Orissa High Court
Afr Kalia Karna vs Kaikei Sethi & Others on 28 June, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 484 of 2005
[In the matter of an appeal under Section 100 of the Code of
Civil Procedure, 1908.
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AFR Kalia Karna ...... Appellant
-Versus-
Kaikei Sethi & others ..... Respondents
Advocate(s) appeared in this case :-
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For Appellants : Mr. S.P.Mishra, Advocate
For Respondents: Mr. P.K.Nayak, Advocate
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CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28th June, 2024 SASHIKANTA MISHRA, J. This is an appeal filed against a confirming judgment passed by the learned Additional District Judge, Boudh in RFA No. 12 of 2004 on 30.07.2005 followed by decree whereby the judgment passed by learned Civil Judge, Junior Division, Kantamal on 25.09.2004 in T.S. No. 06 of 2002 was confirmed. The plaintiff of the above suit is the appellant herein.
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2. For convenience, the parties are referred to as per their respective status in the Court below.
3. The aforementioned suit was filed by the plaintiff for declaration of his title over the suit land and for recovery of possession. The plaintiff's case is that the suit land appertaining to Hal plot No. 908 under Khata No. 224 situate in village Digi measuring Ac. 0.04 decimals, is his ancestral property and was partitioned among the co-sharers after death of his father, Daitari Karna. He claims to have been allotted an area measuring Ac. 11.25 decimals in the family partition. There is a dilapidated house over the suit land in which the original defendant No.1 (Sasi Muduli) and defendant No.2 remained in permissive possession after making necessary repairs. This was on 18.04.1986. Defendant No.1 had agreed to vacate the house whenever the plaintiff wanted. On 11.05.1996, the plaintiff asked the defendants to vacate the suit house as he wanted to make construction for his own Page 2 of 12 accommodation. Since the defendants did not vacate the suit house, he filed the suit in question.
4. The defendants contested the suit by filing written statement inter alia stating that the suit land is a portion of Sabik Khata No. 58 corresponding to Plot Nos. 716 and 717 being recorded in the name of the father of the plaintiff namely, Daitari Karna. It is claimed that about 40 years ago, said Daitari Karna had sold the entire land to the husband of defendant No.1 namely, D.Muduli for a consideration of Rs. 90/- by way of oral sale and since then defendant No.1 and her husband have been possessing the suit land and constructed residential house thereon. Such possession is to the knowledge of the plaintiff and other villagers. The defendants have also been paying rent to Daitari Karna during his lifetime and after him, through Padma Charan Karna, the elder brother of the plaintiff. The suit land was sold in the year 1957 and since then the defendants are in continuous and peaceful possession. They have thus perfected their right title and interest over the suit land because of Page 3 of 12 such long standing possession. It is alleged that the plaintiff by colluding with the settlement officials managed to get the suit land recorded in his name in the ROR. The plaintiff's claim of acquisition of the suit land through family partition was specifically denied.
5. On the rival pleadings, the trial court framed the following issues;
I) Whether the suit is maintainable?
II) Whether the suit is under valued?
III) Whether there is any cause of action for the plaintiff to bring the suit against the defendants?
IV) Has the plaintiff any right, title and interest over the suit land? V) Whether the defendants have perfected their right, title & interest over the suit land by way of their long standing possession? VI) To what other reliefs the plaintiff is entitled?
6. Issue No.4 being the main issue was taken up for consideration at the outset. The trial Court after examining the oral and documentary evidence found that the Hal ROR (Ext.1) stands recorded in the name of plaintiff but the Sabik ROR (Ext. B) of the year 1963 is recorded in the name of all the brothers of the plaintiff. The plaintiff did not adduce any cogent evidence of partition between him and his brothers. Since the ROR does not create or extinguish title, the trial Court held that the same cannot be treated as Page 4 of 12 proof of right, title and interest of the plaintiff over the suit land.
On issue No.5, the trial Court held that the defendants have been possessing the suit land since 40 years from the date of purchase from the father of the plaintiff. They have also been paying rent, as evident from the rent receipts marked Ext. C and C/1, to Padma Charan Karna. Moreover, the plaintiff has not taken any step to vacate the defendants from the suit land. As such, the defendants have perfected their right, title and interest over the suit land by their long- standing possession. In view of the findings on the main issues as stated above, the remaining issues were answered accordingly and the suit was dismissed by holding that the plaintiff has no manner of right, title, interest and possession of the suit land.
7. Being dissatisfied, the plaintiff carried the matter in appeal to the District Court, mainly raising the ground that despite overwhelming evidence showing his title over the suit land, the trial Court committed an error in dismissing the suit and in the absence of Page 5 of 12 any cogent evidence, the trial Court wrongly held that the defendants have perfected their title over the suit land. The First Appellate Court held that the ROR and rent receipts are evidence of possession and do not create title nor extinguish the same. The presumption of correctness of the ROR is a rebuttable one. Coming to the facts of the case, the First Appellate Court held that though the plaintiff claims to have got the suit land in a family partition, he did not adduce definite evidence in support thereof. In the absence of the evidence of partition, identity of coparceners, exent of property put to partition, details of allocation of shares to each of the coparceners, the claim of title of the plaintiff on the basis of ROR cannot be accepted. Moreover, in view of the admitted position that the defendants are in possession of the suit land, the presumption of correctness of the ROR is thoroughly rebutted. The First Appellate Court therefore, held that the trial Court rightly dismissed the suit. However, the finding of the trial Court regarding perfection of title by the defendants by way of adverse possession was Page 6 of 12 negatived on the ground that the same runs contrary to the defendants' own case of having purchased the suit land through oral sale. The appeal was thus, dismissed and the judgment and decree of the trial Court was confirmed.
8. Feeling further aggrieved, the plaintiff has filed the present appeal, which has been admitted on the following substantial questions of law:
"1. Whether the learned courts below are justified in saying that plaintiff has failed to prove title over the suit land when the plaintiff's suit is based on antecedent title and there is no dispute over the title by the defendant and when defendant has taken a plea of oral sale with alternative plea of adverse possession?
2. Whether the learned courts below have committed an error of law by putting the onus on the plaintiff to disprove the defendant case when defendant has taken a plea or oral sale and alternative plea of adverse possession contrary to the plea of the plaintiff of permissive possession the onus lies on the defendants to establish the plea of oral sale or adverse possession?
3. Whether the learned lower appellate Court is justified in not accepting the plea of permissive possession directing for eviction of the defendants when plaintiff's title is admitted and substantiated by Ext.1, i.e., ROR where the plaintiff's name is recorded exclusively and defendants have failed to prove their title either by sale or adverse possession? "
9. Heard Mr. S.P. Mishra, learned Senior Counsel with Mr. A.K. Mohapatra for the plaintiff-appellant and Mr. P.K.Nayak, learned counsel appearing for the defendant-respondents.
10. Learned Senior Counsel Mr. Mishra contends that once the defendant claims to have purchased the property by way of oral sale, he impliedly admits the Page 7 of 12 title of the owner of the land, which in this case is the plaintiff's father at the relevant time. Secondly, when the defendant alternatively claims to have perfected his title because of his long possession (adverse possession), it also implies that he admits the title of the true owner, that is, the plaintiff. Neither the oral sale nor adverse possession could be proved by the defendants. Under such circumstances and in view of the admission of the plaintiff's antecedent title over the suit land, the suit could not have been dismissed. Mr. Mishra further argues that the possession of the defendant can only be treated as permissive in nature.
11. Per contra, Mr. P.K.Nayak would argue that the defendants' case is entirely based on oral sale and not adverse possession. Their long possession is otherwise admitted by the plaintiff. Since the plaintiff could not prove his claim of being allotted with the suit land in family partition, both the Courts below rightly rejected his claim as such. Mr. Nayak further argues that mere recording of the name of the plaintiff in the Hal ROR cannot be treated as proof of his title particularly, Page 8 of 12 when he claims to have received the property in a family partition, which was never proved.
12. After considering the rival contentions and on examination of the facts of the case and evidence laid by the parties, this Court finds that admittedly, the suit land stands recorded in the name of the plaintiff in the Hal ROR marked Ext.1. It is not disputed that the suit land forms part of the land recorded in the name of the plaintiff and his brothers. It is trite law that entries in the ROR carry a presumption of correctness unless rebutted by cogent evidence. The First Appellate Court has held that long possession of the defendants over the suit land rebuts the presumption regarding title of the plaintiff over the suit land. This is an entirely unacceptable proposition for the reason that the defendants at least admit the antecedent title of the plaintiff. Their possession over the suit land can either be permissive or adverse in nature. The First Appellate Court has held, and rightly so, that the plea of adverse possession of the defendants has no legs to stand. Therefore, the possession of the defendants can only be Page 9 of 12 treated as permissive in nature. So, this Court fails to understand as to how merely because of possession of the suit land by the defendants, the presumption of correctness of the entries in the ROR could be 'thoroughly' rebutted as held by the First Appellate Court. It must be kept in mind that defendants are not members of the family. Moreover, there is nothing on record to show that the ROR was wrongly prepared or was a product of manipulation by the plaintiff. In the absence of any such evidence, the ROR has to be presumed be correct.
13. Even otherwise, the defendants are strangers to the family. Unless they come up with a specific case questioning the claim of plaintiff of having been allotted the suit land in a family partition, mere denial in the written statement or disputing the plaint averments in this regard cannot demolish the claim of the plaintiff in view of the recording of the suit land in his name in the Hal ROR. Both the Courts below appear to have wrongly forayed into the question of partition at the instance of an outsider, who Page 10 of 12 incidentally, does not dispute the plaintiff's antecedent title. As regards the claim of the defendants, there being no independent appeal made in the finding rendered by the First Appellate Court, this Court would ordinarily not be inclined to go into such question. However, the question of possession of the defendants being intricately linked to the claim of the plaintiff, this Court has considered the same only to the limited extent of examining whether the same could have any bearing on the ultimate outcome of the suit. This Court finds that the claim of the defendants is contradictory inasmuch as on one hand, they claim to have purchased the suit land from the plaintiff's father by way of oral sale and yet at the same time, the plea of adverse possession is advanced. Both the pleas are mutually contradictory and therefore, cannot be accepted. Even accepting the plea of adverse possession, it would be nothing but an admission of the title of the plaintiff over the suit land as without admitting the title they obviously could not have staked claim of title through adverse possession. In any event, Page 11 of 12 this Court also finds that the defendants have taken contradictory pleas both of which could not be proved. In such view of the matter, there is no way by which the title of the plaintiff could be questioned.
14. Thus, from a conceptus of the discussion made hereinbefore on facts and the law relevant to the case, this Court finds that both the Courts below have committed manifest error in rejecting the claim of the title of the plaintiff over the suit land. The impugned judgments therefore, warrant interference.
15. In the result, the appeal succeeds and is therefore, allowed. The impugned judgments are set aside. The suit filed by the plaintiff is decreed by declaring his right, title and interest over the suit land. Further, the defendants are directed to hand over vacant possession of the suit land to the plaintiff within three months failing which it shall be open to the plaintiff to enforce the decree in accordance with law. Parties shall bear their own costs.
Signature Not Verified
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Digitally SignedSigned by: DEEPAK PARIDA Reason: Authentication Location: OHc,Cuttack Sashikanta Mishra, Date: 02-Jul-2024 19:44:47 Judge Deepak Page 12 of 12