Smt. Saudamini Prusty & Others vs Jagannath Bhagat & Others
2021 Latest Caselaw 10714 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                   Second Appeal No.132 of 1994


In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 19.02.1994 and
04.03.1994 respectively passed by the learned Civil Judge (Senior
Division), Khurda in Title Appeal No.22 of 1981 setting aside the
judgment and decree dated 14.09.1981 and 29.09.1981 respectively
passed by the learned Munsif, Khurda in O.S. No.31 of 1974(I).


     Smt. Saudamini Prusty & Others        ....           Appellants

                                -versus-

     Jagannath Bhagat & Others             ....         Respondents

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

      For Appellants     -     Mr.A. Ch. Mohanty
      For Respondents -        M/s.G.S. Patnaik, G. Mukherji and
                                   P.Mukherji

CORAM:
MR. JUSTICE D.DASH

Date of Hearing : 08.09.2021 : Date of Judgment :07.10.2021

D. Dash, J

1. The Appellants, by filing this Second Appeal filed under Section

100 of the Civil Procedure Code (for short, 'the Code') have assailed the

judgment and decree dated 19.02.1994 and 04.03.1994 respectively

passed by the learned Civil Judge (Senior Division), Khurda in Title

Appeal No.22 of 1981.

By the said judgment and decree, the judgment and decree passed

by the learned Munsif, Khurda in O.S. No.31 of 1974(I) whereby the

Suit filed by the original Plaintiff, namely, Gunabati Dei, had been

dismissed; have been set aside. Accordingly, the Suit has been decreed

and the reliefs of eviction and permanent injunction have been granted.

Being aggrieved, the Defendants are now in Appeal.

2. It may be stated here that the original Plaintiff Gunabati Dei

having died during pendency of the First Appeal filed by her in assailing

the judgment and decree whereby she had been non-suited, her legal

representatives have come on record and pursued the First Appeal as the

Appellants therein and they are now the Respondents.

Similarly, the Defendant No.1, Hadibandhu Prusti, having died

during pendency of that First Appeal, his legal representatives have been

substituted and contested the First Appeal, who are now before this

Court as the Appellants.

3. 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.

4. The Plaintiff's case is that Sri Sri Radhakanta Deb, the Defendant

No.2 is the stitiban tenant in respect of the suit land under Sabik Khata

No.348, Plot No.2453 covering an area of Ac.0.019 decimals and a house

was standing thereon being assigned with NAC Holding No.96. It was in

Mouza-Jajarsingh under Khurda town and under him, one Gopi Behera

was the Sikim tenant in Sikimi Khata No.978 and he had his house over

it. The status of the land was thus recorded as 'Ghara'. In the locality, as

per the custom, the sikimi right is heritable and transferable. So, after the

death of Gopi Behera, his son Maguni Behera sold the suit land to

Siujatan Ram by registered sale deed dated 20.04.1944 on the receipt of

consideration. He had also delivered possession of the same. Thereafter, it

is said that in a partition between Siujatan Ram and Budhan Ram, it fell

in the share of Budhan Ram and he by registered sale deed dated

28.08.1948 sold the same to Banchhanidhi Pradhan who became the

owner in possession of the suit land. It is further pleaded that

Banchhanidhi sold the suit land to Bhagabati Bewa, the mother of the

Plaintiff under registered sale deed dated 27.08.1956 and delivered

possession of the same since when she is continuing to possess the same.

After purchase, the Plaintiff's mother mutated the land in her favour and

went on paying the rent. She also paid the municipal holding tax till her

death on 21.02.1973. Bhagabati Bewa being sick and having nobody to

lookafter her property, had engaged Defendant No.1 as caretaker of the

same. The Defendant No.1 thereafter, taking permission from the mother

of the Plaintiff, resided in the house standing over the suit land with the

family members. It is further stated that such arrangement was for

temporary period till the Defendant No.1 gets a suitable house. Bhagabati

having died, the Plaintiff being her daughter, as the sole heir-in-successor,

inherited the property including the suit property and thus became the

absolute owner. She then wanted the Defendant No.1 to vacate the suit

house. The Defendant No.1 however avoided to do so and he next

advanced the claim of title over the suit land. The Plaintiff therefore filed

the suit.

5. The Defendant No.1 coming to contest in his written statement

asserted that neither Bhagabati Bewa nor said Gopi Behera were having

any interest over the suit land. There was no custom in the locality that

Sikimi right is heritable and transferable. So, Bhagabati had got no

interest in the entire property by virtue of the sale deed executed in her

favour. It has also been stated that Defendant No.1 with Banchhanidhi

were doing business in dealing fire-woods. Accordingly, they were using

the suit land which was lying fellow. It was during the year 1947 to 1949.

The business continued for two years and subsequently heavy loss being

sustained, it came to be closed. It was also pleaded that the Defendant

No.1 paying salami to the father of Defendant Nos.3 to 7 and having

constructed the house over the suit land continued to remain in

possession of the property since 1950. Asserting the possession to be

open, peaceful and continuous as its owner for all these years in denial of

the title of the true owner, the Defendant No.1 has presented the case of

acquisition of title over the suit land by adverse possession.

6. On the above rival pleadings, the Trial Court has framed five

issues. Coming to answer issue nos.2 and 4 as to how far the Plaintiff has

proved her case that she has the right, title and interest over the suit land,

the answer has been in the negative. Similarly, the issue as to whether the

Sikimi right is according to the custom as prevalent in the locality, the

answer have again been in the negative. Based on the findings on the

above issues, the Suit being dismissed; the unsuccessful Plaintiff had

carried the First Appeal under Section 96 of the code.

7. The First Appellate Court, after remand of the Appeal being so

ordered by the judgment passed by this Court in S.A. No.88 of 1983, has

allowed the Appeal by setting aside the judgment and decree passed by

the Trial Court. The Suit has thus been decreed holding the Plaintiff to be

the title holder of the property and as such entitled for possession of the

same and the decree for eviction of the Defendants as prayed for by the

Plaintiff has been passed.

8. The Appeal has admitted on the following substantial question of

law:-

"Whether the conclusion about adverse possession is tenable in law?"

9. A careful reading of the above formulated substantial question of

law goes to show that those relate to the finding of the lower Appellate

Court that the Defendant No.1 has not perfected title over the suit land by

adverse possession. So, now whether in recording such a finding, the

First Appellate Court has committed grave error in law being oblivious of

the settled position of law holding the field or that the evidence on record

having been appreciated in a perverse manner are required to be answered

since the plea of the Defendant No.1 has been held to have not been

established.

10. Learned counsel for the Appellants submitted that when Siujatan

Ram's possession over the suit land on the face of Ext.4 and the

document in support of partition as is said to have been taken place in the

year 1945 has not been proved, the possession of the suit land by Budhan

Ram and that of Banchhanidhi as well as Bhagabati also ought to have

been held to have not been so proved and in that view of the matter, the

Defendant No.1 having proved through clear, cogent and acceptable

evidence that he has been in possession of the suit land since the year

1950, on the face of the evidence of refusal of salami by Defendant No.1

and other evidence as to the surrounding circumstances, which fulfill all

the required ingredients of adverse possession, the lower Appellate Court

ought to have held the Defendant No.1 to have perfected the right, title

and interest over the suit land by virtue of adverse possession and

accordingly the reliefs claimed by the Plaintiff against Defendant No.1

ought to have been denied. He, therefore, submitted that the substantial

question of law is to find its answer in favour of dismissal of the Suit by

restoration of the judgment and decree passed by the Trial Court which

have been annulled by the Lower Appellate Court.

Learned counsel for the Respondents, in reply, submitted that the

concurrent findings of the Courts below has been that the Plaintiff has

established antecedent title over the property in question and that is

sustainable and, therefore, the lower Appellate court, keeping in view the

settled position of law that it is for the Defendant No.1 to establish his

claim of perfection of title by adverse possession by way of

extinguishment of the right, title and interest of the Plaintiff over the same

has gone to analyze the evidence and the conclusion has rightly been

arrived at running against the claim/case set up by the Defendant No.1.

He submitted that the substantial questions of law are accordingly to be

answered in support of the confirmation of the judgment and decree

passed in the First Appeal when it cannot be said to be the result of

perverse appreciation of evidence.

11. In the earlier Second Appeal, i.e, S.A. No.88 of 1983, the

impugned order is specific that the lower Appellate Court is only to

consider the question as to whether on the existing evidence on record,

the Defendant No.1 can be said to have established his case/claim of

perfection of title by adverse possession over the suit land.

The settled position of law is that a Suit for possession based on

title is required to be filed within a period of twelve (12) years from the

date when the possession of the Defendants becomes adverse to the

Plaintiff. The Plaintiff is to succeed if he proves title without further

proving that was in possession of the suit land at any point of time within

a period of twelve (12) years next before the filing of the Suit. The

Defendants, however, to defeat the right of the Plaintiff are under legal

obligation to establish that he has been in possession of the suit land for a

completed period of twelve years prior to filing of the Suit and that such

possession was open, peaceful, continuous without any interruption from

any quarter and all through as its owner exercising the rights as such in

denying the title of true owner to his knowledge.

The Plaintiff has been examined as P.W.1. It is stated that

Bhagabati became the owner of the suit land by purchasing the same from

Banchhanidhi, who had purchased the property in question from Budhan

Ram, the purchaser from Maguni Behera, the erstwhile owner. Maguni

Behera, who happens to be the son of the recorded tenant Gopi Behera

(P.W.4), Banchhanidhi Behera (P.W.5) and Sri Krushna Ram, who is

none other than the son of Budhan Ram examined as P.W.6 have also

deposed in the same line. They have also stated that the possession of the

land in question have accordingly changed the hands. Besides the above

oral evidence, the recitals in the sale deeds stand to the effect of delivery

of possession when it is the very case of the Defendant No.1 that the suit

land was lying fellow and in the year 1950, he came and occupied the

same and by putting up a house, continued his activity over there. The

oral as well as the documentary evidence let in by the Plaintiff negates the

very important aspect as to the entry of Defendant No.1 to the suit land,

commencement of possession and the manner of possession as it is seen

that the successive sales of the suit land was with the house standing

thereon. More importantly, Ext.7 in clear terms speaks so. Keeping all

these in view, the First Appellate Court having raised the eye brows as to

the very foundation of the case projected by the Defendant No.1, this

Court is not in a position to differ being not able to say that the view so

taken suffers from the vice of perversity.

It is the evidence of D.Ws, which now require little elaboration.

The evidence of the D.W.1 is as to his knowledge about the occupation of

the house by Defendant No.1 for 10 to 12 years prior to July, 1975 when

he has been examined. He has expressed his ignorance on the fact as to

who put up the house. The other witness (D.W.2) says that the Defendant

No.1 came over the suit land about 25 to 26 years before, which is

coming around the year 1950-1951. He, however, has stated to have

requested one Madhusudan Bahinipati for that piece of land. When

D.W.3 has also deposed that he told D.W.2 to make a request to one

Madhusudan Bahinipati who happens to be the owner of the land and

accordingly, D.W.2 arranged the land on execution of certain documents

and fixing of salami, which ultimately did not happen for some

unavoidable circumstance. This evidence of D.Ws.2 and 3 not only travel

beyond the case of the Defendant No.1 but also is not indirectly

connected; rather the same is completely contradictory to the very case

set up in the written statement. The case of the Defendant No.1 in the

written statement is that he was doing good business there over the suit

land and paying salami. The father of Defendant Nos.3 to 7 had

constructed the house over the same. He has also stated that at one point

of time, the land was lying fellow and he put up a house over there.

Facing the cross-examination, the Defendant No.1 has stated to have

stayed there over the suit land for eight years prior to his retirement in the

month of September, 1985. The lower Appellate Court had analyzed the

evidence of all these witnesses in great detail and has, held that there has

been failure on the part of the Defendant No.1 to prove by leading clear,

cogent and acceptable evidence that he was in possession of the suit land

from the year 1950 exercising the rights of ownership exhibiting hostile

animus as against the true owner to his knowledge. By assigning good

reasons the evidence of D.Ws have been found to be unacceptable.

Moreover, it has to be taken note of the fact that the Defendant No.1, in

support of his claim of possession of the suit land since the year 1950 by

putting up a house over there, has not been able to produce a scrap of

paper in support of the factum of possession at any point of time and at

the same time, it is found the evidence let in by the Plaintiff both oral and

documentary is sufficient to negate the claim of the Defendant No.1 on

the relevant scores.

The Defendant No.1 has admitted that the suit land belonged to

Deity when Defendant Nos.3 to 7 were its Marfatdars and that he had

requested the father of Defendant Nos.3 and 4 to permit him to occupy

the suit land. This has been deposed to by D.W.2. Faced with such

evidence on record, the First Appellate Court has rightly said that the

Defendant No.1 has failed to establish his case as to acquisition of title

over the suit land by adverse possession. Keeping in view all the above,

basing on the finding of the title over the suit land as to resting with the

Plaintiff, the result rendered in decreeing the suit holding the Plaintiff's

entitlement to recover possession from the Defendants in view of their

possession as rank trespassers, is thus found be well in order.

12. In view of the aforesaid discussion, the answers to the substantial

question of law stands returned against the case of the Defendants which

run in favour of confirmation of the judgment and decree passed by the

First Appellate Court.

13. Resultantly, 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