Orissa High Court
Afr Kalia Karna vs Kaikei Sethi & Others on 28 June, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 484 of 2005
[In the matter of an appeal under Section 100 of the Code of
Civil Procedure, 1908.
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AFR Kalia Karna ...... Appellant
-Versus-
Kaikei Sethi & others ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellants : Mr. S.P.Mishra, Advocate
For Respondents: Mr. P.K.Nayak, Advocate
_______________________________________________________
___
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28th June, 2024
SASHIKANTA MISHRA, J. This is an appeal filed against a
confirming judgment passed by the learned Additional
District Judge, Boudh in RFA No. 12 of 2004 on
30.07.2005 followed by decree whereby the judgment
passed by learned Civil Judge, Junior Division,
Kantamal on 25.09.2004 in T.S. No. 06 of 2002 was
confirmed. The plaintiff of the above suit is the
appellant herein.
2. For convenience, the parties are referred to
as per their respective status in the Court below.
3. The aforementioned suit was filed by the
plaintiff for declaration of his title over the suit land
and for recovery of possession. The plaintiff's case is
that the suit land appertaining to Hal plot No. 908
under Khata No. 224 situate in village Digi measuring
Ac. 0.04 decimals, is his ancestral property and was
partitioned among the co-sharers after death of his
father, Daitari Karna. He claims to have been allotted
an area measuring Ac. 11.25 decimals in the family
partition. There is a dilapidated house over the suit
land in which the original defendant No.1 (Sasi Muduli)
and defendant No.2 remained in permissive possession
after making necessary repairs. This was on
18.04.1986. Defendant No.1 had agreed to vacate the
house whenever the plaintiff wanted. On 11.05.1996,
the plaintiff asked the defendants to vacate the suit
house as he wanted to make construction for his own
accommodation. Since the defendants did not vacate
the suit house, he filed the suit in question.
4. The defendants contested the suit by filing
written statement inter alia stating that the suit land is
a portion of Sabik Khata No. 58 corresponding to Plot
Nos. 716 and 717 being recorded in the name of the
father of the plaintiff namely, Daitari Karna. It is
claimed that about 40 years ago, said Daitari Karna
had sold the entire land to the husband of defendant
No.1 namely, D.Muduli for a consideration of Rs. 90/-
by way of oral sale and since then defendant No.1 and
her husband have been possessing the suit land and
constructed residential house thereon. Such
possession is to the knowledge of the plaintiff and
other villagers. The defendants have also been paying
rent to Daitari Karna during his lifetime and after him,
through Padma Charan Karna, the elder brother of the
plaintiff. The suit land was sold in the year 1957 and
since then the defendants are in continuous and
peaceful possession. They have thus perfected their
right title and interest over the suit land because of
such long standing possession. It is alleged that the
plaintiff by colluding with the settlement officials
managed to get the suit land recorded in his name in
the ROR. The plaintiff's claim of acquisition of the suit
land through family partition was specifically denied.
5. On the rival pleadings, the trial court framed
the following issues;
I) Whether the suit is maintainable?
II) Whether the suit is under valued?
III) Whether there is any cause of action for the plaintiff to bring the
suit against the defendants?
IV) Has the plaintiff any right, title and interest over the suit land?
V) Whether the defendants have perfected their right, title & interest
over the suit land by way of their long standing possession?
VI) To what other reliefs the plaintiff is entitled?
6. Issue No.4 being the main issue was taken up for
consideration at the outset. The trial Court after
examining the oral and documentary evidence found
that the Hal ROR (Ext.1) stands recorded in the name
of plaintiff but the Sabik ROR (Ext. B) of the year 1963
is recorded in the name of all the brothers of the
plaintiff. The plaintiff did not adduce any cogent
evidence of partition between him and his brothers.
Since the ROR does not create or extinguish title, the
trial Court held that the same cannot be treated as
proof of right, title and interest of the plaintiff over the
suit land.
On issue No.5, the trial Court held that the
defendants have been possessing the suit land since
40 years from the date of purchase from the father of
the plaintiff. They have also been paying rent, as
evident from the rent receipts marked Ext. C and C/1,
to Padma Charan Karna. Moreover, the plaintiff has
not taken any step to vacate the defendants from the
suit land. As such, the defendants have perfected their
right, title and interest over the suit land by their long-
standing possession. In view of the findings on the
main issues as stated above, the remaining issues were
answered accordingly and the suit was dismissed by
holding that the plaintiff has no manner of right, title,
interest and possession of the suit land.
7. Being dissatisfied, the plaintiff carried the matter
in appeal to the District Court, mainly raising the
ground that despite overwhelming evidence showing
his title over the suit land, the trial Court committed
an error in dismissing the suit and in the absence of
any cogent evidence, the trial Court wrongly held that
the defendants have perfected their title over the suit
land. The First Appellate Court held that the ROR and
rent receipts are evidence of possession and do not
create title nor extinguish the same. The presumption
of correctness of the ROR is a rebuttable one. Coming
to the facts of the case, the First Appellate Court held
that though the plaintiff claims to have got the suit
land in a family partition, he did not adduce definite
evidence in support thereof. In the absence of the
evidence of partition, identity of coparceners, exent of
property put to partition, details of allocation of shares
to each of the coparceners, the claim of title of the
plaintiff on the basis of ROR cannot be accepted.
Moreover, in view of the admitted position that the
defendants are in possession of the suit land, the
presumption of correctness of the ROR is thoroughly
rebutted. The First Appellate Court therefore, held that
the trial Court rightly dismissed the suit. However, the
finding of the trial Court regarding perfection of title by
the defendants by way of adverse possession was
negatived on the ground that the same runs contrary
to the defendants' own case of having purchased the
suit land through oral sale. The appeal was thus,
dismissed and the judgment and decree of the trial
Court was confirmed.
8. Feeling further aggrieved, the plaintiff has filed the
present appeal, which has been admitted on the
following substantial questions of law:
"1. Whether the learned courts below are justified in saying that
plaintiff has failed to prove title over the suit land when the plaintiff's
suit is based on antecedent title and there is no dispute over the title
by the defendant and when defendant has taken a plea of oral sale
with alternative plea of adverse possession?
2. Whether the learned courts below have committed an error of law
by putting the onus on the plaintiff to disprove the defendant case
when defendant has taken a plea or oral sale and alternative plea of
adverse possession contrary to the plea of the plaintiff of permissive
possession the onus lies on the defendants to establish the plea of oral
sale or adverse possession?
3. Whether the learned lower appellate Court is justified in not
accepting the plea of permissive possession directing for eviction of the
defendants when plaintiff's title is admitted and substantiated by
Ext.1, i.e., ROR where the plaintiff's name is recorded exclusively and
defendants have failed to prove their title either by sale or adverse
possession? "
9. Heard Mr. S.P. Mishra, learned Senior Counsel with
Mr. A.K. Mohapatra for the plaintiff-appellant and Mr.
P.K.Nayak, learned counsel appearing for the
defendant-respondents.
10. Learned Senior Counsel Mr. Mishra contends that
once the defendant claims to have purchased the
property by way of oral sale, he impliedly admits the
title of the owner of the land, which in this case is the
plaintiff's father at the relevant time. Secondly, when
the defendant alternatively claims to have perfected his
title because of his long possession (adverse
possession), it also implies that he admits the title of
the true owner, that is, the plaintiff. Neither the oral
sale nor adverse possession could be proved by the
defendants. Under such circumstances and in view of
the admission of the plaintiff's antecedent title over the
suit land, the suit could not have been dismissed. Mr.
Mishra further argues that the possession of the
defendant can only be treated as permissive in nature.
11. Per contra, Mr. P.K.Nayak would argue that the
defendants' case is entirely based on oral sale and not
adverse possession. Their long possession is otherwise
admitted by the plaintiff. Since the plaintiff could not
prove his claim of being allotted with the suit land in
family partition, both the Courts below rightly rejected
his claim as such. Mr. Nayak further argues that mere
recording of the name of the plaintiff in the Hal ROR
cannot be treated as proof of his title particularly,
when he claims to have received the property in a
family partition, which was never proved.
12. After considering the rival contentions and on
examination of the facts of the case and evidence laid
by the parties, this Court finds that admittedly, the
suit land stands recorded in the name of the plaintiff in
the Hal ROR marked Ext.1. It is not disputed that the
suit land forms part of the land recorded in the name
of the plaintiff and his brothers. It is trite law that
entries in the ROR carry a presumption of correctness
unless rebutted by cogent evidence. The First Appellate
Court has held that long possession of the defendants
over the suit land rebuts the presumption regarding
title of the plaintiff over the suit land. This is an
entirely unacceptable proposition for the reason that
the defendants at least admit the antecedent title of the
plaintiff. Their possession over the suit land can either
be permissive or adverse in nature. The First Appellate
Court has held, and rightly so, that the plea of adverse
possession of the defendants has no legs to stand.
Therefore, the possession of the defendants can only be
treated as permissive in nature. So, this Court fails to
understand as to how merely because of possession of
the suit land by the defendants, the presumption of
correctness of the entries in the ROR could be
'thoroughly' rebutted as held by the First Appellate
Court. It must be kept in mind that defendants are not
members of the family. Moreover, there is nothing on
record to show that the ROR was wrongly prepared or
was a product of manipulation by the plaintiff. In the
absence of any such evidence, the ROR has to be
presumed be correct.
13. Even otherwise, the defendants are strangers to
the family. Unless they come up with a specific case
questioning the claim of plaintiff of having been
allotted the suit land in a family partition, mere denial
in the written statement or disputing the plaint
averments in this regard cannot demolish the claim of
the plaintiff in view of the recording of the suit land in
his name in the Hal ROR. Both the Courts below
appear to have wrongly forayed into the question of
partition at the instance of an outsider, who
incidentally, does not dispute the plaintiff's antecedent
title. As regards the claim of the defendants, there
being no independent appeal made in the finding
rendered by the First Appellate Court, this Court would
ordinarily not be inclined to go into such question.
However, the question of possession of the defendants
being intricately linked to the claim of the plaintiff, this
Court has considered the same only to the limited
extent of examining whether the same could have any
bearing on the ultimate outcome of the suit. This Court
finds that the claim of the defendants is contradictory
inasmuch as on one hand, they claim to have
purchased the suit land from the plaintiff's father by
way of oral sale and yet at the same time, the plea of
adverse possession is advanced. Both the pleas are
mutually contradictory and therefore, cannot be
accepted. Even accepting the plea of adverse
possession, it would be nothing but an admission of
the title of the plaintiff over the suit land as without
admitting the title they obviously could not have staked
claim of title through adverse possession. In any event,
this Court also finds that the defendants have taken
contradictory pleas both of which could not be proved.
In such view of the matter, there is no way by which
the title of the plaintiff could be questioned.
14. Thus, from a conceptus of the discussion made
hereinbefore on facts and the law relevant to the case,
this Court finds that both the Courts below have
committed manifest error in rejecting the claim of the
title of the plaintiff over the suit land. The impugned
judgments therefore, warrant interference.
15. In the result, the appeal succeeds and is
therefore, allowed. The impugned judgments are set
aside. The suit filed by the plaintiff is decreed by
declaring his right, title and interest over the suit land.
Further, the defendants are directed to hand over
vacant possession of the suit land to the plaintiff
within three months failing which it shall be open to
the plaintiff to enforce the decree in accordance with
law. Parties shall bear their own costs.
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Location: OHc,Cuttack Sashikanta Mishra,
Date: 02-Jul-2024 19:44:47
Judge
Deepak
