Mahadev Sahu vs Jasobanta Singh (Dead) By Lrs
2023 Latest Caselaw 10492 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     SA No.304 of 1997

  Mahadev Sahu                             ....              Appellant
                                          Mr. T.K. Mishra, Advocate



                               -Versus-

  Jasobanta Singh (Dead) By LRs          ....        Respondents

Mr. Laxman Pradhan, Advocate CORAM:

JUSTICE R.K. PATTANAIK

DATE OF JUDGMENT:31.08.2023

1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the behest of the appellant challenging the correctness of the impugned judgment in Title Appeal No.21 of 1992 passed by the learned District Judge, Boudh-Kandhamal, Phulbani, whereby, the decision of the learned Additional Sub- Judge, Phulbani in Title Suit No.15 of 1987 for having decreed the suit in favour of the original respondent was confirmed on the grounds inter alia that the same is not tenable in law.

2. The appellant has questioned the legality of the impugned judgment and decree dated 23rd June, 1997 in Title Appeal No.21 of 1992 on the ground that when adverse possession in respect of Plot No.753 was claimed, the leaned courts below erred in law by not considering the same on the premise that he does not have any substantive title on any part thereof with a conclusion that the original respondent to be the owner and furthermore, the location of the suit schedule land and its existence and ownership was not proved and hence, the findings stand vitiated as a result.

Mahadev Sahu Vrs. Jasobanta Singh (Dead) By LRs

According to the appellant, the judgment of the learned Lower Appellate Court is based on non-consideration of evidence and by not properly examining the issues involved between the parties.

3. The original respondent instituted the suit against the appellant for declaration of title and possession of the suit schedule land or in the alternative, recovery of its possession, if found to have been dispossessed and for damages and perpetual injunction. The original respondent pleaded that in 1975, he purchased land which included the suit schedule interest appertaining to Hal Plot No.753 under Holding No.46 of Mouza- Giringapada by a registered sale deed for a consideration of Rs.800/- and simultaneously took delivery of its possession after due measurement and demarcation. It is further pleaded that the original respondent sold a portion of the said land to one Siba Prasad Agrawal leaving the balance with him, whereas, the appellant is the owner of the adjoining land to the north of the suit schedule land. It was pleaded that during the year 1986, the original respondent wanted to raise a pucca construction over the land and also stacked construction material but the appellant protested the same and later thereto, a demarcation was applied for and held but the same could not settle the dispute and finally, the suit was instituted with the reliefs and also for recovery of the suit land from the appellant. On the contrary, the appellant pleaded that they initially by virtue of an agreement and later, through a sale deed acquired and possessed the disputed land too which is being used a pathway linking the residential house with the main road. The dispute is over Ac.0.01 decimal of land which is alleged to have been encroached upon by the appellant. In fact, according to the appellant, the land which is said to have been encroached is and has been in their occupation ever since the date of agreement with the vendor. Considering the pleadings of the

Mahadev Sahu Vrs. Jasobanta Singh (Dead) By LRs

parties, the learned Additional Sub-Judge, Phulbani framed as many as eight issues including a question as to whether the appellant perfected adverse title over the suit schedule land. One of the issues is in respect of the suit schedule land and if the same appertains to Hal Plot No.753/1208 under Holding No.46 of the Mouza in question. Considering the evidence adduced by the parties, the learned Trial Court reached at a logical conclusion that the original respondent is having the proprietary interest over the suit schedule land and he is also entitled to recovery of its possession and accordingly, decreed the suit and directed the appellant to deliver possession of the same within the stipulated period or else to be recoverable through process of the court and at the same time, perpetually injuncted him from entering upon the same and interfering with the former's possession after it was delivered to him. The said findings and judgment in T.S. No.15 of 1987 was challenged in Title Appeal No.21 of 1992, however, the appellant failed to succeed as the appeal was dismissed confirming the title in favour of the respondent rejecting the plea of adverse possession. Being unsuccessful, the appellant has knocked the doors of this Court questioning the legality of the findings rendered by the learned courts below.

4. Heard Mr. Mishra, learned counsel for the appellant and Mr. Pradhan, learned counsel for the respondents.

5. This Court by order dated 5th March, 1998 formulated ground Nos.1, 2, 3 and 7 of the Appeal Memorandum as the substantial questions of law for determination. Mr. Mishra, learned counsel for the appellant reiterated the grounds and questioned the findings of the leaned courts below and in contrast, Mr. Pradhan, learned counsel for the respondents justified the decree of the learned Lower Appellate Court confirming the decision in the suit.

Mahadev Sahu Vrs. Jasobanta Singh (Dead) By LRs

6. From the side of the original respondent, oral and documentary evidence have been adduced. In so far as PW 2 is concerned, he was appointed as the Civil Court Commissioner to measure the suit property in respect of Plot No.753/1208. PW 2 proved the report as Ext.6 which was prepared by him after measurement and demarcation. That apart, PW 2 marked Ext.6/1, a sketch map prepared in course of investigation. The learned Trial Court did not find any material to discredit the report. In fact, the said report was accepted by both the courts below. From the said report, as deposed by PW 2, it was established that the schedule land relates to Hal Plot No.753/1208 under Holding No.46 of the suit village which found to have tallied with the boundary of the land described in the plaint and thus, proved the alleged encroachment. Considering the said report and sketch map, it was held by the learned Trial Court that the same corroborated the finding of the Amin deputed for demarcation in Misc. Case No.709 of 1986 which was at the instance of original respondent. The Amin's report stood marked as Ext.4 dated 6th August, 1986 and the same was in respect of Plot No.753/1208. From the above evidence, it was concluded by the learned Additional Sub-Judge, Phulbani that the suit land actually appertains to Plot No.753/1208 and accordingly, answered the issue in favour of the original respondent. On analysis of the nature of evidence received from the original respondent and having due regard to the reports, such as, Exts.4 and 6, the inescapable conclusion is that the suit land forms a part of Plot No.753/1208 which found to be in possession of the appellant and hence, he was directed to deliver its possession to the original respondent. In the considered view of the Court, such a finding in the suit confirmed in appeal does not appear to be in any manner flawed.

Mahadev Sahu Vrs. Jasobanta Singh (Dead) By LRs

7. As to the plea of adverse possession and title by the appellant, the same has been considered by the learned Trial Court elaborately. On the one hand, the appellant denied claim over Plot No.753/1208 or any part thereof and at the same time, pleaded adverse possession over the suit schedule land and according to Mr. Pradhan, learned counsel for the respondents, the same cannot stand together. The principle of law on acquisition of adverse title has been examined by the court in threadbare and the same stands duly examined by the learned Lower Appellate Court. With regard to the adjoining plot so acquired by the appellant, an agreement under Ext. A was proved and thereafter, title over the same claimed by virtue of Ext. B. The plot which has been purchased by the appellant later to Ext. A adjoins Plot No.753/1208. In fact, as per recitals of Exts. A and B, the vendor said to have finally alienated Plot No.751 in favour of the appellant with the boundary duly described revealing the fact that the vendor of the original respondent had his land to the south of the land so purchased. The ownership of the appellant is in respect of Plot No.751 and considering the evidence, such as, Exits.4 and 6, it stands proved that the encroached area forms a part of Plot No.753/1208. The said conclusion of the learned Trial Court has been found favour with the learned Lower Appellate Court. The plea of adverse possession as advanced by the appellant must have to fail for the reasons stated by the learned Trial Court. Having considered the entirety of the materials on record, the conclusion of the Court would be that the learned courts below did not commit any serious error in law while dismissing the plea of adverse possession and for having decreed for suit in favour of the original respondent. In other words, the Court does not find any justifiable ground to interfere with the impugned judgment and decree of the learned Lower

Mahadev Sahu Vrs. Jasobanta Singh (Dead) By LRs

Appellate Court. Consequently, for the discussions made herein above, the substantial questions stand answered.

8. Hence, it is ordered.

9. In the result, the appeal is dismissed, however, in the circumstances, there is no order as to costs.

(R.K. Pattanaik) Judge

TUDU

Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 01-Sep-2023 18:27:47