Orissa High Court
RSA/379/2019 on 22 March, 2021
R.S.A. No.379 of 2019
02. 22.03.2021 This matter is taken up through hybrid arrangement
(virtual/physical mode).
The appellant, by filing this appeal under section 100 of the
Code of Civil Procedure (for short, 'the Code'), has assailed the
judgment and decree dated 17.10.2019 and 01.11.2019
respectively passed by the learned District Judge, Ganjam,
Berhampur in R.F.A. No.100 of 2017.
By the said judgment and decree, the lower Appellate court
has confirmed the judgment and decree dated 31.10.2017 passed
by the learned Civil Judge (Junior Division), Berhampur in Civil
Suit No.528 of 2012.
2. For the sake of convenience and clarity as also to avoid
confusion; the parties hereinafter have been referred to in the same
rank as assigned to them in the original proceeding before the
Trial Court.
3. The Plaintiff's case is that she purchased the suit land from
one Radha Sahu by registered sale deed dated 23.11.2011 for
valuable consideration and as such is the owner of the same.
Radha Sahu is said to have purchased the land in question from its
original owner by registered sale deed in the year 1960. It is her
case that the Defendant No.1 was the tenant under Radha Sahu
and she having sold the property to the Plaintiff had intimated the
tenant as regards the said transaction with further instruction that
he should pay the rent to her vendee. It is stated that Defendant
Nos.1 and 2 are two brothers and Defendant No.3 is the wife of
Defendant No.1. It is the further case of the Plaintiff that the
Defendants attorned the Plaintiff as their landlady and had
promised to pay the rent for their occupation of the suit premises
@ Rs.2000/- per month. However, they avoided to pay the rent
and filed a suit bearing No.413 of 2011 in the court of the learned
Civil Judge (Junior Divison), Berhampur through Defendant No.2
for permanent injunction. The Plaintiff appearing in the said suit,
have filed the written statement. Thereafter the Plaintiff issued the
notice under section 106 of the T.P. Act to the Defendants. In
response to the said notice, the Defendants denied the facts stated
therein. So, the Plaintiff filed the suit for eviction of the
Defendants. The Plaintiff side by side has pleaded that Purusottam
Sahu is not the adoptive father of the Plaintiff and it is false to say
the Defendant is had paid a a sum of Rs.5,00,000/- said
Purusottam Sahu and Radha Sahu (vendor of the Plaintiff) for
purchase of the suit house.
4. The Defendant Nos.1 and 3 contested the Suit by filing the
written statement. They challenged the sale deed based upon
which the Plaintiff claims her right, title and interest over the suit
land and her ownership to be of no value in the eye of law. It be
stated at this stage that Radha Sahu is none other than the mother
of the Plaintiff and Defendant No.1 had once claimed himself to
be the adopted son of Purusottam Sahu and Radha Sahu which has
been negated in earlier suit and appeal. It is further case of the
Defendants that in in the year 2001, Purusottam being in urgent
need of money for his business, decided to sale the land to the
father of Defendant Nos.1 and 2 when expressed his intention to
purchase the same and accordingly he had paid a sum of
Rs.5,00,000/- to Purusottam Sahu and Radha Sahu. It is, however,
said that the deed of conveyance could not come into being
because of the resistance by the Plaintiff. The Defendant Nos.1
and 2 claim to be in possession of the suit house land and house
with their children and having continued to posses the suit land for
quite a long period they claim to have acquired title over the said
land. They deny the relationship of the landlord and tenant
between them Radha Sahu. They also deny to have attorned the
Plaintiff as their landlady and to have agreed at any point of time
to pay the monthly rent of Rs.2000/- per month to them.
5. On the above rival pleadings, the Trial Court has framed as
many eight issues. Taking up Issue No.5, the finding has been
rendered that there was no relationship of landlord and tenant
between Radha Sahu and the Defendants. Next going to issue
nos.6 and 7 as to the entitlement of a decree of recovery of
possession of the suit house, the Trial Court based upon the title of
the Plaintiff which she has found to have established has held the
Plaintiff's entitlement to a decree for recovery of the possession of
the suit land and house from the Defendants.
The Defendant Nos.1 and 3 being aggrieved by the said
judgment and decree passed by the Trial Court, had carried an
Appeal under section 96 of the Code. In proceeding to judge the
sustainability of the findings of the Court below, in the backdrop
of the rival case and upon examination of the evidence on record,
the lower Appellate Court has affirmed the findings recorded by
the Trial Court.
This Appeal has now been filed by the Defendant No.3, the
wife of Defendant No.1 and the Defendant No.1 has been
arraigned as one of the Respondents
Learned counsel for the Appellant (Defendant No.3)
submits that the Courts below have erred both on fact and law in
not holding the Plaintiff's claim as untenable. It is submitted that
by ignoring the important factual aspects as those emanate from
the evidence on record that the Defendant No.3 and her family
have remained in possession of the suit house for more than 12
years, the Courts below ought to have held that they have
perfected the title over the same by adverse possession. That,
according to him, is the substantial question of law involved in
this case for admission of this Appeal.
6. In order to address the above submission, at the cost of the
repetition, the case projected by the Defendants in their written
statement need to be placed for provide appreciation. It has been
stated that the Defendant No.1 was given in adoption to
Purusottam Sahu and Radha Sahu by his natural parents and then
it has been pleaded that Purusottam being in need of money for his
business, had decided to sale the land in question through his wife
Radha Sahu and for the purpose, although had received a sum of
Rs.5,00,000/-, no deed of conveyance was executed to that effect
being resisted by the Plaintiff. The claim as to the adoption of
Defendant No.1 has already been negated in T.S. No.86 of 1985
filed by Defendant No.1 against Purusottam, his wife and two
others. That was a suit for partition at the instance of Shivaram
being the Plaintiff. The First Appeal No.245 of 1987 being carried
to this Court is stated to have also been dismissed. The Defendant
Nos.1 and 3 have admitted in their written statement that the
ownership of the property was resting with Radha Sahu as they
clearly plead that they had paid consideration of Rs.5,00,000/- to
purchase the land. In the absence of any registered document of
sale coming into being pursuant to the agreed proposal and receipt
of consideration, if any, of the property rested with Radha Sahu.
The Plaintiffs case is that she had purchased the land by a
registered sale deed from that Radha Sahu. In such situation, it
was incumbent for the Defendant Nos.1 and 3 to specific plead
and prove as to since which day, they started possessing the suit
land and house denying the title of Radha Sahu and adverse to her
interest and that as such they continued for upward of 12 years
without any interruption exercising all the rights of ownership to
the detriment of that Radha and others claiming through her. Here
in the case, not only that the pleadings tendered by the Defendants
fall far short of those requirements but also the evidence let in by
them at all satisfy the legal needs requirements for establishment
of a claim of acquisition of title by adverse possession over the
suit land and house.
For the aforesaid discussion and reasons, this Court is not in
a position to accept the submission of the learned counsel for the
Appellant (Defendant No.3) that the case involves any substantial
question of law meriting admission of this Appeal.
7. In the wake of aforesaid, the Appeal stands dismissed. In
the peculiar facts and circumstances, however, there shall be no
order as to costs.
(D. Dash)
Judge
Basu
