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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.141 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Manoranjan Mohapatra Santwana Mohanta and others -versus- …. …. Appellant Respondents Appeared in this case:- For Appellant For Respondents Appeared in this case:- : : Mr. C.A. Rao, Senior Advocate assisted by Mr. S.K. Behera, Advocate None CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 02.12.2024 / date of judgment : 18.12.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellant in this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.36 of 1987 and respondent before the 1st appellate court in the 1st appeal vide T.A. No.22/32 of 1994/1993. 3. The respondents in this 2nd appeal were the defendants before the
Legal Reasoning
trial court in the suit vide T.S. No.36 of 1987 and appellants before the 1st appellate court in the 1st appeal vide T.A. No.22/32 of 1994/1993. The suit of the plaintiff(appellant in this 2nd appeal) against the defendants(respondents in this 2nd appeal) vide T.S. No.36 of 1987 was a suit for declaration, permanent injunction, in alternative, recovery of possession, if the plaintiff is found to be dispossessed. 4. The suit land is Plot No.132/1200 under Khata No.123 Ac.0.l8 decimials in Mouza Janardanpur, which corresponds to C.S. Plot No.44/310/505 under Sabik Khata No.73 described in Schedule-„A‟ of the plaint. According to the plaintiff, One Gora Behera was the original owner of the suit plot. Father of the plaintiff purchased the same from Gora Behera through a plain paper unregistered sale deed dated 11.08.1961 for Rs.90/- and possessed the same as the owner thereof since the date of purchase after getting delivery of possession from Gora Behera. After the death of the father of the plaintiff, i.e., Gora Behera, he (plaintiff) being his successor became the owner of the same and possessed the same and accordingly, the plaintiff is in possession over the suit property as the exclusive owner thereof. The defendant no.1 has her own land to the South of the suit properties, but, the defendant no.1 Page 2 of 17 has no manner of right, title and interest over the suit properties. The defendant nos.1 and 2 are the wife and husband respectively. On 05.05.1987, the defendant nos.1 and 2 being associated with other defendants tried to destroy the demarcating ridge between the suit plot and the plot of the defendant no.1, to which, plaintiff protested, still then, the defendants started construction encroaching some Southern portion of the suit land through Mankada stones. So, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.36 of 1987 against the defendants praying for declaration and permanent injunction over the suit properties, in alternative, recovery of possession, to which, the defendants contested by filing their joint written statement denying the averments made by the plaintiff in his plaint taking their specific stands therein that, the father of the plaintiff has not purchased the suit properties from Gora Behera on dated 11.08.1961 and he (plaintiff) is also not in possession over the same, because, their vender Gora Behera was also not in possession over the suit properties, for which, the question of giving delivery of possession to the suit properties in favour of the plaintiff by Gora Behera does not arise. The further case of the defendants was that, the defendant no.1 has purchased a piece of land to the South of the suit properties measuring Ac.0.14 decimals from Jaladhar Bag, (father of the defendant nos.3 to 5) Page 3 of 17 through registered sale deed dated 09.10.1985 for a consideration amount of Rs.15,000/-. The father of the plaintiff was an Amin and the mother of Gora Behera was working as a maid servant in the house of the plaintiff‟s father. The plaintiff‟s father, by influencing the revenue authorities got Ac.0.14 decimals of land settled in the name of Gora Behera along with other lands. The father of the plaintiff has managed to create the sale deed dated 11.08.1961 in respect of the suit properties without the knowledge of Gora Behera and without payment of any consideration amount. Then, taking the settlement authorities into his confidence, the plaintiff has managed to record the suit land in his name erroneously, even through, he(plaintiff) has no interest on the same. The plaintiff‟s title, if any, over the suit properties has already been extinguished by the long uninterrupted possession of the venders of the defendant no.1, i.e., defendant nos.3 to 5 over the said suit properties. As such, the defendant nos.3 to 5 have acquired their title over the suit properties through adverse possession, in which, the plaintiff has no interest. For which, the suit of the plaintiff is liable to be dismissed against the defendants. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties altogether eight numbers of issues were framed by the trial court and the said issues are:- Page 4 of 17 I S S U E S Has the plaintiff got any cause of action? Is the suit maintainable? Is the suit barred by law of limitation? Is the suit barred by law of adverse possession? i. ii. iii. iv. v. Whether the plaintiff and his alleged vendor Gora Behera is in possession over the suit land at any point of time? Did the defendant nos.3 to 5 acquire title over „A‟ Schedule land by adverse possession? vi. vii. Was there any sale of the suit land by Gora Behera to the plaintiff by an unregistered sale deed? If so, is it valid and binding on the defendants? viii. To what relief or relief(s) the plaintiff is entitled? 7. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants, he (plaintiff) examined three witnesses from his side including him as P.W.3 and relied upon the documents vide Exts.1 to 4 on his behalf. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants also examined three witnesses from their side including defendant no.2 as D.W.3 and exhibited a series of documents from their side vide Exts.A to J. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendants. 9. Basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiff and against the defendants, the trial court declared the right, title and interest of the plaintiff over the suit Page 5 of 17 properties described in Schedule-„A‟ and injuncted the defendants permanently from entering into the suit properties and from interfering with the possession of the plaintiff over the same giving liberty to the plaintiff to get recovery of possession of any portion of the suit land, if found to be dispossessed in the meantime, as per its judgment and decree dated 09. 04.1993 and 22.04.1993 respectively assigning the reasons that, when the D.W.3(defendant no.2) has categorically stated in his evidence that, they(defendants) have not encroached the suit land in any manner and they(defendants) have no right, title, interest and possession over the suit plot No.505 and the suit Plot No.505 belong to the plaintiff and they(defendants) have never encroached the suit land by removing the demarcated ridge and when Ext.B (sale deed) shows that, the defendant no.1 has purchased plot No.44/310/503 from Jaladhara Bag and the suit plot is Plot No.44/310/505 is other than the purchased plot of the defendant and the father of the plaintiff has purchased the suit plot from Gora Behera through unregistered sale deed dated 11.08.1961 vide Ext.1 for Rs.90/- and accordingly, the father of the plaintiff was the owner of the suit plot and after the death of the father of the plaintiff, he(plaintiff) is the owner and in possession of the suit plot and the Hal RoR of the suit plot vide Ext.2 is in the name of the plaintiff and the defendant nos.3 to 5 have never acquired any title over the suit plot through adverse Page 6 of 17 possession, for which, the defendants have not any interest or possession over the suit plot including the suit properties. 10. On being aggrieved with the aforesaid judgment and decree dated 09.04.1993 and 22.04.1993 respectively passed in T.S. No.36 of 1987 by the trial court in favour of the plaintiff and against the defendants, they(defendants) challenged the same by preferring the 1st appeal vide T.A. No.22/32 of 1994/1993 being the appellants against the plaintiff arraying the plaintiff as respondent after taking several grounds in their appeal memo. 11. After hearing from both the sides, the 1st appellate court allowed that 1st appeal vide T.A. No.22/32 of 1994/1993 of the defendants on contest against the plaintiff as per its judgment and decree dated 25.02.1995 and 10.03.1995 respectively and set aside the judgment and decree dated 09.04.1993 and 22.04.1993 respectively passed by the trial court in T.S. No.36 of 1987 in favour of the plaintiff and dismissed the suit of the plaintiff vide T.S. No.36 of 1987 on contest assigning the reasons that, the plaintiff has not been able to establish his title over the suit properties described in Schedule-„A‟ of the plaint, because, the plaintiff has not become able to establish due execution of sale deed dated 11.08.1961 vide Ext.1 in his favour in respect of the suit land and as such, the plaintiff has failed to establish his title and possession over Page 7 of 17 the suit properties, for which, the plaintiff is not entitled for any relief, as prayed for by him against the defendants. 12. On being aggrieved with the aforesaid judgment and decree dated 25.02.1995 and 10.03.1995 respectively passed by the 1st appellate court in T.A. No.22/32 of 1994/1993 in favour of the defendants and against the plaintiff, he(plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants arraying them(defendants) as respondents. 13. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.:- (i) Whether the findings and observations made by the 1st appellate court in reversing the judgment and decree of the trial court on the ground of non-delivery of possession of the suit properties after execution of the sale deed vide Ext.1, the title of the suit properties was not passed from the vendor to the vendee of the said sale deed vide Ext.1? (ii) Whether the judgment and decree passed by the 1st appellate court in dismissing the suit of the plaintiff, when the RoR of the suit properties is in the name of the plaintiff and when the defendants have not disputed the said RoR of the suit properties in the name of the plaintiff is sustainable under law? 14. I have already heard only from the learned counsel for the appellant(plaintiff), as none appeared from the side of the respondents(defendants) to participate in the hearing of this 2nd appeal. Page 8 of 17 15. When, the above two formulated substantial questions of law are inter-linked having ample nexus with each other as per the pleadings of the parties, judgments and decrees passed by the trial court and the 1st appellate court, then, both the aforesaid formulated substantial questions of law are taken up together analogously for their discussions hereunder:- “The plaintiff has prayed for declaration of his title and permanent injunction in alternative recovery of possession in respect of the Schedule-„A‟ suit properties vide Plot No.132/1200 Ac.0.18 decimals under Khata No.123, corresponds to Sabik Plot No.44/310/505 under Sabik Khata No.73.” 16. It is the admitted case of the parties as per the pleadings and evidence that, the present RoR of the suit properties under Hal Khata No.123 vide Ext.2 stands exclusively in the name of the plaintiff. The previous Khata No.73 of the suit plot was recorded in the name of the vendor of the plaintiff, i.e., Gora Behera. 17. The defendants have not disputed the title and possession of the plaintiff over the suit properties in their evidence. Because, the defendant no.2 (husband of the defendant no.1) as D.W.3, has deposed in his evidence during the trial of the suit by stating that, “they (defendants) have not encroached the suit properties in any manner. They have no right, title, interest or possession over the suit properties, which belong to the plaintiff. They have never encroached the suit properties by removing its demarcating ridge. Defendant no.1 has purchased a separate piece of Page 9 of 17 land other than the suit land measuring an area Ac.0.14 decimals from Jaladhar Bag through registered sale deed vide Ext.B.” Accordingly, they (defendants) have admitted to the possession of the plaintiff over the suit properties stating through their above evidence that, they(defendants) have no claim over the suit properties, but, the defendant no.1 is the owner of a plot, which is other than the suit plot, to which, she(defendant no.1) has purchased from Jaladhar Bag. Ext.2 is the Hal RoR of the suit properties, which has been recorded exclusively in the name of the plaintiff. The defendant no.1 has purchased properties, those are situated to the adjacent South of the suit land from Jaladhar Bag through sale deed vide Ext.B. 18. The above pleadings and evidence of the parties is establishing that, the plaintiff is in possession over suit Sabik Plot No.44/310/505 and the defendant no.1 is in possession over its Southern side adjacent Plot No.44/310/503 and accordingly, the land of the defendant no.1, which is covered under the sale deed vide Ext.B has no nexus/connection with the suit plot. When the defendant no.1 is in possession of different plot other than the suit plot and when, the plaintiff is in possession over the suit Page 10 of 17 plot, then at this juncture, it is safely concluded that, the defendants have no interest over the suit properties. 19. On this aspect, propositions of law has already been clarified in the ratio of the following decisions:- In a case between Zarif Ahmad (D) through Lrs. & Anr. vrs. Mohd. Farooq : reported in 2015(II) CLR(S.C.)- 1126(Para nos.16 and 17), the Apex Court has held that, when the plaintiff establishing his possession over the suit Plot No.358 by oral and documentary evidence and when the defendant possessing Plot No.357, then, the decree of the trial in decreeing suit only in respect of the Plot No.358 does not suffer from any illegality. In a case between Kundan Lal & Anr. vrs. Kamruddin & Anr.: reported in 2017(4) CLR (S.C.)-256, 2017(4) CCC(S.C.)-504 in para-9—The Apex Court has held that, when the land allotted to the appellant has no connection with the suit land, then, the decree against the appellant for vacation of the suit land is proper. In a case between A. Subramanian & Anr. vrs. R. Pannerselvam : reported in 2021(I) CCC-155(S.C.)—The Apex Court has held that, when the plaintiff has proved his right over suit property, he is entitled for decree of injunction against the defendants. 20. The defendant nos.3 to 5 have also claimed their title over the suit properties through adverse possession stating in their pleadings that, the plaintiff had no title at any point of time over the suit properties. 21. It is the settled propositions of law that, the plea of adverse possession of the defendant or defendants against the plaintiff necessarily implies the admission of the title of the plaintiff over the suit properties, because, a party like the defendants in this suit/appeal at hand can claim Page 11 of 17 title through adverse possession over the suit properties as per law, when they admit the title of the plaintiff over the same. 22. On this aspect, the propositions of law has already been clarified by the Hon‟ble Courts in the ratio of the following decisions:- In the cases between Sultan and Ors. vrs. Kasturi and Ors. : reported in 2005(4) Civil law Times-378(P&H), Jagat Singh & Ors. vrs. Srikishan Dass & Ors. : reported in 2008(3) CCC- 173(P&H) Gurbax Singh(Dead) by Lrs. vrs. Karnail Singh : reported in 2008(4) CCC-239 (P&H)—It has been held that, “once a plea of adverse possession is raised by the defendant, it pre-supposes the title of the plaintiff over the suit land. further been held It has also the case between Pappayammal vrs. Palanisamy & Ors. : reported in 2005(3) CCC-167(Madras)—That, a party can plead adverse possession, only when, he admits that, another party has got title. in 23. Here, in this suit at hand, when, the defendant nos.3 to 5 have claimed title over suit properties through adverse possession and when, as per law, their such plea of adverse possession is their indirect admission to the title of the plaintiff over the suit properties and when admittedly, RoR of the suit properties vide Ext.2 is in the name of the plaintiff and when the defendant nos. 3 to 5 have not admitted the ownership of the plaintiff over the suit properties, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions of the Hon‟ble Courts, the plea of adverse possession raised by the defendant nos.3 to 5 has become inadmissible under law. Because, the defendants are not sure, who is the true owner of the suit properties. Page 12 of 17 For which, the question of their being in hostile possession with the owner of the suit properties would not arise. 24. On this aspect, in a case between T. Anjanappa & Ors. vrs. Somalingappa & Anr. : reported in 2006(II) CLR(S.C.)-472, it has been clarified by the Apex Court that, “If the defendants were not sure, who was the true owner of the suit properties, then, the question of their being in hostile possession would not arise. So, the claim of title through adverse possession raised by the defendants must fail.” 25. The aforesaid failure of the claim of the defendant nos.3 to 5 in establishing their title over the suit properties through adverse possession has indirectly established the title of the plaintiff on the same. The above conclusion finds support from the ratio of the decision of the Hon‟ble Courts in a case between Brahmani Devi vrs. Ratan Chand alias Shiv Kumar-618(H.P.) at Para No.39 that, when the plea of adverse possession taken by the defendant not proved, then, plaintiff being the owner of the suit land is entitled for the relief of possession. 26. As per the discussions and observations made above, when it is held that, the plaintiff is in possession over the suit properties described in Schedule-„A‟ under Hal Khata No.123, Plot No.132/1200 and the defendant no.1 is in possession over its Southern side adjacent plot and Page 13 of 17 when the defendants have no interest over the suit properties, then at this juncture, in view of the principles of law enunciated by the Apex Court in the ratio of the aforesaid decisions, the decree for declaration of title and permanent injunction passed by the trial court in favour of the plaintiff and against the defendants in respect of the suit properties described in Schedule-„A‟ cannot be held as erroneous. 27. When, it is held above that, the plaintiff is entitled to get the decree of declaration and permanent injunction against the defendants in respect of the suit properties, then at this juncture, the plaintiff is not entitled to get the other relief prayed by him, which was granted by the trial court that, the plaintiff is at liberty to get recovery of possession of any portion of the suit land, if found to be dispossessed in the meantime, through the process of court. Because, on the basis of the pleadings and evidence of the parties, the trial court is not sure, whether the defendants have taken the possession of any portion of the suit properties from the plaintiff, for which, the plaintiff cannot be entitled under law in this nature of imaginary un-executable relief granted by the trial court. So, the interference made by the 1st appellate court to the said particular portion of findings of the trial court cannot be held as unsustainable under law. Page 14 of 17 28. On the basis of the aforesaid findings and observations, when, the reliefs granted by the trial court, i.e., declaration of title and permanent injunction in favour of the plaintiff and against the defendants has become sustainable/acceptable under law and other part of the relief granted by the trial court as stated above has become unsustainable under law. For which, in setting aside the entire judgment and decree of the trial court by the 1st court is not sustainable under, because, the part of the decree passed by the trial court in favour of the plaintiff, i.e., decree for declaration of his title over the suit properties and decree for permanent injunction against the defendants are sustainable under law. 29. Therefore, there is some merit in the appeal of the appellant(plaintiff).The same must succeed in part. 30. In result, this 2nd appeal filed by the appellant(plaintiff) is allowed in part on merit. 31. The judgment and decree dated 25.02.1995 and 10.03.1995 respectively passed by the 1st appellate court in T.A. No.22/32 of 1994/1993 is set aside in part. The judgment and decree passed by the 1st appellate court in T.A. No.22/32 of 1994/1993 in setting aside to the part judgment and decree passed by the trial court in T.S. No.36 of 1987 in favour of the plaintiff, Page 15 of 17 i.e., the declaration of right, title and interest of the plaintiff over the suit land described in Schedule-„A‟ of the plaint and the decree for permanent injunction in favour of the plaintiff and against the defendants in respect of the suit land described in Schedule-„A‟ are set aside. The judgment and decree passed by the 1st appellate court in T.A. No.22/32 of 1994/1993 in setting aside the part judgment and decree passed by the trial court in T.S. No.36 of 1987 giving liberty to the plaintiff to get recovery of possession of any portion of suit land, if found to be dispossessed in the meantime is confirmed. 32. The judgment and decree passed by the trial court on dated 09.04.1993 and 22.04.1993 respectively concerning declaration of right, title and interest of the plaintiff over the suit properties described in Schedule-„A‟ of the plaint and the decree of permanent injunction against the defendants restraining them(defendants) from entering into the suit properties and from interfering into the possession of the plaintiff over the suit properties described in Schedule-„A‟ of the plaint in any manner are confirmed. 33. The judgment and decree passed by the trial court that, the plaintiff is at liberty to get recovery of possession of any portion of the suit land, if, found to be dispossessed in the meantime through process of court is set aside. Page 16 of 17 34. The suit be and the same vide T.S. No.36 of 1987 filed by the plaintiff is decreed in part on contest against the defendants, but without cost. The right, title and interest of the plaintiff over the suit properties described in Schedule-„A‟ of the plaint is declared. The defendants are permanently injuncted from entering into or from interfering with the possession of the plaintiff over the suit properties described in Schedule- „A‟. The prayer of the plaintiff for recovery of possession of the suit properties is refused. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 18th of December, 2024/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 19-Dec-2024 17:31:03 Page 17 of 17