The High Court · 2023
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.208 OF 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 31st March 2023 and 10th April 2023 respectively passed by the learned District Judge, Mayurbhanj-Baripada in R.F.A. No.20 of 2022 confirming the judgment and decree dated 17th February 2022 and 28th February 2022 respectively passed by the learned Civil Judge, (Junior Division), Baripada in C. S. Case No.20 of 2015. ---- Sengel Singh C.R. Soren …. Appellant -versus- Rangalata Mahanta & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): =========================================================== For Appellant - Mr.H.N. Tripathy, Advocate For Respondents - Mr.S. Kar, Advocate CORAM: MR. JUSTICE D.DASH DATE OF HEARING:23.02.2024:: DATE OF JUDGMENT: 01.03.2024 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged the judgment and decree dated 31st March 2023 and R.S.A. No.208 of 2023 Page 1 of 11 {{ 2 }} 10th April 2023 respectively passed by the learned District Judge, Mayurbhanj-Baripada in R.F.A. No.20 of 2022.
Facts
The Respondent as the Plaintiff had filed the suit (Civil Suit No.20 of 2015 in the Court of Civil Judge, (Junior Division, Baripada. The suit was for eviction of the Appellant (Defendant) and delivery of vacant possession of the same by demolishing the house standing over it, claiming further relief of permanent injunction as against the Appellant (Defendant). The suit stood decreed. Therefore, the Appellant being the aggrieved Defendant had carried the Appeal under section-96 of the Code which has also been dismissed. So the present Second Appeal is at the instance of the Appellant, who being the Defendant has suffered from the judgments and decrees passed by 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. Plaintiff’s case is that the suit land described in Schedule-B of the plaint stood originally recorded in the name of Laxmikanta Mahanta, S/o. Goura Mohan Mahant, who have two plots i.e. Plot No.315 and 316 appertaining to Khata No.367 measuring Ac.0.13 decimals and Ac.0.060 decimals respectively; in total coming to Page 2 of 11 R.S.A. No.208 of 2023 {{ 3 }} Ac.0.19 decimals. Laxmikanta died leaving behind his two sons namely, Gogendra and Khirod. Jogendra survived by two sons namely, Radha Shyam and Dhrubendra as well as three daughters namely, Taramani, Rabon and Sabitri. Upon death of Laxmikanta, the entire land under Khata No.357 was partitioned between Khirod and Radha Shyam by a decree passed by the learned Civil Judge (Senior Division), Baripada in civil Suit No.304 of 2005. Radha Shyam, the husband of the Plaintiff No.1 had filed the suit for partition and that was finally decreed on 2nd December 2008. In the final decree, the suit property has fallen to the share of Radha Shyam and on that basis, Record of Right in respect of the suit land has been prepared in the name of Radha Shyam under separate Khata No.331/831 assigned with Plot No.316/1771 measuring Ac.0.45 decimals. The Plaintiffs therefore as the legal heirs and successors of Radha Shyam, claim that they are the owners of the property. It is stated that the Defendant without any right, title, interest and by showing force entered over the suit land some time in the month of January 2013 and started possessing the suit land. The Defendant also forcibly constructed a pucca building over the entire suit land without any lawful authority and without getting the plan sanctioned by the local authority as required under law. The Plaintiff after having come to know about illegal possession of the suit land by the Defendant, filed an application Page 3 of 11 R.S.A. No.208 of 2023 {{ 4 }} before the Tahasildar for demarcation of the suit land. The Tahasildar passed an order for demarcation. But the Defendant remained absent and closed the gate so as to stop the entry. The Plaintiffs thereafter, served a notice upon the Defendant through their Advocate and finally filed the suit. 4. The Defendant in his written statement while traversing the plaint averments submitted that he is in possession of the suit land for more than fifty years since the time of his father. The suit land is adjacent to his paternal homestead land. It is stated that the suit land was not used by Radha Shyam and therefore, in the year 1965 Radha Shyam transferred the suit land in favour of the father of the Defendant on receipt of consideration and confirmed the possession in favour of the father of the Defendant. From that time onwards, the father of the Defendant has enjoyed the suit land and after his death, the Defendant is possessing the suit land and enjoying the same to the knowledge of the Plaintiff and it was also to the knowledge of the predecessors-in-interest. In the year 1985, the Defendant was allowed to construct a residential house over the suit land and his ancestral homestead land. It is stated that one house of 30 years old is standing over the suit land and the Defendant has been paying holding tax, electricity charges and the land revenue. The possession of the suit land by the Defendant is stated to be open, peaceful, and continuous without any R.S.A. No.208 of 2023 Page 4 of 11 {{ 5 }} obstruction from any quarter at any point of time; and it is stated that the period of such possession is much more than the period prescribed for acquisition of title over the immovable property by way of adverse possession. The Defendant claims to have perfected the title over the suit land by way of adverse possession. It is accordingly stated that the Plaintiffs title over the suit land stood extinguished since long. It is, thus, stated that the suit is liable to be dismissed. 5. On the above rival pleadings, the Trial Court framed as many as eight (8) issues. Upen examination of evidence, both oral and documentary and their assessment, the Trial Court has arrived at a finding that the Plaintiffs are having the title over the suit land and the Defendant has not been able to establish all those factual settings to hold that he has perfected title over the suit land by way of adverse possession so as to conclude that the title of the Plaintiffs over the suit land stood extinguished. The above findings have led the Trial Court to decree the suit. 6. The Defendant being aggrieved by the said judgment and decree, carried the First Appeal. The First Appellate Court upon independent examination of evidence at its level and their evaluation, keeping in view the position of law holding the field has concurred with the finding of the Trial Court in rejecting R.S.A. No.208 of 2023 Page 5 of 11 {{ 6 }} contentions raised by the Defendant for annulment of the said judgment an decree passed by the Trial Court. 7. The Appeal has been admitted to answer the following substantial questions of law:- “Whether the Courts below with the available evidence on record keeping the rival pleadings in the backdrop and the settled position of law holding the filed in mind ought to have held that the Appellant (Defendant) has perfected that the title of the suit land by way of adverse position?”
Legal Reasoning
contended that it is permissible under law, for this Court in seisin of the Second Appeal to disturb the same and even though, it can take a view of his own, that cannot be substituted. Referring to the pleadings in the written statement, he submitted that the pleas taken by the Defendant are prevaricating and contradictory to one another; when it is stated that property was purchased on payment of valuable consideration, the same is not proved through evidence and next it is said that by virtue of possession since the time of purchase, the Defendant had acquired title by way of adverse possession. With such view of prevaricating pleas even though the possession of the Defendant over the suit land is found to be stretching over the long period that would not enure to the benefit of the Defendant to establish his case of acquisition of title over the suit land by way of adverse possession. R.S.A. No.208 of 2023 Page 7 of 11 {{ 8 }} 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 11. The antecedent title of Radha Shyam Mahanta over the suit land is not in dispute. The Plaintiffs are the legal heirs and successors of said Radha Shyam. The very case of the Defendant is that he is in possession of the suit land for more than fifty (50) years since the time of his father. It is also stated that the suit land is adjacent to the paternal homestead land of the Defendant and there is no road to the suit land from the main road for ingress and egress. The location of the suit land is in between the land of the Defendant. It is stated that in the written statement as the suit land was not used by Radha Shyam, sometime in the year 1965, and he decided to transfer the same to the father of the Defendant and received consideration and confirmed the possession. It is stated that since then, the Defendant’s father was enjoying the suit land till his death and thereafter the Defendant is enjoying the same to the knowledge of all concerned. The sale of the property in question by Radha Shyam to the father of the Defendant is not proved through any document. Nothing is stated about the consideration paid by the father of the Defendant to Radha Shyam. When actually, the sale had taken place is also not stated. So, the Defendant having taken the plea of purchase of the suit land by his Page 8 of 11 R.S.A. No.208 of 2023 {{ 9 }} father has utterly failed to establish the same. There is absolutely no explanation that why such sale transaction was not evidenced by any document whatsoever. The second limb of the case of the Defendant is that in the year 1985, he was allowed to construct residential house over the suit land along with his ancestral homestead. It is also stated that the house of 30 years old is standing over the suit land and the Defendant is paying the holding tax, electricity bills and land revenue etc. When it is said that the Defendant was allowed to construct the residential house, it is not stated as to who gave such permission to the Defendant in the year 1985. The pleading on the above score is totally evasive, no date is stated nor even the month. Next it is stated that for such long possession over the suit land by the Defendant from the time of his father, he has acquired title over the same by way of adverse possession. 12. Law is well settled that mere long possession of the immovable property by a possessor would not enure to his benefit in establishing the case/claim as to perfection of the title over the said land by way of adverse possession. As per settled position of law, the classical requirements for acquisition of title by way of adverse possession is nec vi, nec clam, nec precario. The possessor must show his possession as adequate in continuity, in publicity all through, was by assertion of exorbition of hostile animus, denying R.S.A. No.208 of 2023 Page 9 of 11 {{ 10 }} title of the true owner and claiming the same unto himself/herself and upward of the period as prescribed in law. It is the settled position of law that when a claim of adverse possession is laid, the burden of proof lies on the possessor who by virtue of her / his possession claims to have acquired the title over the property by adverse possession in specifically pleading the facts on the above score through clear, cogent and acceptable evidence. All these ingredients appear to be not been pleaded specifically in the written statement nor the evidence let in by the Defendant satisfies all such requirements. The pleas taken by the Defendant to have purchased and the acquisition of title by way of adverse possession, contradicts one another. The, law relating to the acquisition of title over the immovable property by the possessor is that the possession must commence with wrong and mature with right. When it is said that the Defendant’s father had purchased the property, it is certain that the entry to the possession of the suit land was not wrongful but lawful. So, as the Defendant has failed to prove his case of purchase, he cannot bank upon the plea of acquisition of title by way of adverse possession as both fundamentally opposed to one another. 13. In the wake of aforesaid discussion and reasons, the substantial question of law is answered in favour of the Plaintiffs R.S.A. No.208 of 2023 Page 10 of 11 {{ 11 }} which leads to confirm the judgments and decrees passed by the Trial Court as well as the First Appellate Court. 14. However, before parting, since the Defendant has pleaded to have put up the construction over the suit land and using it for residential purpose with the construction standing over his own homestead land which adjoins the suit lands in the interest of justice, the Defendant is directed to deliver vacant possession of the suit land by removing all such structures standing over the same on or before the expiry of 31st day of August, 2024; failing which it would invite legal consequences for violation of the directions of this Court and in that event the matter would be viewed seriously. 15. With the above observation, the Appeal stands disposed of. There shall be no order as to cost. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 05-Mar-2024 12:19:03 R.S.A. No.208 of 2023 Page 11 of 11
Arguments
8. Mr. H.N. Tripathy, learned Counsel for the Appellant submitted that with the overwhelming evidence as regards open, peaceful and continuous possession of the suit land by the Defendant from the time of his father, especially, by putting construction of permanent nature over the same, the Courts below ought to have presumed that the same was to the knowledge of the Plaintiffs and the whole world and in view of the same, the possession of the suit land by the Defendant from the time of his father as its owner and in exercise of all the right of ownership over the same also ought to have been presumed. He, therefore, submitted that when the Defendant admits the title of the predecessor-in-interest of the Plaintiffs to have been there, when his father entered into possession as by denying the same; he remained in possession for all these long years, the Courts below R.S.A. No.208 of 2023 Page 6 of 11 {{ 7 }} ought to have declared that the Defendant has acquired right over the suit land by way of adverse possession. 9. Mr. S. Kar, learned Counsel for the Respondent submitted all in favour of the concurrent findings returned by the Trial Court as well as the First Appellate Court to the effect that the Defendant has failed to establish his case of acquisition of right over the suit land by way of adverse possession. According to him, there surfaces absolutely no such perversity therein nor it is seen that the said finding is with erroneous appreciation of evidence. So, he