Orissa High Court
Dwari Swain (Dead) And Others vs Sibaram Swain And Another on 4 April, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.76 of 2002
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Dwari Swain (Dead) and others .... Appellants
-versus-
Sibaram Swain and another .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. S.P. Mishra,
Sr. Advocate.
Mr. R.K. Agarwal,
Advocate.
For Respondents - Mr. A.K. Mishra,
Advocate.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :27.02.2024 :: Date of Judgment :04.04.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment.
2. The appellant-Dwari Swain of this Second Appeal was the defendant No.1 before the Trial Court in the suit vide T.S. No.57 of 1988 and he was the appellant before the First Appellate Court in the First Appeal vide T.A. No.24 of 1991.
Page 1 of 26 S.A. No.76 of 2002
{{ 2 }} When during the pendency of the Second Appeal, the appellant (defendant No.1-Dwari Swain) expired, then his LRs have been substituted in his place as appellants.
The respondent No.1 of this Second Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.57 of 1988 and he was the respondent No.1 before the First Appellate Court in the First Appeal vide T.A. No.24 of 1991.
The respondent No.2 of this Second Appeal was the defendant No.2 before the Trial Court in the suit vide T.S. No.57 of 1988 and she was the respondent No.2 before the First Appellate Court in the First Appeal vide T.A. No.24 of 1991.
3. The suit of the plaintiff (respondent No.1 in this Second Appeal i.e. Sibaram Swain) before the Trial Court vide T.S. No.57 of 1988 was a suit for declaration of right, title, interest and recovery of possession.
4. The case of the plaintiff in his suit vide T.S. No.57 of 1988 before the Trial Court was that, the suit property is the southern portion Ac.0.40 decimals of sabik Plot No.1227/1720 under sabik Khata No.65 of village Bhuinpur under Sadar Police Station of Dhenkanal district specifically described in the sketch map attached to the plaint. Page 2 of 26 S.A. No.76 of 2002
{{ 3 }} Suit sabik Plot No.1227/1720 Ac.0.81 decimals was jointly recorded in the name of Bidei Mallik and Nakhia Mallik. The said Bidei Mallik and Nakhia Mallik were possessing sabik suit Plot No.1227/1720 by distributing the same between them equally. According to such distribution, Bidei Mallik was possessing southern portion Ac.0.40 decimals out of Ac.0.81 decimals of suit sabik Plot No.1227/1720. That Bidei Mallik sold his southern portion Ac.0.40 decimals out of Ac.0.81 decimals of sabik Plot No.1227/1720 i.e. the suit property to the plaintiff and his brother Gangadhar Swain by executing and registering a sale deed in their favour and delivered possession thereof. After purchasing the southern portion Ac.0.40 decimals of sabik suit Plot No.1227/1720, the plaintiff-Sibaram Swain and his brother Gangadhar Swain mutated their said purchased suit property into their names through Mutation Case No.1526/1935 of the year 1958 and accordingly, their purchased property i.e. the suit property was mutated to their names jointly. When, the brother of the plaintiff i.e. Gangadhar Swain expired leaving behind his wife Rasabati Swain (defendant No.2) as his successor, for which, half share of Ganagadhar Swain in the suit property devolved upon his wife Rasabati Swain (defendant No.2) and accordingly, Rasabati Swain Page 3 of 26 S.A. No.76 of 2002 {{ 4 }} possessed the suit property along with the plaintiff jointly being the joint owner thereof with the plaintiff.
In a family partition between the plaintiff and the defendant No.2 through a suit for partition vide T.S. No.37 of 1968, the suit property fell into the share of the plaintiff. For which, the plaintiff is the exclusive owner and in possession over the suit property. The defendant No.1 (appellant of this Second Appeal i.e. Dwari Swain) is a very solvent and influential person and his son is serving in Indian Navy. The defendant No.1-Dwari Swain purchased the rest half portion of suit sabik Plot No.1227/1720 from Nakhia Mallik (who was the brother of the vendor of the plaintiff).
During the settlement operation, the defendant No.1 by exercising his power and money took the employees of the settlement authorities into his confidence and in order to grab the suit property illegally from the plaintiff, he (defendant No.1) fraudulently managed to indicate his name in the remarks column of the Hal R.o.R. of the Hal suit plot as an illegal possessor. After recording of such illegal note of possession in the Hal R.o.R. of the suit plot in favour of the defendant No.1, he (defendant No.1) began to dug a well inside the suit property and also collected materials for construction of a kutcha house on the same forcibly in the Page 4 of 26 S.A. No.76 of 2002 {{ 5 }} year 1981, to which, the plaintiff objected and approached the local gentlemen. Therefore, a meeting was convened and in the said meeting, the defendant No.1 admitted the title of the plaintiff over the suit property and agreed to vacate the possession of the suit property in favour of the plaintiff. But, subsequently, the defendant No.1 did not vacate the possession of the suit property in favour of the plaintiff, for which, without getting any way, the plaintiff approached the civil Court by filing the suit vide T.S. No.57 of 1988 against the defendant No.1 and arraying the defendant No.2 as proforma defendant No.2 praying for declaration of his right, title, interest over the suit property and for passing the decree of eviction against the defendant No.1 in order to evict him (defendant No.1) from the suit property and to direct him (defendant No.1) to remove the structures from the suit property and bring the suit property to its original position as it was prior to the forcible entry of the defendant No.1 into the same along with other reliefs, to which, he (plaintiff) is entitled for.
5. Having been noticed from the Trial Court in the suit vide T.S. No.57 of 1988, the defendant No.1 contested the suit of the plaintiff by filing his written statement independently denying the averments made by the plaintiff in his plaint taking his stands therein that, the suit of the Page 5 of 26 S.A. No.76 of 2002 {{ 6 }} plaintiff is not maintainable. There is no cause of action for the plaintiff to file the suit. The suit of the plaintiff is barred by law of limitation.
The specific/definite case of the defendant No.1 in his written statement is that, the plaintiff and defendant No.2 were the joint owners over the suit property, but their ownership over the suit property has already been lost due to the creation of ownership of the defendant No.1 over the same by way of prescription through adverse possession due to his continuous long possession to the same. Because, defendant No.1 is in exclusive possession over the suit property since last 50 years and he has constructed his residential house and cow-shed etc. on the same and he (defendant No.1) along with his family members are residing thereon since last 50 years continuously without any interruption from any quarter. For which, the defendant No.1 has acquired a valid title over the suit property by way of adverse possession. As such, the defendant No.1 is in possession over the entire Ac.0.81 decimals of sabik Plot No.1227/1720, because he (defendant No.1) has purchased half share of suit sabik Plot No.1227/1720 from Nakhia Mallik and as such he has been possessing the entire suit property. Accordingly, he has title over half of suit sabik plot No.1227/1720 through purchase from Nakhia Mallik and he has title through adverse possession over rest half of that Page 6 of 26 S.A. No.76 of 2002 {{ 7 }} sabik Plot No.1227/1720 i.e. over the suit property through adverse possession. Therefore, in the remarks column of the Hal R.o.R. of the suit plot, his possession has been noted. When he (defendant No.1) has acquired a valid title over the suit property by way of adverse possession, then, the plaintiff has no right, title, interest and possession on the same. For which, the suit of the plaintiff is liable to be dismissed with cost against him (defendant No.1).
6. The defendant No.2 filed her written statement separately by taking her stands therein that, the suit of the plaintiff is not maintainable, as there is no cause of action for the plaintiff to file the suit. The suit of the plaintiff is barred by law of limitation.
The specific case/plea of defendant No.2 is that, her husband- Gangadhar Swain and the plaintiff being two brothers were the joint owners over the suit property. But, as the defendant No.1 is in exclusive possession over the suit property by constructing his residential house thereon since last 40 to 50 years without any interference from any quarter, then, she (defendant No.2) including the plaintiff have lost their title in the suit property. She (defendant No.2) totally denied about the falling of the suit property in the share of the plaintiff in a suit for partition vide T.S. No.37 of 1968.
Page 7 of 26 S.A. No.76 of 2002
{{ 8 }} Therefore, the suit of the plaintiff is liable to be dismissed against her (defendant No.2).
7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 8 (eight) numbers of issues were framed by the Trial Court in the suit vide T.S. No.57 of 1988 and the said issues are:-
ISSUES
(i) Is the suit maintainable?
(ii) Is there any cause of action to bring the
present suit?
(iii) Is the suit barred by limitation?
(iv) Has the plaintiff alone got right, title and
interest over the suit land and is alone entitled to recover possession thereof as alleged?
(v) Whether the defendant No.1 acquired prescriptive title over the suit land by way of adverse possession or the possession of defendant No.1 over the suit land is permissive?
(vi) To what other reliefs he (plaintiff) is entitled for?
(vii) Whether the defendants are liable to be evicted from the suit land after delivery of possession of the suit land to plaintiff by removing the structures thereon?
(viii) Whether the plaintiff has omitted a portion of the land involved in the dispute and in possession of the defendants in fear of payment of more Court fees?
8. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendant No.1 in the suit vide T.S. No.57 of 1988, Page 8 of 26 S.A. No.76 of 2002 {{ 9 }} he (plaintiff) examined nine (9) witnesses from his side including him as P.W.3 and relied upon the documents vide Exts.1 to 8.
But, on the contrary, in order to nullify/defeat the suit of the plaintiff, the contesting defendant No.1 examined four (4) witnesses on his behalf including him as D.W.1 and exhibited series of documents from his side vide Exts.A to K.
9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues in favour of the plaintiff and against the defendants and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiff and against the defendants, the Trial Court decreed the suit of the plaintiff in part on contest against the defendant No.1 and exparte against the defendant No.2 with cost as per its judgment and decree dated 10.05.1991 and 20.06.1991 respectively and declared that, the plaintiff and defendant No.2 have joint right, title and interest over the suit land and they (plaintiff and defendant No.2) are entitled to get possession of the suit land from the defendant No.1 and if the defendant No.1 will not give delivery of possession of the suit land by removing his structures thereon within one month from the date of the judgment of the Trial Court, the plaintiff and defendant No.2 both are Page 9 of 26 S.A. No.76 of 2002 {{ 10 }} entitled to take delivery of possession of the suit land through the process of the Court by assigning the reasons that, the plaintiff has been able to establish his title along with the title of the defendant No.2 jointly over the suit property by purchasing the same from Bidei Mallik, but the defendant No.1 has not been able to establish his title over the suit property by way of adverse possession, because in his pleadings and evidence, there is no indication about the date, month or year from which, he (defendant No.1) is possessing the suit property adversely against the owners thereof denying the ownership of the plaintiff and defendant No.2, rather his possession over the suit property is permissive one, because, he (defendant No.1) as D.W.1 has deposed in the last line of his deposition by answering the questions of the learned counsel for the plaintiff that, Pitabash Swain (father of the plaintiff) had given him permission to possess the suit land, as, by that time, the plaintiff and his father were staying in joint mess and he (defendant No.1-D.W.1) has also categorically deposed in his cross-examination that, he has been possessing the suit land not adversely against the plaintiff, but as per the permission of the father of the plaintiff. For which, his possession over the suit property against the plaintiff is not adverse, rather, his possession is permissive one. But, when he (defendant No.1) is not leaving the Page 10 of 26 S.A. No.76 of 2002 {{ 11 }} possession of the suit property in favour of the plaintiff, then the joint owners thereof i.e. plaintiff and defendant No.2 are entitled for recovery of possession of the suit property from the defendant No.1 and the plaintiff and defendant No.2 are entitled for the decree of declaration of their joint title over the suit property.
10. On being aggrieved with the aforesaid judgment and decree dated 10.05.1991 and 20.06.1991 respectively passed by the Trial Court in the suit vide T.S. No.57 of 1988 in favour of the plaintiff and against the defendant No.1, he (defendant No.1) challenged the same by preferring the First Appeal vide T.A. No.24 of 1991 being the appellant against the plaintiff and defendant No.2 by arraying them as respondents.
During the pendency of the First Appeal vide T.A. No.24 of 1991, the decree holder of the suit vide T.S. No.57 of 1988 i.e. the plaintiff filed an application before the Trial Court for amendment of the judgment and decree of the Trial Court passed in that suit vide T.S. No.57 of 1988 for incorporation of the sketch map as a part of the judgment and decree of the suit vide T.S. No.57 of 1988.
As per Order No.46 dated 12.11.1993, the Trial Court allowed the said application of the decree holder (plaintiff) for amendment of the judgment and decree of the suit vide T.S. No.57 of 1988 and passed an Page 11 of 26 S.A. No.76 of 2002 {{ 12 }} order for incorporation of the sketch map, which was attached with the plaint as a part of the judgment and decree of that suit for proper clarity about the identity of the suit property by invoking power under Section 152 of the CPC, 1908 assigning the reasons that, in order to have better particulars and correct specification of the suit land, it is necessary to incorporate the sketch map appended to the plaint as a part of the judgment and decree of the suit vide T.S. No.57 of 1988.
11. After hearing from both the sides, the First Appellate Court dismissed to the First Appeal vide T.A. No.24 of 1991 of the defendant No.1 on contest as per its judgment and decree dated 27.08.2001 and 12.09.2001 respectively accepting/concurring the findings and observations made by the Trial Court in the judgment and decree of the suit vide T.S. No.57 of 1988 in favour of the plaintiff and defendant No.2 and against the defendant No.1.
12. On being aggrieved with the said judgment and decree of the dismissal of the First Appeal vide T.A. No.24 of 1991 of the defendant No.1, he (defendant No.1) challenged the same by preferring this Second Appeal being the appellant against the plaintiff and defendant No.2 by arraying them as respondents.
Page 12 of 26 S.A. No.76 of 2002
{{ 13 }} But, when during the pendency of this Second Appeal, defendant No.1 (appellant of this Second Appeal) expired, then his LRs have been substituted as appellants in his place.
13. This Second Appeal was admitted on formulation of the following substantial question of law i.e.:-
When, it is found that, the plaintiff had sought for an amendment of the decree at the execution stage without amending the plaint would such decree be amended and if so, what would be the effect of the decrees and judgments of both the Courts below?
14. I have already heard from the learned counsels of both the sides.
15. During the course of hearing of the Second Appeal, the learned counsel for the appellants filed a memo indicating two questions for formulation of the said questions as additional substantial questions of law i.e.:-
(i) Whether the learned Court below erred in not considering the admission of defendant No.2, who being successor in interest of her husband (a co-purchaser along with plaintiff) admitted the possession and title of the defendant No.1 (present appellant) over the suit property?
(ii) Whether the learned Court below committed an illegality in not considering the Ext.H, the report of Yadast prepared by a Public Officer in due discharge of his duty during current settlement and is admissible in evidence as per Section 35 of the Evidence Act?
16. The purchase of the suit property from its admitted owner Bidei Mallik by the plaintiff and his brother Gangadhar Swain (husband of the Page 13 of 26 S.A. No.76 of 2002 {{ 14 }} defendant No.2) is not under dispute. Because, defendant No.1 has admitted to the aforesaid purchase of the plaintiff and husband of the defendant No.2 in paragraph Nos.4 & 6 of his written statement.
When the defendant No.1 has admitted to the case of the plaintiff about the purchase of the suit property by the plaintiff along with his brother Gangadhar Swain (husband of the defendant No.2), then at this juncture, it will be seen, whether the concurrent findings of the Trial Court and the First Appellate Court on facts through appreciation of oral and documentary evidence that, the defendant No.1 has not become able to establish his title over the suit property by way of adverse possession is correct or not?
The defendant No.1 as D.W.1 has deposed in the last line of his deposition by answering the questions of learned counsel for the plaintiff that, <the plaintiff along with his father Pitabash Swain were staying in joint mess and during that time, the father of the plaintiff had given permission to him (defendant No.1) to possess the suit land and he (defendant No.1) has been possessing the suit land not adversely against the plaintiff, but getting permission from the father of the plaintiff.= Page 14 of 26 S.A. No.76 of 2002 {{ 15 }} There is also no pleadings and evidence in the record on behalf of the defendant No.1 to show, on which particular date, he (defendant No.1) entered into the possession of the suit property and on which day, he possessed the suit property as the owner of the same denying the title of the plaintiff and defendant No.2 over the suit property and on which day, his possession over the suit property became adverse to the plaintiff and defendant No.2 and on which day, his adverse possession in the suit property matured to his title.
17. The law in this regard concerning the establishment of title of the defendant over the suit property through adverse possession like the claim of the defendant No.1 in the suit/appeal at hand has already been clarified in the ratio of the following decisions of Hon'ble Courts and Apex Court:-
(i) 2016 (II) CLR (S.C.) 537--Prem Nath Khanna & Ors. Vrs. Narinder Nath Kapoor (dead) through LRs & others--(Paras 18 & 22)4Adverse Possession vis-à-vis Permissive Possession4 Mere Possession for long time does not convert permissive possession into adverse possession.
(ii) 2009 (III) Civ.L.T. (S.C.) 2804 L.N.Aswathama and another Vrs. P.Prakash--(Para 17)--Adverse Possession--
Long and continuous possession by itself would not constitute adverse possession, if it was either permissive possession or possession without animus possidendi.
(iii) 2019 (II) CLR 1001--Madhusudan Mohapatra and others (since dead through his LRs) Vrs. State of Orissa Page 15 of 26 S.A. No.76 of 2002 {{ 16 }} and another--(Para 14)--Adverse Possession4Adverse Possession versus Permissive Possession4 Permissive possession can never become adverse unless hostile animus is expressed at a particular time to the knowledge of the actual owner. Here the element of hostile animus is absent.
(iv) (1994) 6 SCC-591--Thakur Kishan Singh Vrs. Arvind Kumar & (2007) 6 SCC-59--P.T.Munichikkanna Reddy and others Vrs. Revamma and others4Adverse Possession4 In cases, where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that, the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession.
(v) 2015 (I) CLR 752--Rama Chandra Patra (Dead) after him, his LRs Chittaranjan Patra and others Vrs. Raghunath Jew and others--(Para 11)--Limitation Act, 19634Article 654 If possession is permissive at the inception, it does not become adverse, unless by some positive overt act, it is indicated that, such possession became adverse to the knowledge of the owner.
(vi) 2017 (3) C.C.C. 509 (S.C.) & 2017 (II) CLR (S.C.) 1097-- Dharampal Vrs. Punjab Wakf Board and others (paragraphs 39 & 40)4Adverse Possession4 Only averment that, defendant was in possession through his father since 1953, that itself do not constitute plea of adverse possession.
Because, date from which, possession became adverse to Plaintiff not pleaded, likewise date of ripening of adverse possession also not pleaded.
(vii) 2022 (I) C.C.C. Page-563 (Rajsthan)-Sanjay Kumar Jaluka Vrs. Jagdish Prasad Agarwal and another-Indian Limitation Act, 1963- Article 64 & 65--Adverse Possession4 When the plaintiff neither by way of documentary and/or oral evidence has even claimed that, he was in possession of property as owner and has not even disclosed point of time, from which his possession became adverse to the true owner. But, entire emphasis of the plaintiff in plaint has been, he being in long possession.
Page 16 of 26 S.A. No.76 of 2002
{{ 17 }} Held, merely being in possession of property for long time by itself cannot create adverse possession. The plea of adverse possession rightly rejected.
(viii) I (2009) Civil Law Times 120 (UK)--Kalawati (Since deceased) through LRs. and anr. Vrs. Girish Shram (Since Deceased) through LRs. and Anr.--(Paras 8 &
10)--Adverse Possession4When in written statement of the defendant, it is nowhere stated, since which date the defendant is in possession and when possession became adverse to true owner4the plea of adverse possession fails.
(ix) 1999 (3) O.R.M.-2.40 (Ori)--Radha Kanta Sahu vrs. Bijay Pratap Singhdeo and others--Indian Limitation Act, 1963--Article 64 and 65- Adverse possession- Note of possession in R.O.R.- There is nothing to prove possession. R.O.R. of the last settlement noting, the remarks about forcible possession in favour of the Plaintiff without mentioning the date, proves her possession without title. There has been no element of adverse possession for acquiring a title to the property, as long possession cannot enure to the benefit of the plaintiff for acquiring title by adverse possession.
(x) 2018 (I) CLR-Page 1221--Lakhapati Dharua Vrs. Dullav Sahu and others--Indian Limitation Act, 1963- Article 64 & 654Adverse Possession4Mentioning the name in remark column of M.S. R.O.R. is not sufficient- mere possession of the suit land for long time is not sufficient to hold that, the defendant has perfected title by way of adverse possession, unless the classical requirements of adverse possession i.e. nec vi, nec clam, nec precario are pleaded and proved.
18. When, it is the settled propositions of law as per the ratio of the aforesaid decisions that, permissive possession of a defendant over the suit property like the defendant No.1 in the suit at hand can never be adverse at any point of time even if such permissive possession is more than 100 years and when in absence of any pleadings and evidence about Page 17 of 26 S.A. No.76 of 2002 {{ 18 }} the date of starting of possession over the suit property and date of possession of the suit land adversely as the owner of the same denying the title of the true owner as well as the date of ripening of adverse possession to title, the claim of title through adverse possession over the suit property raised by any defendant like defendant No.1 in the suit at hand cannot be sustainable under law, then at this juncture, the question of interfering with the concurrent findings of the Trial Court and the First Appellate Court against the defendant No.1 disregarding the claim of title of the defendant No.1 over the suit property through adverse possession cannot be inacceptable under law. For which, in other words, the concurrent findings of the Trial Court as well as First Appellate Court on facts through appreciation of oral and documentary evidence of the parties that, the plaintiff and defendant No.2 are the joint owners of the suit property have become acceptable under law.
19. Now, it will be seen, whether an order for amendment of the judgment and decree of the suit vide T.S. No.57 of 1988 passed by the Trial Court as per Order No.46 dated 12.11.1993 for incorporation of the sketch map (which was appended to the plaint) for clarification of the suit schedule property as a part of the judgment and decree during the Page 18 of 26 S.A. No.76 of 2002 {{ 19 }} pendency of the First Appeal vide T.A. No.24 of 1991 is sustainable under law?
It appears from the judgment of the Trial Court that, in the 7th and 11th line thereof, it has been specifically stated by the Trial Court that, the suit land is Ac.0.40 decimals being the southern portion of sabik suit plot No.1227/1720, which has been specifically shown in the sketch map attached to the plaint.
At the time of passing of the judgment of the suit, the Trial Court in its ordering portion failed to treat the sketch map appended to the plaint as a part of the decree of that suit for better particulars as well as correct specification of the suit land.
20. When the learned counsel for the appellant contended that, the aforesaid amendment of the decree by the Trial Court as per Order No.46 dated 12.11.1993 for treating the sketch map as a part of the decree was beyond the scope of Section 152 of the CPC, 1908, because, according to him, such mistake was not a clerical or arithmetical mistake, to which, learned counsel for the respondent No.1 (plaintiff) vehemently objected contending that, the First Appellate Court has accepted such correction of the decree as proper discarding the above arguments raised by the learned counsel for the appellant (defendant No.1) by placing reliance in the ratio Page 19 of 26 S.A. No.76 of 2002 {{ 20 }} of the decision reported in 1984 (I) OLR 650 clarifying that, the Trial Court has not committed any error allowing the amendment of the decree, because the same was necessary in order to have better particulars as well as for correct specification of the suit land, as Section 152 of the CPC, 1908 empowers the Court for rectification of arithmetical mistakes, accidental errors, slips or omissions in the judgment and decree by its own motion or on the application of any of the parties to the litigation.
On this aspect, the propositions of law has already been clarified in the ratio of the following decisions of the Hon'ble Courts and Apex Court:-
(i) I (2003) Civ. L.T. 571 (A.P.)4Bobbala Muthyam Reddy Vrs. Bobbala Rama Chandra Reddy & Ors.4CPC, 19084 Section 1524Amendment of decree and suit Sketch be drawn along with decree: Correction of Clerical Mistakes in the Judgments, Decrees or Orders: Lower Court overruled objection of the petitioner and respondent No.3 to 7 and allowed the application holding sketch filed along with plaint as part and parcel of plaint and plaint sketch to be attached to decree.
(ii) I (2010) Civ.L.T. 495 (Jharkhand)4Lokmanya Prasad Vrs. Jamila Khatoon & Ors.4It was within competence and jurisdiction of Executing Court under Section 152, CPC, to rectify such error in decree by adding description of suit premises by reference to its boundary as mentioned in body of judgment.
(iii) I (2011) Civ.L.T. 264 (Calcutta)4Ashok Vijaya Vrs.
Jasbir Singh Sabarwal & Ors.4Any unintentional mistake can be rectified by way of Sections 152, 153, CPC. If application is allowed, better description of suit premises comes to Court for execution of decree and such correction or Page 20 of 26 S.A. No.76 of 2002 {{ 21 }} alteration by impugned order will not cause any prejudice to judgment debtor/OP.
(iv) 2003 (1) C.J.D. (SC) 30--Lakshmi Ram Bhuyan Vrs. Hari Prasad Bhuyan & others 2003 (I) CCC (S.C.) 4, I (2003) Civ.L.T. 67 (S.C.) & 2003 (1) C.J.D. (S.C.) 45--Pratibha Singh and another Vrs. Shanti Devi Prasad and another Section 1524The successful party has no other option but to have recourse of Section 152 of CPC which provides for correction of clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the application of any of the parties. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission.
(v) 2017 (I) OLR--3384Leeladhar Kejariwal Vs. Ghanashyamdas Tibrewal & another4Section 1524When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record can very well be cured. After all, a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the Code depending upon the facts and circumstances of each case4which of the two provisions would be move appropriate, just and convenience to invoke.
(vi) 2001 (4) SCC 181--Jayalakshmi Coelho Vs. Oswald Joseph Coelho4A mistake of the Court, which may prejudice the cause of any party must be rectified.
(vii) (2006) 1 SCC 380--U.P.SRTC Vrs. Imtiaz Hussain4 (Para 8)4Section 1524An act of Court shall prejudice no man. For which, an unintentional mistake of the Court, which may prejudice, the cause of any party must and alone could be rectified.
21. Here in this suit at hand, when the Trial Court has specifically reflected in the beginning of its judgment that, the suit property has been Page 21 of 26 S.A. No.76 of 2002 {{ 22 }} specifically shown in the sketch map attached to the plaint, then at this juncture, the intention of the Trial Court from the very beginning of the writing of the judgment was that, the sketch map attached to the plaint is a part of the suit land, in which, the detailed identity of the suit land has been reflected, but in the ordering portion of that judgment, the Trial Court inadvertently/mistakenly due to the accidental slip, failed to indicate/reflect the sketch map appended to the plaint as a part of the judgment and decree of that suit. For which, such inadvertent mistake due to accidental slip/omission for non-inclusion of the sketch map as a part of the judgment and decree was the mistake of the Court, but not the mistake of the plaintiff. Therefore, the plaintiff is not at all responsible for the above genuine and bona fide accidental slip, omission/mistake of the Court.
So, in view of the propositions of law enunciated in the ratio of the aforesaid decisions, the rectification of such accidental slip as per Order No.46 dated 12.11.1993 by the Trial Court for an amendment of the decree in order to treat the sketch map attached to plaint as a part of the decree of that suit vide T.S. No.57 of 1988 cannot be held as erroneous or illegal in any manner. The acceptance to the same by the First Appellate Court is also proper and acceptable under law.
Page 22 of 26 S.A. No.76 of 2002
{{ 23 }}
22. Now, the question arises, whether the admissions of the defendant No.2 to the title of the defendant No.1 over the suit property shall create the title of the defendant No.1 on the same or not?
It is the settled propositions of law that, title over the suit property shall be created in three ways i.e. (i) through title deed (ii) through inheritance or succession (iii) through adverse possession.
23. Here in this suit at hand, there is no title deed in favour of the defendant No.1 for creation of his title over the suit property.
The defendant No.1 is not claiming his title over the suit property through inheritance or succession.
The claim of title of defendant No.1 over the suit property through adverse possession has already been negatived due to the non-fulfillment of the essential requisites/criterias of adverse possession.
So, the question of creation of title of the defendant No.1 over the suit property on the basis of the admissions of the defendant No.2 does not arise.
On this aspect, the propositions of law has already been clarified in the ratio of the following decisions of the Hon'ble Courts and Apex Court:-
Page 23 of 26 S.A. No.76 of 2002
{{ 24 }}
(i) 2023 (4) CCC 2254Biplab Bose Vs. Mritunjoy Bose and Ors.4(Para 7)4Title cannot be conferred on the basis of admission.
(ii) IV (2012) Civ.L.T.-114 (DB) (Chhattisgarh)4Atal Shrivastava Vrs. Devprasad & Anr.4(Paras 23 & 24)4 Consent letter cannot be relied upon, as it, neither conveys little nor creates any interest in favour of plaintiff over the suit land.
(iii) AIR 1966 (S.C.) 605--Ambika Prasad Thakur and others etc. Vs. Ram Ekbal Rai (dead) by his legal representatives and others etc.4Title cannot pass by mere admission.
(iv) (2006) 12 SCC 552--Avtar Singh and others Vs. Guridal Singh and others4(Para 8)4Admission does not create any title.
(v) ILR 1943 (Calcutta) 790--Mathuramohan Saha & Ors. Vrs. Ram Kumar Saha and Chittagong District Board4 Title to land cannot pass by a mere admission.
So, due to non-fulfillment of any of the above essentials out of three by the defendant No.1 for establishing his title over the suit property, the title of the defendant No.1 over the suit property cannot be established only through the admissions of the defendant No.2 to the title of the defendant No.1 on the same.
24. Now, it will be seen, whether the learned Court below has committed any illegality in not considering Ext.H (the Amin's report in the Yadast during settlement operation) is concerned;
when it is the own admission of the defendant No.1 as per his own depositions as D.W.1 on oath that, he (defendant No.1) is in possession Page 24 of 26 S.A. No.76 of 2002 {{ 25 }} over the suit property through permission given by the father of the plaintiff during the jointness of the plaintiff and his father and when he (defendant No.1) has been possessing the suit property not adversely against the plaintiff, but through permission, then at this juncture, the Ext.H (Amin's report prepared by the Settlement Authorities during the stage of Yadast) cannot assist the defendant No.1 in any manner for establishing his title over the suit property.
25. On analysis of the laws concerning the substantial question of law and by applying the ratio of the aforesaid decisions along with the concurrent findings on facts arrived by the Trial Court as well as by the First Appellate Court after appreciating the oral and documentary evidence of the parties, it is held that, the judgment and decree passed by the Trial Court and confirmation to the same by the First Appellate Court against the defendant No.1 are not erroneous in any manner, for which, the question of interfering with the same through this Second Appeal filed by the appellant (defendant No.1) does not arise.
Therefore, the Second Appeal filed by the appellant (defendant No.1) must fail.
Page 25 of 26 S.A. No.76 of 2002
{{ 26 }}
26. In the result, the Second Appeal filed by the appellant/defendant No.1 (who has been substituted by his LRs) is dismissed on contest, but without cost.
The judgments and decrees passed by the Trial Court in T.S. No.57 of 1988 as well as by the First Appellate Court in T.A. No.24 of 1991 respectively in favour of the plaintiff and defendant No.2 and against the defendant No.1 are confirmed.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
04th April, 2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Apr-2024 14:30:59 Page 26 of 26 S.A. No.76 of 2002