that from any later date after surrendering the possession as taken at the time of purchase, he/she again began to possess afresh the said excess land afresh by denying the title of the owner and asserting the title unto himself to the Page 12 of 14 RSA No.29 of 2023 knowledge of the vendor. The possession of the contiguous land on that very day of beginning to possess the purchased land has to be said to be in admitting the title/ownership of the vendor and as here it is said that the same state of affair continued all through, the nature of possession cannot at any time be found to be hostile. Therefore, the possession of the said vendee here the Defendant No.1 in respect of Ac.0.04 decimals of land which is in excess of his purchased of land measuring Ac.0.03 decimals even if accepted to have been from the time of execution of the registered sale deed vide Ext.2, the nature of said possession of the excess land is bound to be held as permissive not at all hostile which cuts the case/claim of the Defendants at its root. The Courts below although have not bestowed their examination and attention in the above direction, yet for the discussion and view as expressed above; the ultimate decisions rendered by the Trial Court as well as the First Appellate Courts stand to hold the field in the eye of law and thus have to sustain. 11. In the wake of aforesaid discussion and reasons; this Court answers the substantial question of law against the Defendants, which leads to confirm the judgments and decrees passed by the Trial Court as well as the First Appellate Court in decreeing the suit. RSA No.29 of 2023 Page 13 of 14 The contesting defendants, having projected the case as to have acquired title over the land even over the land in excess of the extent indicated in the sale deed, Ext. 2 since have been unsuccessful in that attempt; it is not permissible to place the hands of equity upon them so as to be settled with the said suit land or any part of it and as per law, this Court cannot so direct the Plaintiffs to sale when they do not agree to that proposal. However, it is needless to observe that it would always be open for the parties to so decide amicably notwithstanding the result of the lis. The contesting Defendants are at liberty to make an endeavour at their end. 12. Resultantly, the Appeal stands dismissed. No order as to cost. (D. Dash), Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 22-Apr-2024 11:28:59 RSA No.29 of 2023 Page 14 of 14
Arguments
7. Mr.A.R. Dash, learned counsel for the Appellants (Defendant Nos.1 & 2) submitted that Chitra having sold land to Defendant No.1 by registered sale deed (Ext.2) way back on 30.11.1962 although the extent of land indicted in the sale deed was Ac.0.03 decimals, she had delivered possession of Ac.0.07 decimals of land and, therefore, from the date of purchase, the Defendant No.1, having remained in possession of the total extent of land Ac.0.07 decimals, which includes the land covered under registered sale deed (Ext.2), the nature of such possession of the land in the hands of Defenant No.1 is certainly as that of owner and can never be permissive. He, therefore, submitted that when such possession continued from that time onwards, the suit having been filed in the year 2002, the Defendant Nos. 2 and 3 can very well be said to have perfected their right, title and interest over the land in excess of the extent indicated in the sale deed; that is over Ac.0.04 decimals by way of adverse possession as their possession gets tacked with the possession of the Defendant No. 1 and as the possession was as of owners and in exercise of all such rights of ownership, which obviously is in denial of the title of the true owners squarely exhibiting hostile animus. He, in the alternative, submitted that in the event, this court renders the answer to the substantial question of law in favour of the Plaintiffs, keeping in view the fact that the land in the suit is Page 7 of 14 RSA No.29 of 2023 in the long standing possession of the Defendants as an equitable measure either the land to the extent of Ac.0.04 decimals or a part of it be settled in the name of the Defendants who are ready and willing to pay the market value of the same as it stands today to the Plaintiffs by giving appropriate directions to that effect to the Plaintiffs. 8. Mr.A.P. Bose, learned Counsel for the Respondents (Plaintiffs) submitted all in favour of the findings returned by the Trial Court, which has been affirmed by the First Appellate Court. According to him, the Defendant No.1, having purchased the land to the extent of Ac.0.03 decimals under Ext.2, by mere possession of the land belonging to the Plaintiffs lying by the side of the said purchased land, which in fact is a part of one plot even if goes on for a long period that would not enure to the benefit of the purchasers in establishing their claim of acquisition of title over the excess portion of the land by way of adverse possession. He further submitted that the Defendants, in order to thwart the claim/case of the Plaintiffs over that Ac.0.04 decimals of land were under legal obligation to specifically plead and prove that after execution of the registered sale deed under Ext.2, Chitra had delivered possession of entire Ac.0.07 decimals of land as if to have been so sold by her with the land as indicated in the sale deed which, however, has not been so pleaded and proved by RSA No.29 of 2023 Page 8 of 14 leading a clear, cogent and acceptable evidence. He further submitted that when the Defendant No.1 purchased Ac.0.03 decimals of land from Chitra and it is not said that the purchase was of the land to the extent of Ac.0.07 decimals, the possession of Defendant No. 1 in so far as the excess land is concerned even if is accepted to have commenced from that date of purchase, it can never be in denial of the title of the true owner, i.e., the vendor-Chitra when the basis of entry over the suit land in acceptance of the ownership/title of his vendor to have lawfully come to his hand as the purchaser in respect of only the extent as indicated in the sale deed but not against the land excess to that. He further submitted that when the Defendant No.1 admits the ownership of Chitra in respect of the land covered Ext.2 and he to have acquired from her by way of purchase; that would also stand as the admission of the title/ownership of Chitra in respect of the excess land, the possession of which can never be said to be by exhibiting hostile animus. He, therefore, submitted that the nature of possession of said excess land is bound to be held to be permissive in acceptance of ownership and never in denial. He next submitted that keeping in view the very conduct of the Defendants in contesting the litigation all through, the alternative submission of the learned counsel for the Appellants as regards the settlement of the suit land or any part thereof as an equitable measure, in the facts and circumstances of the case, is not Page 9 of 14 RSA No.29 of 2023