Bidika Rama Krishna vs Madangi Gouri Sankar
2021 Latest Caselaw 9011 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                        R.S.A. No.472 of 2015
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 28.09.2015 and
09.10.2015 respectively passed by the learned District Judge, Rayagada
in R.F.A. No.6 of 2012 setting aside the judgment and decree dated
25.02.2012 and 07.03.2012 respectively passed by the learned Civil
Judge (Senior Division), Rayagada, in C.S. No.72 of 2010.

     Bidika Rama Krishna                   ....             Appellant

                                -versus-

     Madangi Gouri Sankar                  ....           Respondent

Appeared in this case by Hybrid Arrangement Arrangement (Virtual/Physical Mode):

      For Appellant      -     M/s.Sanjib Bohanty,
                               B.Biswal and S.C. Mohanty
      For Respondent     -     M/s.J.R. Dash, K.L.Dash
                               S.C. Samal, N. Sahoo and
                               N.Dash
CORAM:
MR. JUSTICE D.DASH

Date of Hearing : 23.08.2020 : Date of Judgment :27.08.2021

D. Dash, J

1. The Appellant by filing this Second Appeal filed under Section 100 of the Civil Procedure Code (for short, 'the Code') has assailed the judgment and decree dated 28.09.2015 and 09.10.2015 respectively passed by the learned District Judge, Rayagada in R.F.A. No.6 of 2012.

By the above, the First Appeal filed under section 96 of the Code has been allowed and the judgment and decree dated 25.02.2012 and 07.03.2012 respectively passed by the learned Civil Judge (Senior Division), Rayagada, in C.S. No.72 of 2010 in dismissing the Suit filed by

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the Appellant therein as the Plaintiff have been set aside and accordingly, the Suit filed by the said Appellant as Plaintiff has been decreed granting all the reliefs claimed therein.

The unsuccessful Defendant, who has thus suffered from the judgment and decree passed by the First Appellate Court by way of reversal of the judgment and decree passed by the Trial Court, has preferred this Second Appeal.

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. The subject matter of the Suit laid by the Plaintiff is the land on the northern portion of plot no.260/387 measuring Ac.0.07 cents under khata no.62/36 in Mouza-Tumbiguda, which measures 16.5 ft (on the east-west) and (88 ft on the north-south). It is stated that during the minority of the Plaintiff, his father had purchased said land from one Majhi Adinarayana for a consideration of Rs.90/-, which was then under khata no.15 assigned with plot no.260. The purchase is said to have been made on 21.06.1961 and it was evidenced by unregistered document of sale whose certified coy is Ext.1. It is stated that pursuant to the sale, the vendor has delivered the possession of the land to the father of the Plaintiff. On the same day, the elder brother of the Plaintiff, namely, Krishna also purchased equal extent of land from the same vendor to the adjacent east. The Plaintiff claims to have been in possession of the land since the time of purchase and to have mutated the same in his favour in Mutation Case No.131 of 1966 which was then assigned with plot no.260/387.

It is pertinent to state here that the certified copy of unregistered document in support of the said purchase of the suit land has been // 3 //

admitted as secondary evidence and marked as Ext.1 whereas the mutation application and order in the said mutation case are Ext.2 and 3 respectively. The final record of right prepared in the name of the Plaintiff has been admitted in evidence and marked as Ext.4. In the year 1968, the father of the Plaintiff died and the Plaintiff inherited to all this properties as his sole successor since his elder brother Krishna predeceased his father. The Plaintiff's further case is that his father used to grow vegetable over the suit land and the Plaintiff had also stayed for some days in a hut built over the same before he shifted to Ram Krishna Nagar, Rayagada in the year 1980 when he got the job in the Rayagada Municipality. In course of time, the area came within the jurisdiction of the Municipality and then the suit land under plot no.260/387 got divided into two parts because of laying of the municipal road from Rayagada to Tumbiguda. Now, the land lying on the northern part of the road is the said land. It is stated that the land is lying vacant and as the parents of the Defendant suddenly started put up a thatched house over a small portion of the suit land, the Plaintiff issued notice on 20.02.2008 asking them to vacate. However, astonishingly reply came that the father of the Defendant had constructed the house on his own and has been paying holding tax and electricity dues payable for the connection taken to the for more than thirty years and thus a claim over it was laid that he has the title and possession over the suit land. It is also stated that the municipality holding no.11/263 has been assigned to the said house which had come into existence in the year 1994-95. The Plaintiff then filed an application under section 3(A) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (hereinafter called as "Regulation 2 of 1956'') before the Sub-Collector, Rayagada. It was numbered as OSATIP Case No.1 of 2009. The prayer was for restoration of the land. The Defendant's took the same plea in the // 4 //

objection filed therein. The case was, however, dropped by the Competent Authority as the dispute was not found to be so cognizable since they all belong to the Scheduled Tribe Community. The mother of the Defendant is said to have expired on 25.09.2010. The Plaintiff under the circumstance filed the Suit seeking a declaration of his right, title and interest over the suit land with further prayer of recovery possession of the same from the Defendant.

4. The Defendant, in the written statement, while traversing the plaint averments, questioned the correctness of the description of the suit land as given in the plaint as also the ownership over the same as claimed by the Plaintiff. The documents such as mutation order and record of right are attacked as to have come into existence by way of manipulation. It is stated that the Plaintiff has been taking prevaricating stand as to the ownership and possession of the suit land at different point of time before different quarters/forums and, therefore, the claim as laid in the plaint is not acceptable. It is stated that the Defendant since the time of his father has been staying in the house built over the suit land upward of thirty years as its owner exercising all the rights as such in denying the title of the true owner all through. The possession is also stated to be open, peaceful and continuous without any objection to the same from any quarter whatsoever.

5. Faced with such pleadings, the Trial Court has framed in total seven issues.

Coming to answer the crucial issue as to the right, title, interest and possession of the Plaintiff as also the competing claim of the Defendant as to the perfection of title; first of all, finding has been rendered that the suit land was acquired by the father of the Plaintiff in the name of the Plaintiff. The Trial Court has, however, next held that the parents of the // 5 //

Defendant has been in possession of the suit land by constructing a house thereon and after their death, the Defendant has been in continuous possession of the same. Having said so, the Trial Court has also concluded that the Defendant has utterly failed to prove his case of acquisition of title by way of adverse possession.

Next going to the other issues, a view has been taken that since the Plaintiff has filed the Suit after lapse of thirty years of continuous possession of the suit land by the Defendant; the same is barred by limitation and the Plaintiff is not entitled to the decree as prayed for especially so as to recover the possessions of the suit land from the Defendant.

6. The unsuccessful Plaintiff having then preferred the First Appeal has tested the success of his suit by way of grant of all the reliefs as claimed. The First Appellate Court having reiterated the finding as to the antecedent title of the Plaintiff over the suit land upon analysis of both oral and documentary evidence independently at this level and testing the same in the touch stone of the settled position of law, has recorded the answer that the Defendant has failed to prove his case of acquisition of title over the suit land by adverse possession of otherwise. Having said this, keeping in view the settled position of law that the subsisting title holder of the property cannot be deprived of the possession, the suit has been decreed. The Defendant when has failed to prove his case of acquisition of title over the suit land by adverse possession, it has been said that the title of the Plaintiff over the suit land had not been extinguished prior to the institution of the Suit. The Suit thus has been decreed in entirety.

7. The Second Appeal has been admitted on the following substantial question of law:-

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"Whether the lower appellate court is right in setting aside the order of dismissal of the suit as passed by the trial court on the ground that the suit is barred by limitation?"

8. Learned counsel for the Appellant submitted that in the fact and circumstances as those emanate from the rival pleadings, the Plaintiff, in order to get a decree in his Suit, is under legal obligation to prove that he was in possession of the suit land at any point of time within twelve (12) years next before the institution of the Suit and that having neither been completed nor proved in clearly stating as to when he was dispossessed from the suit land; the First Appellate Court has erred in law in decreeing the Suit. It was submitted that the rightful owner of an immovable property when fails to take action to get back possession within the period as provided in law, his right, title and interest over the proper stand extinguished and, therefore, the Plaintiff having not been able to prove that at any point of time within twelve years prior to the suit land, he was in possession of the property and when the Defendant is found to have been in possession of the suit land by application of the provision contained in section 27 of the Indian Limitation Act, the Suit has to fail.

9. Learned counsel for the Respondent submitted all in favour of the judgment and decree passed by the First Appellate Court in decreeing the Suit. He submitted that on the face of the clear and concurrent finding of the Courts below as to the title of the Plaintiff over the suit land resting with the Plaintiff, which have remained undisturbed, it was for the Defendant to establish his claim of perfection of title by remaining in possession of the property not only for upward of the period but also in fulfilling the essential ingredients in remaining such possession, i.e, nec vi, nec clam and nec precario; for which the pleadings as required are not there in the written statement now there stands the satisfactory evidence.

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10. First coming to the claim of the Plaintiff as to his title over the suit land, the First Appellate Court is found to have discussed the evidence in great detail at paragraph-9 of its judgment. The Plaintiff having laid the foundation with regard to the loss of unregistered deed has proved Ext.1 as secondary evidence which is the certified copy obtained from Tahasil Office where it was produced for mutation. The Plaintiff has also stated so in his evidence. The original owner Adinarayana being present on 15.11.1966 before the Mutation Authority, has raised no objection and acting upon all these, orders of mutation of the suit land has been passed. It has held the field for over forty years. The evidence tendered by the Plaintiff go to show that the possession of the suit land had been delivered pursuant to Ext.1. It was also so noted in the mutation proceeding. Such old mutation record being attached with the presumption as to its correctness, there is no evidence from the side of the Defendant to rebut the same. The Court below has declined to accept the unregistered sale deed produced by the Defendant marked as Ext.F in showing that the father of the Plaintiff had sold the land in suit to one Madangi Pentayya on 16.03.1969. The reason assigned for the same appears to be quite convincing that when it is seen from the death certificate (Ext.6) that the Plaintiff's father, namely, Madangi Damana died on 10.03.1968, the unregistered deed (Ext.F) stands ignored. In view of all these above, the finding on the score of the title of the Plaintiff over the suit land firmly holds the field as it cannot be said to be outcome of perverse appreciation of evidence on record, more so when the Defendant has failed to show any title over the said suit land.

11. The Suit filed by the Plaintiff is based on title. Article 64 of the Indian Limitation Act relates to the Suit based on possession where the onus lies on the Plaintiff to prove his possession within 12 years of institution of the Suit in asserting that he has been wrongfully // 8 //

dispossessed at the hands of the Defendant. The next Article 65 of the said Act concerns with the suit for possession based on title where the burden of proof lies upon the Defendant to show as to how he acquired title by adverse possession. Both the Articles are independent provisions relating to the suit for possession based on two distinguished circumstances. In suits under Article 64 for possession based on continuous possession and not on title; certainly, the Plaintiff remains under the obligation of discharging the burden by proving his previous possession over the suit land and dispossession to have taken place within of 12 years from the date of filing of the Suit whereas in the suits governed under Article 65 of the Limitation Act, the Plaintiff when only proves his title, he has to succeed in claiming the possession from the Defendant unless the Defendant shows that he or his predecessor-in- interest had been in continuous adverse possession for over 12 years, the prescribed period.

In the backdrop of the above settled position of law, the First Appellate Court having held the title over the Suit land in favour of the Plaintiff, has rightly bestowed its consideration upon the issue as to how far the Defendant has proved his claim as to acquisition of title over the suit land by adverse possession. The evidence on record has been discussed in great detail and upon proper appreciation of the same, it is seen that the stand taken by the Defendant has been negated in holding that all the essential ingredients have neither been pleaded in detail as required nor proved through clear, cogent and acceptable evidence and in that no such infirmity is noticed.

In that view of the matter, the First Appellate Court is found to have committed no error in setting aside the finding of the Trial Court that the Suit filed by the Plaintiff is barred by Limitation Act. In view of // 9 //

the above, the submission of the learned counsel for the Appellant fails and the substantial question of law thus receives its answer against the Appellant (Defendant) which thus leads and in favour of the confirmation of the judgment and decree as have been passed by the First Appellate Court.

12. In the result, the Second Appeal stands dismissed. In the peculiar facts and circumstances of the case, the Parties are directed to bear their respective cost all throughout.

(D. Dash) Judge

Basu