Urmila Lenka vs Ramesh Chandra Panda & Others
2023 Latest Caselaw 13486 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          R.S.A. No.156 of 2021
      In the matter of an Appeal under Section 100 of the Code of Civil
Procedure assailing the judgment dated 16.09.2021 passed by the learned 1st
Additional District Judge, Cuttack in R.F.A. No.135 of 2015/ 17 of 2017
confirming the judgment and decree dated 27.06.2015 passed by the learned
Senior Civil Judge, Cuttack in C.S. No.975 of 2010.
                                 ----

     Urmila Lenka                         ....            Appellant


                               -versus-

     Ramesh Chandra Panda & Others        ....         Respondents

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

             For Appellant     -     M/s. Durga Prasad Pradhan,
                                     B.K. Bastia, P.R. Nayak
                                     (Advocates)

             For Respondents -       Mr. Satyabadi Mantri,
                                     Mr. A.K. Panda
                                     (Advocates)
CORAM:
MR. JUSTICE D.DASH

DATE OF HEARING :13.10.2023:: DATE OF JUDGMENT:01.11.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dated 16.09.2021 passed by the learned 1st Additional District Judge, Cuttack, in RFA No.135 of 2015/ 17 of 2017.

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The present Appellant as the Plaintiff had filed Civil Suit No.9175 of 2010 in the Court of Senior Civil Judge, Cuttack seeking declaration of her right, title, interest over the suit land describing the schedule of the plaint by virtue of adverse possession further prayer to declare the sale deed dated 10.12.2010 executed by Respondent No.1 and 2 (Defendant No.1 and 2) in favour of the Respondent (Defendant No.3) as void. The suit having been dismissed, the Appellant (Plaintiff) had carried the appeal under section 96 of the Code which has also been dismissed. Hence the present second Appeal is at the instance of the unsuccessful Plaintiff.

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. Plaintiff's case is that the property in suit originally belong to one Jadunath Panda, the father of Defendant No.1 and he was the recorded tenant having acquired the said property on 21.07.1990. It is stated that Jadunath was not occupying the suit land which is a piece of homestead land having house over it. In view of his absence and as no care was taken for repairing the house and its maintenance, the house became unfit for residential purpose. The Plaintiff finding house to be in ruin and vacant on 14.01.1991, entered into the same and started residing with his family members. He repaired the said house and also put up some new construction. On 13.06.1993, the Defendant No.1, his father Jadunath, Defendant No.2 and mother of Defendant No.2 came and saw the Plaintiff to be in occupation of the suit house. Thereafter they left the place and it is said that carrying the satisfaction in mind that their dilapidated house had been repaired. Thus they had good relationship with the Plaintiff. It is stated that the Plaintiff has been occupying the suit house for her residential house where her family members

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are residing to the knowledge of the Defendant and his father, the occupation is said to be open, peaceful and continuous without any disturbance from any quarter for all these period on and from 14.01.1991. When the matter stood thus on 23.06.1993, the Plaintiff received threat from Defendant No.1 being supported by some anti social element that she would be evicted from the suit house. In view of such persistent threat, the Plaintiff came to file the suit. It is further stated that the possession of the suit house by the Plaintiff all through was by exhibiting hostile animus to the real owner and claiming the ownership unto herself. The Defendant No.1 and 2 sometime before the suit had sold away the property by registered sale deed dated 14.12.2010. It is thus said that when by that time the Defendant No.1 and 2 had no title over the property and their titles stood extinguished by virtue of acquisition of title over the said land by Plaintiff by way of adverse possession, the said sale is void.

4. The Defendants were set ex parte.

5. The Trial Court examining the unchallenged testimony of the witnesses (P.W.1-3) examined on behalf of the Plaintiff including the Plaintiff herself and on going through the documents proved from the side of the Plaintiff and marked Ext.1 to 9 has held that the Plaintiff has failed to establish her case of acquisition of title over the suit land by way of adverse possession. The evidence on record were found to be not fulfilling all the required ingredients for establishment of a case of acquisition of title and by way of adverse possession by the Plaintiff over the suit land. Thus being non-suited, the Plaintiff having carried the First Appeal has also been unsuccessful. The Appeal has been admitted to answer the following substantial question of law:-

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"Whether the concurrent finding of the Courts below that the Plaintiff has failed to establish his claim/case of acquisition of title by way of adverse possession is the outcome of perverse appreciation of evidence?"

6. Mr. D. P. Pradhan, learned counsel for the Appellant (Plaintiff) submitted that when the evidence of the Plaintiff was not impeached to any ground whatsoever and the documents admitted in evidence and marked Exhibits were not questioned, the Trial Court's conclusion that the Plaintiff has failed to establish her case of acquisition of title by way of adverse possession is wholly perverse; moreso when the plaint averments have gone totally uncontroverted. He also submitted that the Courts below in view of such long possession of the suit land by the Plaintiff established by evidence both oral and documentary, in the absence of any evidence to the contrary ought to have presumed the nature of possession to be by exhibiting hostile animus and to the knowledge of the true owner. He, therefore submitted that the substantial question of law be accordingly answered in favour of Plaintiff entitling her to a decree as prayed for.

7. Mr. S. Mantry, learned counsel for the Respondent while supporting the concurrent findings of the Courts below, submitted that on a bare reading of the averments taken in the plaint and the testimony of the Plaintiff when no case for acquisition of title over the suit land by way of adverse possession being made out, the Trial Court as well as the First Appellate Court have rightly dismissed the suit. He further submitted that the story as to how the Plaintiff came into possession over the suit land and continued to reside as stated itself is highly improbable and appears to be wholly imaginary. He, therefore, submitted that on the face of the settled position of law that mere long possession of a piece of immovable property by the possessory is not enough to clothe him her with the title by way of adverse

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possession unless the classical ingredients such as nec vi, nec clam, nec precario are pleaded and proved by leading clear, cogent and acceptable evidence, the concurrent findings of the Courts below on that score rendered against the Plaintiff are not liable to be tinkered with by the Court in seisin of the Second Appeal, which has very limited scope and it is only in case of perversity which is completely absent in the present case.

8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings placed by the learned Counsel for the parties in course of hearing.

9. Admittedly, the father of Defendant No.1 was the owner and recorded tenant in record of the suit land. The Plaintiff has not pleaded that she had no other house situated nearby. It is stated that finding suit land to be vacant and not possessed by anybody and so also the house being not occupied by anyone, on 14.01.1991 she made an entry to it and started residing there with her family members. It is not stated as how the Plaintiff could see the suit land when it is not said that she had any land of her own in the nearby locality or that she was residing somewhere in the vicinity, it is as of the Plaintiff coming to Cuttack on a fine morning being prior informed by somebody about the suit land and house lying vacant and unoccupied, jumped into it. The story itself appears to be an imaginary one. Furthermore, it is simply pleaded in the plaint that two years after the Plaintiff possessed the suit land and house, Defendant No.1 and his father had been to the place and they left carrying a satisfaction that at least their house being repaired was like the Plaintiff. The relationship between the Plaintiff and Defendant No.1 is stated to have continued as cordial. Even if we accept the case of the Plaintiff as regards her possession of the suit land and occupation of the suit house as her residence, nowhere it is pleaded that such possession was as

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that of owner denying the title of the true owner and claiming the right, title, interest unto herself (Plaintiff) it is also not pleaded that such hostile possession of the suit land and house by the Plaintiff was with the knowledge of the Defendant No.1 and his father and in that way the possession continued for upward of the prescribed period. The Plaintiff is also found to have not taken any step in getting the suit land recorded in her name. Although it is simply stated that there was hostile animus further details are wanting. The evidence of the Plaintiff (P.W.1) being taken note of in the backdrop of her pleading, the concurrent findings of the Courts below against her claim/case of the Plaintiff that she has failed to establish the factum of acquisition of title over the suit land by way of adverse possession is found to be well in order and without any infirmity much less to say any perversity.

10. For all the aforesaid substantial question of law is answered against the Plaintiff which runs in confirming the judgment and decree passed by the Courts below in non-suiting the Plaintiff.

11. In the result, the Appeal stands dismissed. There shall however, no order as to cost.

(D. Dash), Judge.

Signature Not Verified Digitally SignedGitanjali Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 02-Nov-2023 12:50:41

R.S.A. No.156 of 2021