Orissa High Court
Pragnya Rout vs Hemaprava Ray And Ors. on 12 August, 2005
Equivalent citations: AIR2006ORI21, 100(2005)CLT746, 2005(II)OLR330, AIR 2006 ORISSA 21, 2006 (2) AKAR (NOC) 164 (ORI), 2006 A I H C 871, (2005) 2 CLR 460 (ORI), 2005 (2) CLR 460, (2006) 38 ALLINDCAS 699 (ORI), (2005) 2 ORISSA LR 330, (2005) 100 CUT LT 746
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. Defendant No. 5 in Title Suit No. 280 of 2000 of the Court of the 2nd Addl. Civil Judge (SD), Cuttack has preferred this appeal challenging the judgment and decree dated 28th February, 2003 and 15th March, 2003 respectively. The suit was filed by Hemaprava Ray, present respondent No. 1, seeking reliefs as follows :
"(A) The exclusive title of the plaintiff and pro forma defendant Nos. 6 to 11 in respect of the suit land described in Schedule-A of the plaint be declared. Possession of the six shop rooms standing on the eastern border of the suit plot be delivered to the plaintiff and pro forma defendants 6 to 11 by evicting defendant Nos. 1 to 5 and the plaintiffs' possession of (sic) the rest of the suit land be confirmed. In case she is found disposed (sic) from any part thereof, she be restored to possession through Court.
(B) The record of right in respect of the suit land finally published on 8.1.1999 be declared to be wrong and not binding against the interest of the plaintiff and pro forma defendants 6 to 11.
(C) Defendant Nos. 1 to 5 be permanently restrained from disturbing possession of the plaintiff and pro forma defendant Nos. 6 to 11 on the suit land at any time in future.
(D) Cost of the suit be decreed in favour of the plaintiff against the defendants Nos. 1 to 5.
(E) The plaintiff be given any other relief/reliefs to (sic) which the Court thinks fit and proper."
2. In course of hearing of the petition filed by the respondents for appointment of a receiver in respect of the suit property, Mr. R.K. Mohanty and Mr. B.H. Mohanty, learned counsel for the parties, agreed that the appeal which is pending for the last two years might be heard and disposed of on merits. Accordingly the appeal was listed for hearing.
3. Shorn of unnecessary details, the relevant pleadings of the parties are as follows :
According to the plaintiff-respondent No. 1, her husband late Suresh Chandra Ray had purchased the disputed property by a registered sale deed dated 26th October, 1959 from one Chiranjilal. The said property comprised of Ac. 0.190 decimals appertaining to Hal Plot No. 1411, Hal Khata No. 273, Unit No. 22, Mirkamal Patna, P.S. Mangalabag situated in Mouza Cuttack Town. The land was a part and parcel of Sabak Plot No. 2660 having a total area of Ac. 1.600 decimals. Out of the said Ac. 1.600 decimals, Chiranjilal had also alienated some land in favour of pro forma defendant Nos. 6 to 11, but then the same is not the subject-matter of the suit. Suresh Chandra Ray after purchasing the aforesaid land, owned and possessed the same as the absolute owner thereof. He had developed the same and constructed a pucca boundary-wall on the North, South and West of his land. He had obtained permission from the Cuttack Development Authority on 20th August, 1985 for constructing a building, but unfortunately before the construction work could commence he expired on 19th September, 1992. After the death of Suresh, plaintiff-respondent No. 1 and her son Biswajit in the year 1995 constructed six pucca rooms with asbestos roof on the eastern side of suit plot intending the same to be let out as shop-rooms to different tenants. The said structure was assigned holding No. 551/A-601 of Ward No. 22 by the Cuttack Municipality. As ill luck would have it, Biswajit, son of the plaintiff, also died thereafter leaving his mother plaintiff-respondent No. 1, brother-defendant No. 6 and sisters-defendant Nos. 7 to 11 as the ultimate successors to the suit property.
Due to sad demise of the husband and son in close proximity, it is averred, the plaintiff, a widow, could not take any steps for further development of the disputed land and the same remained in the possession of the tenants. During settlement operation the disputed land was recorded in the name of plaintiffs late husband Suresh Chandra Ray and draft record-of-rights was published. Taking advantage of the fact that the plaintiff and her children were staying away from Cuttack such absentee landlord, it is alleged in the plaint, defendant No. 4-respondent No. 5 (Bijoy Kumar Rout) tried to forcibly collect rent from the tenants in respect of the aforesaid shop-rooms. Refusal by the tenants to pay rent to him enraged him and he resorted to muscle power. By exploding crude bombs, he threatened the life and property of the tenants. It was further alleged in the plaint that several criminal cases had been initiated against defendant No. 4 and his associates on the basis of information lodged by the tenants. In the year 1996 defendant No. 4 again threatened the tenants and coerced them to vacate the shop-rooms which fact was also reported to police by filing FIRs. Finally on 28th June, 1996 defendant No. 4 and his anti-social associates forcibly broke open the aforesaid shop-rooms at night, ransacked the same and took over forcible possession thereof. Thereafter defendant No. 4 executed three agreements in favour of defendant Nos. 1 to 3-respondent Nos. 2 to 4 to sell the suit land to them. On the strength of the said agreements, three collusive suits, being T.S.Nos. 109, 110 and 111 of 1992 were filed in the Court of the Civil Judge (SD), Cuttack by defendant Nos. 1 to 3 for specific performance of contracts against defendant No. 4. Defendant No. 4 appeared in Court in the said suits and entered into compromise. On the basis of compromise the suits were decreed directing the said defendant to execute the sale deeds in favour of the respective plaintiffs within ten days. Defendant No. 4 chose not to execute the sale deeds in terms of the compromise decrees and the said plaintiffs got the sale deeds executed and registered through Court. It was specifically averred in the plaint that as defendant No. 4-respondent No. 5 had no title to the suit land, the collusive agreements and collusive decrees passed without impleading the plaintiff and other real owners of the property had no legal effect.
After execution of the sale deeds through Court on the basis of the aforesaid collusive decrees, defendant Nos. 1 to 3 filed applications before the Settlement Commissioner for recording their names in respect of the lands and the Commissioner directed the Settlement Officer to record the names of defendant Nos. 1 to 3. The Settlement Officer also without issuing any notice to the real owners of the lands in question, on the basis of the collusive decrees deleted the name of Suresh Chandra Ray from the draft R.O.R. and recorded the names of defendant Nos. 1 to 3. It is further alleged that after successfully stage-managing the affairs, defendant No. 4-respondent No. 5 on 8th May, 2000 obtained three registered sale deeds from defendant Nos. 1 to 3 in the name of his wife, defendant No. 5, who is the appellant in the present appeal.
Several other allegations with regard to the criminal activities of defendant No. 4 have also been narrated in the plaint, but the same are not very much relevant for the purpose of this appeal.
4. The present appellant who was defendant No. 5 in the Court below alone filed written statement. Defendant Nos. 1 to 4 did not contest the suit and were set ex parte.
According to defendant No. 5, the suit by the plaintiff alone was not maintainable. Even otherwise, it was averred, the plaintiff being not in possession of the suit land for more than twelve years prior to the institution of the suit, her title was lost by operation of law. It was also averred that in absence of a prayer for declaring the sale deeds executed in favour of defendants 1 to 3 invalid, the plaintiff was not entitled to a decree for declaration of her title. It was further averred that the sale deed dated 26th October, 1959 executed in favour of Suresh was a nominal one and was not acted upon. The allegation that defendant No. 4 was an anti-social element was stoutly repudiated and at the same time it was asserted that the agreements for sale entered into between defendant No. 4 and defendant Nos. 1 to 3 were valid documents and decrees passed in the suit for specific performance of contracts were also valid and binding.
The recording made by the Settlement authorities on the basis of such decrees was perfectly legal and valid. The allegations of fraud and collusion were stoutly denied. In substance, according to defendant No. 4, without seeking a prayer for declaration that the decrees dated 28th April, 1992 passed in Title Suit Nos. 109, 110, and 111 or 1992 respectively by a competent Civil Court invalid or inoperative, the suit for declaration of title of the plaintiff simpliciter was not maintainable.
According to defendant No. 5, the suit land was an intermediary estate of Sarthalal Mishra and others, which had vested in the State in consonance with a notification under the Orissa Estates Abolition Act. Though the plaintiff claimed that her husband Suresh had purchased the suit land from Chiranjilal who had purchased the same from the ex-intermediary prior to vesting, since after vesting of the estate the land was not settled with Suresh in consonance with the provisions of the O.E.A. Act, no right created in his favour. According to the said defendant, vesting of the estate in the State in consonance with the O.E.A. Act being free from all encumbrances, the right, title and interest of all persons were obliterated on the date of such vesting. Suresh, in consonance with the provisions of the O.E.A.Act, never applied for settlement of the land in his favour. Thus after the vesting no right, title or interest was conferred upon him and so also on the plaintiff. It was further averred that the suit land was never possessed by Suresh, or plaintiff or any of the legal representatives of Suresh and the same was lying vacant and the father of defendant No. 4 had entered into possession thereof. The father of defendant No. 4 and thereafter defendant No. 4 had been exercising their absolute right of ownership and possession of the suit land, without any interruption and therefore by operation of law of limitation defendant No. 4 had perfected his title by adverse possession. Thus he had the right to enter into agreements with defendants 1 to 3 for sale of the said lands. The sale deeds were valid documents and so also the decrees passed by the Civil Court in Title Suit Nos. 109, 110 and 111 of 1992 and the subsequent alienation. Accordingly defendant No. 5 prayed that the suit should be dismissed.
5. On the basis of the pleadings of the parties, the trial Court framed four issues. The plaintiff got examined six witnesses and exhibited forty-one documents in support of her case. At the other hand, defendant No. 5 got examined four witnesses and exhibited one document. The trial Court after vivid discussion of the evidence, both oral and documentary, arrived at the following conclusions :
Admittedly one Sarthalal Mishra was the ex-intermediary of the estate of which the disputed land was a part. In the year 1942 by registered sale deeds the said ex-intermediary had transferred an area of Ac. 1.600 decimals in favour of Chiranjilal. By virtue of that sale deed, Chiranjilal had acquired valid right, title and interest in respect of the land and possessed the same till 1959 when he transferred a portion of that land in favour of Suresh, vide registered sale deed dated 26th September, 1959 (Ext. 2). Chiranjilal was neither an intermediary nor a tenant and his rights were not affected consequent upon vesting of the estate in the State. On the basis of the draft record-of-rights, Ext. 5, the possession of Suresh till 1985 was very much apparent, inasmuch as the document revealed that the suit land stood recorded in the name of Suresh in Government records. The land being lowly situated remained submerged in water in most part of the year and, as such, constructive possession of Suresh was sufficient since possession follows title. Suresh had also sought permission from the Cuttack Development Authority for constructing a double-storeyed building on the suit land and had submitted a detailed plan and estimate for approval, vide Ext.30. Biswajit, son of Suresh, had constructed some rooms on the disputed land and a Municipal Holding had been assigned. Electricity installation had also been made as would be evident from Ext.3. The draft record-of-rights, Ext.5, revealed that the land stood recorded in the name of Suresh. Ext.20, an Amin's report, also revealed that Suresh was the original recorded owner. On the basis of all these materials and other evidence, it was held that no person other than Suresh was the title holder and owner of the suit land and that the defendants had no legal right over the same.
Discussing the evidence adduced by the defendants, the trial Court observed that mere possession without a claim of right for however long a time it may was not sufficient to create adverse possession and as defendant No. 4 did not know that he was occupying somebody else's land and even did not know who was the owner of that land, his mere possession would not be sufficient to claim adverse possession. If according to defendant No. 5 her husband defendant No. 4 claimed adverse possession against the State in respect of the suit land, she had to prove such hostile possession for more than thirty years which she had not done. The statement made by defendant No. 5 were observed to be prevaricating in order to suit her purpose to grab the property. On the basis of such observations and disbelieving the plea taken by defendant No. 5, the trial Court held that no adverse possession was perfected by defendant No. 4 and therefore she could not claim any title by virtue of the sale deed executed in her favour. The trial Court also held that defendant No. 4 had no right to enter into any agreement to alienate the suit property in favour of defendants 1 to 3 and the decrees passed by the civil Court in earlier Title Suit Nos. 109, 110 and 111 of 1992 were the result of collusion inter se between the parties and the same were not binding upon any of the parties. It was further held that correction of the record-of-rights in consonance with the aforesaid decrees was not proper. The trial Court came to the categorical conclusion that defendant No. 4 had forcibly entered into the shop-rooms on the suit land which had been constructed by the plaintiff/ her son, had been collecting rent from the tenants inducted therein and such forcible acts could not give rise to a presumption that defendant No. 4 had acquired title to the suit property as the defence had failed to prove that defendant No. 4 had been possessing the disputed land for more than the statutory period. Thus the suit land and the house existing thereon could not be considered to be that of defendant No. 4 and the contesting defendants had also no right, title or interest in respect of the same. The possession of the defendants 4 and 5 was considered to be unlawful and unauthorized and it was held that defendant No. 4 and others excepting the pro forma defendants were rightly to be evicted from the suit land. On the basis of such conclusions, the suit was decreed on contest against defendant No. 5 and ex parte against defendant Nos. 1 to 4. The right, title and interest of the plaintiff and pro forma defendant Nos. 6 to 11 were declared over the shop-rooms standing on the suit land and possession thereof was directed to be delivered to the plaintiff and pro forma defendants 6 to 11 within six months from the date of the judgment.
6. Before delving into the inter se disputes, it would be prudent to note that possession is prima facie a proof of title, and a previous possession though without title will constitute a good foundation for a suit for eviction of a person who is equally a trespasser and has no better title to the disputed property (see Bodha Ganderi v. Ashloke Singh, AIR 1927 Patna 1). As between two persons who are unable to make out valid title, one who is in possession and has been in possession for several years, if dispossessed by another who had no better title than the person whom he dispossesses, the person who was in possession earlier is entitled to be restored to possession.
In the touch-stone of the aforesaid position of law, let us now proceed to analyse the arguments.
7. The first ground on which Mr. P. Mohanty, learned counsel for the appellant, wants to attack the impugned judgment is that the trial Court acted illegally and with material irregularity in holding that Chiranjilal had acquired proprietary right held by the ex-intermediary and that he was never a tenant under the said ex-intermediary nor was the exclusive owner of the suit land. To substantiate the said submission he submitted that under Ext. 1, the registered sale deed dated 28th September, 1942, what was transferred by the ex-intermediary in favour of Chiranjilal was "KHARIDA JAMABANDI MADHYA SATWADHIKARI" right. The registered sale deed dated 26th October, 1959, Ext.2, also reveals that Chiranjilal had alienated said KHARIDA JAMABANDI MADHYA SATWADHIKARI right in favour of Suresh Chandra Ray, the predecessor-in-interest of the plaintiff. Relying upon the final report on the Revisional Settlement prepared by W.W. Dalziel, Mr. P. Mohanty submitted that the term "MADHYA SATWADHIKARI" means and connotes a tenure holder and a tenure holder can never be a tenant. He has to be a proprietor or sub-proprietor. A tenure is an estate as has been defined in Section 2(g) of the Orissa Estates Abolition Act (hereinafter referred to as the OEA Act). He submitted that even if it is presumed that in the year 1959 the predecessor-in-interest of the plaintiff had acquired a valid title to the suit property it was only a tenure. The tenure having vested in the State in consonance with the Notification issued under Section 3(1) of the OEA Act, unless the same was settled in favour of the predecessor-in-interest of the plaintiff, the plaintiff could not maintain the suit. For settlement of a tenure or an estate, the remedy was under the OEA Act and thus the suit was not maintainable.
8. To further elucidate such submission, Mr. P. Mohanty submitted that the plaint is devoid of any pleadings with regard to the status of the plaintiff. It is not specifically pleaded as to whether the vendor Chiranjilal possessed any tenancy right under the ex-intermediary, nor has any evidence been led to the effect that the husband of the plaintiff had derived the right of a tenant on the basis of the registered sale deed, Ext.2, and that he had become a tenant under the State after the vesting in consonance with Section 8(i) of the OEA Act.
9. Referring to the finding arrived at by the trial Court that the husband of the plaintiff was not a tenant, Mr. P. Mohanty submitted that the said finding having not been challenged by filing a Cross Objection as required under Order 41, Rule 22 CPC, the plaintiff cannot put forth the claim that her husband was a tenant under the ex-intermediary and his tenancy right was protected.
10. In reply to the aforesaid contentions of Mr. P. Mohanty, Mr. B.H. Mohanty, learned counsel for plaintiff-respondent No. 1, submitted that the property in dispute is a part and parcel of an intermediary estate. The ex-intermediary alienated the suit property in favour of one Chiranjilal. The said Chiranjilal by means of the registered sale deed Ext.2 had alienated the suit property in favour of the husband of the plaintiff. He had also transferred lands in favour of several others. According to Mr. B.H. Mohanty, from the date of his purchase, Suresh, husband of the plaintiff, was in exclusive possession of the suit land. He had constructed pucca boundary walls on North, South and West of the suit land. He had obtained permission from the Cuttack Development Authority on 20.8.1985, vide Ext.30, for construction of a building on the suit land, but before he could start with construction, unfortunately he died on 19.9.1992. After death of Suresh, his widow the plaintiff and son Biswajit constructed six pucca rooms on the suit land in the year 1995. The premises was assessed to municipal tax under Holding No. 551/A-601, Ward No. 22 of Cuttack Municipality. The holding stands in the name of Suresh, as would be evident from the holding tax receipt, Ext.4. Electricity connection to the premises was taken by Biswajit. Ext.3 is the demand notice for electricity installation and Ext. 3/a is the receipt showing payment. Biswajit had inducted several tenants in the rooms and had entered into several agreements with them, vide Exts.23 to 29. At this juncture of time unfortunately Biswajit also died in an accident on 10.4.1995 leaving behind his mother the plaintiff, brother-respondent No. 6 and sisters-respondent Nos. 7 to 11.
While matter stood thus, the Hal Settlement operations commenced and after due spot enquiry and measurement by the concerned Amins, draft record-of-rights was prepared in the name of Suresh recording the suit land in his name with Sthitiban status. Ext.5 is the draft ROR and Ext.6 is the Hal Settlement map. Mr. B.H. Mohanty repudiated the submissions made by Mr. P. Mohanty and submitted that Chiranjilal, the vendor of Suresh, was in Khas possession of the disputed land throughout till he alienated and handed over possession of the same in favour of Suresh. The submission that in consonance with the Notification issued under Section 3 of the OEA Act the estate had vested in the State free from all encumbrances is not disputed, but then it was submitted that even after the vesting the husband of the plaintiff continued in possession of the suit land as its rightful owner. Relying upon a Notification issued by the Government of Orissa in the Revenue Department on 14th February, 1977, Mr. B.H. Mohanty submitted that Government had directed the Collectors of several districts of the State to deal with BE-BANDOBASTI lands by instituting suo motu cases and after conducting such enquiry as required to settle the lands in favour of the intermediaries in possession. In consonance with the said policy decision and the Notification issued, the disputed land was settled in favour of Suresh who was in possession of the same from the date of his purchase.
Mr. B.H. Mohanty in support of such submission relied upon the decision dated 21.9.2004 of this Court in W.P.(C) No. 6416 of 2004, wherein it was observed :-
" The intermediary interest of the said land vested in the State of Orissa under the provisions of the O.E.A.Act. By a Circular dated 14.2.1977 the Government of Orissa in the Revenue Department inter alia stipulated that the extension of time for filing of applications under Section 7 of the O.E.A.Act should be granted and settlement should be made by suo motu action by the Tahsildar, Bhubaneswar without waiting for the petitions from the ex-intermediaries and personal service holders."
According to Mr. B.H. Mohanty, the fact that the suit land was settled by a suo motu proceeding in favour of Suresh is apparent from the fact that during the Hal Settlement operations the same was recorded in the name of Suresh in Sthitiban status as would be evident from the draft R.O.R., Ext. 5. He submitted that recording of the land with Sthitiban status itself connotes that the land was settled in favour of Suresh. He further emphasized that other purchasers of adjoining lands from Chiranjilal were also recorded as Sthitiban tenants in respect of the lands purchased by them. In support of such submission he relied on Exts.38, 39 and 41.
This Court in the case of Jai Rout v. Sabitri Dei, also accepted with approval the proposition that settlement should be made in favour of intermediaries by taking suo motu action by the Tahsildars without waiting for petitions from the former.
11. I have carefully considered the submissions made by the learned counsel for both sides and have perused the materials on record. It is apparent from the registered sale deed, Ext. 1, that Chiranjilal had transferred Ac.0.190 decimals of land out of Sabik Plot No. 2660 by a registered sale deed dated 26.10.1959, vide Ext.2, in favour of Suresh. The other documents, viz.. Ext.30-permission granted by the CDA to construct building, Ext.4- the holding tax receipt of Cuttack Municipality, Ext.3- the receipt showing payment of electricity dues, Exts.23 to 29, agreements entered into between Biswajit (plaintiff's son) and the tenants inducted in the shop rooms constructed on the disputed land much prior to the date when the litigation started and Exts.31 to 37- the Case Diaries and FIRs lodged at the Mangalabag Police Station of Cuttack during the period from 1993 to 1996 alleging that defendant No. 4 was trying to forcibly enter into the disputed land, unerringly lead to the conclusion that Suresh was all along in possession of the suit land. Coupled with the said documents, the draft ROR Ext.5, settling the suit land in the name of Suresh with Sthitiban status, clearly leads to an irresistible conclusion that Chiranjilal, and after him Suresh, were in possession of the suit land before and after the estate vested in the State, and in consonance with the policy decision of the State, the suit land was settled with Suresh, thereby conferring valid right, title and interest in his favour.
12. Though Mr. P. Mohanty tried to persuade this Court that after the vesting whatever right, title and interest Suresh had in the suit land got extinguished, in view of the aforesaid discussions, particularly on the face of the draft ROR, Ext.5, prepared in favour of Suresh with Sthitiban status, and the Notifications issued time and again to initiate suo motu proceedings for settlement of lands in favour of defaulting intermediaries who had failed to apply in time and the decision of this Court in that regard, this Court stands un-persuaded.
13. The contention of Mr. P. Mohanty that as plaintiff-respondent No. 1 has not filed any Cross Objection in this appeal she is precluded from challenging the findings arrived at by the Court below that Chiranjilal had no connection with any intermediary estate, as prior to the vesting, the suit land had already been transferred with ownership in the name of Chiranjilal thereby the proprietary right of the intermediary had extinguished; and that Chiranjilal was never a tenant under any intermediary, but was exclusive owner of the suit land, and as such there was no question of vesting of said property in the State is strongly repudiated by Mr. B.H. Mohanty. Relying upon the provisions of Order 41, Rule 22 CPC it was submitted by Mr. B.H. Mohanty that even without filing any Cross Objection in appeal, a party can challenge a finding while supporting the ultimate conclusion arrived at by the Court below.
14. It has been held by the Supreme Court in the case of (Mpl. Corporation of Delhi v. Intnl. Security & Intl. Agency Ltd.), , that substantive right is the right of appeal, the form of Cross Objection is a matter of procedure. Even otherwise, there are three situations, namely, (1) the impugned decree is partly in favour of the appellant and partly in favour of the respondent; (2) the decree is entirely in favour of the respondent though an issue has been decided against him; and (3) the decree is entirely in favour of the respondent and all the issues have also been answered in his favour, but there is a finding in the judgment which goes against him. Only in the first category of cases it is necessary for the respondent to file an appeal or take Cross Objection against that part of the decree which is against him if he seeks to get rid of the said finding. In the second and third category of cases in consonance with the amended Code of Civil Procedure, it is not necessary for the respondent to take any Cross Objection laying challenge to any finding adverse to him as the decree is entirely in his favour. He may support the decree without Cross Objection. In view of the aforesaid principle of law, I find force in the submission of Mr. B.H. Mohanty. As would be evident from the decree, all the issues have been answered in favour of plaintiff-respondent No. 1. Thus there was no need for her to file any Cross Objection. While supporting the decree, it is open to her to assail any finding which is against her even without filing a Cross Objection.
15. So far as the finding of the trial Court in question is concerned, law is well settled that in consonance with Notification issued under the O.E.A.Act, the entire estate vests in the State free from all encumbrances rock, stock and barrel. After vesting, the lands which were in Khas possession of the intermediary and the other properties more fully described in Sections 6 and 7 of the OEA Act were to be settled with the ex-intermediary. That apart, the tenants inducted by an intermediary who were in possession of the land prior to or on the date of the vesting are to continue in same status, but under the State. In other words, he becomes a tenant under the State. Rest lands merge in the State. In view of the aforesaid clear position, the observation of the Court below that Chiranjilal, who had purchased the intermediary right in respect of a portion of the intermediary estate did not step into the shoes of the intermediary is not tenable. Law is settled that a person can alienate only the right which he possesses over the property and the purchasers acquire only that right. Thus Chiranjilal and thereafter Suresh by virtue of their respective sale deeds acquired intermediary rights. The said lands were settled with Suresh later on as would be evident from the record-of-rights (draft) Ext.5.
16. The only other ground on which the trial Court's judgment is assailed by Mr. P. Mohanty is that Suresh and respondent Nos. 1, 6, 7 to 11 being not in possession of the disputed property for more than the statutory period have lost their title and defendant No. 4 (respondent No. 5) has acquired title by adverse possession. To acquire title by adverse possession, as would be evident from Articles 64 and 65 of the Limitation Act, 1963, all that the law requires is that the possession must be open and without any attempt at concealment. The classical requirement of adverse possession is that it should be 'nec vi nec calm and nec precario', i.e. it should be peaceful, open and conspicuous. The possession must be adequate in continuity, in publicity and in extent, to show that it is possession adverse to the competitor. It must be actual, visible, exclusive, hostile and continued for over the statutory period. The hostile character of possession is gauged by the animus of the person setting up adverse possession. In other words it should be borne in mind that to prove title to land by adverse possession for the statutory period it is not sufficient to show that some of acts of possession had been done. Sporadic possession being common, excites no particular attention. It is neither intended to denote nor understood as denoting on one side or the other a claim to the ownership of the land. The Privy Council in AIR 1916 PC 21 (Secretary of State v. Chellikani Rama Rao) held:-
"Nothing is better settled than that the onus of establishing property by reason of possession for a certain requisite period lies upon the person asserting possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct, it would be open to the possessor for a year or a day to say 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions'. Such a singular doctrine can be well illustrated by the case of India, in which the right of the Crown to vast, tracts of territory, including not only islands arising from the sea but great spaces of jungle lands, necessarily not under the close supervision of Government officers, would disappear because there would be no evidence available to establish the state of possession for sixty years past. It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession."
17. Where a suit for possession of immovable property is filed basing on title, such a suit is governed by Article 65 of the Limitation Act, 1963. Where a suit for possession of immovable property is filed not on basis of title, but on the basis of previous possession, such a suit is governed by Article 64 of the Limitation Act, 1963. Under the Old Act of 1908 the two relevant Articles in this regard were Articles 142 and 144. Article 65 of the 1963 Act replaces Article 142 of the Old Act, but is restricted to suits based on possessory title, so that the owner of a property does not lose his right to the property unless the defendant in possession is able to establish his perfection of title by way of adverse possession and that is what has been provided for in Article 65 of the Act. The two Articles, namely, Articles 64 and 65 of the Limitation Act, 1963 have brought radical changes in law as it stood under the Limitation Act of 1908 regarding suits for possession of immovable property.
In the case of Jagmohan Garnaik v. Shankar Samal, , this Court held:
"When a plaintiff files a suit for declaration of title and possession basing his claim on his title and admits dispossession, then he is not to be required to prove that his dispossession was within twelve years of the filing of the suit and he can succeed on establishing his title and will fail only when the defendant proves that he has perfected his title by way of adverse possession and Section 3 or Section 27 of the Limitation Act does not change the legal position in any manner."
18. Keeping the aforesaid cardinal principle of law in mind, let us now examine the case at hand.
Defendant No. 4, against whom all the allegations were levelled in the plaint, though appeared in Court did not file any written statement and was set ex parte. His wife, defendant No. 5 (present appellant) although filed a written statement taking the stand of adverse possession, did not appear in Court nor got herself examined as a witness in the suit. However defendant No. 4 got himself examined as D.W.4. In his deposition he stated that not knowing who was the owner of the suit land his father had occupied the same and had set up a number of cabins there and after his father he was continuing in possession. No document was filed on behalf of the defendant No. 5 to prove possession excepting the Settlement record-of-rights prepared in consonance with the decrees passed by the Civil Court in the suits filed by defendants 1 to 3 for specific performance of contracts by defendant No. 4 with them.
To prove acquisition of title by adverse possession, on behalf of defendant No. 5 no documentary evidence was adduced. But then the contesting defendant examined four witnesses. Out of them, D.Ws.1 and 2 are not residents of the vicinity. They belong to the village of defendant No. 4. They only deposed that they had seen defendant No. 4 in possession of the suit land by running a tea-stall there. They have also stated that defendant No. 4 had inducted some tenants in the suit premises. None of the tenants have been examined as witnesses to corroborate such statement. According to the aforesaid two witnesses, defendant No. 4 had constructed a shed only 21/2 years back. The said two witnesses have clearly admitted that they did not know who was the owner of the land. D.W.3 in his deposition also stated that only 21/2 years back the shop rooms had been constructed by defendant No. 4 who had inducted tenants therein. The appellant who was defendant No. 5, the only contestant in the suit, did not examine herself as a witness, but defendant No. 4 got himself examined as D.W.4 and supported the case of defendant No. 5. There is absolutely no evidence on behalf of the defendants to substantiate their plea of adverse possession, inasmuch as none of the witnesses have stated that defendant No. 3 was at any time possessing the lands claiming to be the owner thereof in exclusion to the title of the real owner.
19. At the other hand to prove her possession, the plaintiff got examined herself as P.W.1 and stated that her husband was in continuous possession of the suit land right from the day of his purchase in the year 1959, vide Ext.2. He had obtained permission from the Cuttack Development Authority for construction of a house on the suit land. She exhibited a number of documents to prove possession of her husband and after him of her son. Some of the documents, like Ext. 30 dated 20.8.1985 the permission letter issued by C.D.A. along with sanctioned plan; Ext.4 -Municipal tax receipt dated 14.3.1995 in respect of the suit holding corroborating the statement that the plaintiff/her husband was paying tax to the Municipality; Ext.3 - Assessment letter of OSEB dated 23.2.1995 for giving electricity connection to the suit premises in the name of Suresh Chandra Ray; and Ext. 3/a dated 23.2.1995- receipt showing payment of charges for electricity connection; Ext.5 - the draft R.O.R. of the year 1995 prepared after field enquiry; Ext.6 - the map dated 11.8.1995 appended to Ext.5; Ext.20 - Amin's report revealing possession of Suresh on the basis of which R.O.R., Ext.5 was prepared, were filed by her.
P.W.2 has corroborated the statement of P.W.1 and has proved Exts.23 to 26 dated 17.3.1995, the house rent agreements inducting the tenants in the suit premises, and also Exts.27 to 29, the entries as to agreements in the register of the Notary.
P.W.3 is another witness who has also stated about possession of the plaintiff over the suit land. He has stated Exts.23 to 26 to have been executed in his presence revealing the description of the land and the name of the owner therein.
P.W.4 is an official witness being an employee of Cuttack Development Authority who had produced Ext.30, the sanction letter issued of CDA in favour of Suresh for raising construction on the suit land with approved plan.
P.W.5 was one of the tenants, who was running a telephone booth, being inducted in the suit premises by Biswajit, vide agreement Ext.29. He has deposed that as he was threatened by defendant No. 4 he had left the suit premises.
The FIRs and records as to criminal cases initiated against defendant No. 4 during the years 1993 to 1995 were exhibited as Exts.31 to 37.
P.W.6 is a police officer who produced and proved the records of all the criminal cases initiated against defendant No. 4 and his associates in respect of overt acts alleged against them to forcibly evict the tenants inducted by Biswajit in the suit premises.
Ext.5 is the record-of-rights prepared by the Settlement authorities recording the suit land in the name of Suresh Chandra Ray with Sthitiban status.
To prove the conduct of defendant No. 4, the plaintiff (P.W. 1) also exhibited the copy of the judgment in T.S.No. 72 of 1996 of the Court of the Civil Judge (SD), 1st Court, Cuttack as Ext.39. The said judgment reveals that defendant No. 4, his father and other members of his family had laid a similar claim of possession over some adjoining land and building thereon belonging to one Kamal Agarwal for which the latter had filed that suit for permanent injunction and the said suit was decreed on compromise in favour of plaintiff Kamal Agarwal.
20. A cumulative assessment of the entire evidence, both oral and documentary, leads to the conclusion that the plaintiff was successful in proving that she, her husband and her son Biswajit were possessing the suit land till 1996 and were exercising their various rights thereon. The suit was filed in the year 2000. Thus the plea that the father of defendant No. 4 and thereafter defendant No. 4 had remained in possession of the suit land asserting their adverse title continuously for more than twelve years prior to the institution of the suit cannot be accepted. This Court therefore confirms the findings of the Court below in this regard.
21. Thus looking the matter from any angle, defendant No. 4 (respondent No. 5) appears to have acquired no title to the suit property. Consequently nothing could pass in favour of defendants 1 to 3 in whose favour defendant No. 4 had executed agreements to sell the suit land. The decrees obtained for specific performance of contract in the Title Suits filed before the Civil Judge (SD), 1st Court, Cuttack on the basis of such invalid agreements also did not confer any right on the said defendants as their vendor had no title to transfer the suit land in their favour. Therefore the subsequent sale deeds executed by defendants 1 to 3 in favour of defendant No. 5-appellant are also ab initio void and do not confer any title on her.
22. Law is well settled that a decree and/or a registered document which is otherwise ab initio void need not be set aside. Such decree does not strip the right of a party who is the real owner and was not a signatory to the document in question or a party to the suit. It is not the law that merely because somebody has obtained a sale deed he has got title to the property as vendee and his title has to be declared so long as the deed has not been set aside by a competent Court of law. If the deed is void at the threshold, no steps need be taken to set it aside. The vendor may not have title to convey, and in such a case the title deed conveys no title and can be ignored as not worth the paper written on. (See 1992 (II) OLR 362 - Sarbeswar v. Commissioner, Consolidation). In view of such position of law, the argument advanced by Mr. P. Mohanty, learned counsel for the appellant, that the suit is not maintainable in the absence of a prayer to set aside the subsequent sales cannot be accepted.
23. So far as the question of non-joinder of necessary parties to the suit is concerned, it appears that after the death of Suresh, the suit property was succeeded by his widow, son and daughters. The widow of Suresh has filed the suit while other family members have been arrayed as pro forma defendants. Thus the suit is maintainable specially in view of the fact that the decree passed would no way prejudice the rights of all legal heirs and successors of the true/original owner of the suit property.
24. On a scrutiny of the evidence, both oral and documentary, and on perusal of the impugned judgment of the trial Court, this Court finds that the trial Court has discussed the evidence in extenso, put right questions and has arrived at just answers and the findings arrived at by it do not suffer from any illegality or infirmity necessitating interference by this Court.
25. The Appeal fails and is dismissed with costs throughout. The impugned judgment and decree of the Court below are confirmed.