Orissa High Court
Maheswar Rout And Others vs Golakh Rout And Others on 19 January, 2018
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.315 of 1990
From the judgment and decree dated 1.1.90 and 7.9.90 respectively
passed by Sri S.P. Raju, learned Subordinate Judge, Athagarh in T.A. No.1
of 1987 confirming the judgment and decree dated 16.12.86 and 24.12.86
respectively passed by Sri J.P. Das, learned Munsif, Athagarh in T.S. No.14
of 1982.
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Maheswar Rout and others .................. Appellants
--versus--
Golakh Rout and others ..................... Respondents
For Appellants : Mr. Budhiram Das, Advocate
For Respondents : None
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :12.01.2018 │ Date of Judgment:19.01.2018
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Dr. A.K. Rath, J.Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title and recovery of possession.
2. The dispute pertains to Ac.0.01 dec. of land appertaining to khata no.33, plot no.559 of village-Dahisara, Dist.-Cuttack.
3. Plaintiffs and defendants are the descendants of a common ancestor-Chaitan. Chaitan died leaving behind him three sons, namely, Satyabadi, Jayananda, plaintiff no.2 and Maheswar, plaintiff no.1. The defendant nos.1, 5, 6 and 7 are the sons of Satyabadi. Defendant nos.2 to 4 are son, wife and daughter of defendant no.1. According to the plaintiffs, after death of Chaitan, his eldest son, Satyabadi, separated from other two brothers. Maheswar and Jayananda remained joint. The properties allotted to Satyabadi had been recorded separately in his favour in Nayabadi settlement of the year 1949 and current settlement of the year 2 1963. The names of other two brothers had been recorded jointly in respect of their properties allotted to them. In the year 1963, Satyabadi wanted to exchange his plot no.560 with the plaintiffs for an area of Ac.0.03 dec. from northern side of plot no.559 for construction of a house. The residential house of Maheswar and Jayananda stands over plot no.559, area Ac.0.04 dec. The rest Ac.0.01 dec. was used by the plaintiffs. A thatched house exists over the same (disputed plot). After death of Satyabadi, his sons resided in the house constructed by their father over plot no.559. The plaintiffs are in possession of plot no.560. Taking advantage of old age of plaintiff no.1, defendant nos.1 to 4 forcibly occupied an area of Ac.0.01 dec. for which a proceeding under Sec.144 Cr.P.C. was initiated against them. The prohibited order passed under Sec.144 Cr.P.C. was made absolute and the same was converted to a proceeding under Sec.145 Cr.P.C. The Executive Magistrate declared the possession of the defendant nos.1 to 4 over the suit land. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
4. The defendants entered contest and filed written statement denying the assertions made in the plaint. The specific case of the defendants was that Satyabadi separated from his brothers both in mess and property. Their respective shares were correctly recorded in Nayabadi settlement. The current ROR was not in accordance with the possession and contrary to the records of Nayabadi settlement. The residential house of the defendants situates over plot no.559 much prior to 1963. The alleged exchange is false. It was further pleaded that they were in possession over the suit land before 1963 and in possession of the house constructed over the said plot. They perfected title by way of adverse possession continuously and uninterruptedly to the knowledge of the plaintiffs.
5. On the interse pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary. Learned trial court negatived the plea of exchange of properties between the parties in absence of any documentary evidence. It held that the 3 defendants are in possession of a portion of plot no.559 for more than statutory period, though the same had been recorded in the names of the plaintiffs in current settlement of the year 1963. The defendants had perfected title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Athagath in T.A. No.1 of 1987, which was eventually dismissed. It is apt to state here that during pendency of T.A. No.1 of 1987, plaintiff no.2-appellant no.2 died. The legal heirs had been substituted. During pendency of the second appeal, the appellant no.2 and respondent no.5 died. The legal heirs of appellant no.2 are already on record and the legal heirs of respondent no.5 have been substituted as respondent nos.5(a) to 5(e).
6. The second appeal was admitted on the following substantial questions of law.
"Whether the plea of adverse possession advanced by the defendants was correctly accepted by the courts below and whether there was any acceptable evidence in support of this plea ?
7. Heard Mr. Budhiram Das, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the appellants. None appeared for the respondents.
8. Mr. Das, learned counsel for the appellants, submitted that in absence of any evidence as to when the defendants came to possess the suit land, the courts below committed serious illegality in declaring the title of the defendants over the suit land by means of adverse possession. The defendants failed to substantiate the plea of adverse possession. Neither there is any pleading nor evidence that the defendants have perfected title by way of adverse possession.
9. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal 4 Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that "the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor".
10. On a threadbare analysis of the evidence on record and pleadings, both the courts concurrently held that the defendants are in possession of the suit land for more than the statutory period peacefully, continuously and with the hostile animus to the plaintiffs and as such perfected title by way of adverse possession. There is no perversity or illegality in the same. The substantial questions of law have been answered accordingly.
11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 19th January, 2018/Basanta