Orissa High Court
Jagabandhu Samanta Since .Dead. ... vs Sudarsan Jay Alias Pan And Another on 15 December, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.272 of 1990
From the judgment and decree dated 18.4.1990 and 24.4.1990
respectively passed by Sri G.C. Mohanty, learned Additional District
Judge, Sambalpur in T.A. No.25/5 of 1988/1990 reversing the
judgment and decree dated 23.2.1988 and 7.3.1988 respectively
passed by Sri S.N. Mishra, learned Munsif, Kuchinda in T.S. No.10 of
1983.
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Jagabandhu Samanta (since dead)
through L.R. .................... Appellant
---versus--
Sudarsan Jay @ Pan and another ..................... Respondents
For Appellant : Mr. P.C. Panda, 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 : 15.12.2017 │ Date of Judgment: 15.12.2017
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Dr. A.K. Rath, J. Defendant no.1 is the appellant against a
reversing judgment.
2. Plaintiff-respondent no.1 instituted the suit for
declaration of title, confirmation of possession and recovery of possession in the event he is dispossessed during pendency of the suit. The case of the plaintiff is that the suit land belonged to his father Purandar Jay @ Pan. After his death, the plaintiff and proforma defendant no.2 being the successors-in-interest inherited the suit land. He is in possession of the suit land. During the current major settlement, the land was wrongly recorded in the name of Sradhakar Singh as he was cultivating the suit land on behalf of the 2 plaintiff and defendant no.2. He filed objection before the Assistant Settlement Officer. But then the Assistant Settlement Officer rejected the objection. He filed appeal, which was dismissed for non-prosecution. The defendant no.1 interfered with the possession of the plaintiff and defendant no.2. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
3. Defendant no.1 entered contest and filed a written statement. The case of the defendant no.1 is that he is the nephew of the father of the plaintiff. In the year 1950, father of the plaintiff gifted the suit land to him. Since then, he was in possession of the suit land upto 1985. The suit land had also been recorded in his name in the current settlement. The plaintiff had no right, title and interest over the same. His possession had been decided by the Assistant Settlement Officer. The plaintiff cannot reagitate the same point again in civil court as the same is hit by the principles of res judicata. The proforma defendant no.2 also filed her written statement supporting the case of the plaintiff.
4. On the interse pleadings of the parties, learned trial court struck six issues. Parties led evidence. Learned trial court recorded the finding that the defendant no.1 acquired title over the suit land on the basis of the oral gift made by the father of the plaintiff in 1950. The order of the Assistant Settlement Officer to record the suit land in the name of defendant no.1 is valid. The plaintiff has no semblance of right, title and interest and possession over the suit land. Held so, it dismissed the suit. The plaintiff appealed before the learned District Judge, Sambalpur, which was subsequently transferred to the court of the learned Additional District Judge, Sambalpur and renumbered as T.A. No.25/5 of 1988/90. Learned lower appellate court held that defendant no.1 3 has not perfected title by way of adverse possession. Held so, it allowed the appeal.
5. The second appeal was admitted on the substantial question of law enumerated in ground no.4 of the memorandum of appeal. The same is:
"Whether the lower appellate court was justified in reversing the finding of adverse possession without independently scrutinizing the evidence of this count and coming to an independent conclusion."
6. Heard Mr. P.C. Panda, learned counsel for the appellant. None appears for the respondents in spite of valid service of notice.
7. Mr. Panda, learned counsel for the appellant submits that the father of the plaintiff was the owner in possession of the suit property. He made an oral gift in favour of defendant no.1, his sister's son, in the year 1950 and delivered possession of the property. Pursuant to the oral gift, the defendant no.1, donee, is in possession over the suit property peacefully, continuously and with the hostile animus to the plaintiffs and as such perfected title by way of adverse possession. In the settlement proceeding, an Amin was deputed for local enquiry. The plaintiff had admitted the oral gift made by the father of the plaintiff in the settlement proceeding. He signed in the report of the Amin. Subsequently misc. case no.4/87 was initiated.
8. Gift has been defined under Sec.122 of the Transfer of Property Act, 1882 (hereinafter referred to as "T.P. Act"). It postulates that gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Sec.123 of the T.P. Act 4 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.
9. On a bare perusal of Sec.123 of the T.P. Act, it is evident that transfer may be effected either by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Oral gift is a misnomer. It is foreign to law.
10. 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 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".
11. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court observed as under :-
"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-5
use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." (emphasis laid)
12. In paragraph 10 of the judgment, learned lower appellate court delve into the matter and held that there is no cogent and reliable evidence to believe that in fact on the basis of an oral agreement defendant no.1 got possession of the suit land and continued to possess the same till his dispossession in 1985. There is no evidence how and under what circumstances, defendant no.1 has been dispossessed from the suit land. The suit land was the ancestral property of the father of the plaintiff. The claim of the defendant no.1 that he was in possession of the suit land on the basis of an oral gift appears to be quite inconsistent and unreliable in view of the facts and evidence on record. The only fact of possession in support of the defendant no.1, the R.O.R., the same cannot be the sole basis for him to show that he is in possession of the suit land. It scrutinized the evidence of defendant no.1, who has been examined as D.W.5 and held that D.W.5 clearly gives an 6 impression that he is not definite about his own claim over the suit land. He could not say the year, month or date of the deed. He deposed that the same was executed 15 years back. No such document was produced. The case of the defendant no.1 is that the gift was executed in the year 1950, but his evidence shows that it was done sometimes during 1972. In his cross-examination, he admitted that he gave his statement in a previous proceeding that he cannot say anything regarding the title and possession of the suit land. Further in his application before the Assistant Settlement Officer, Ext.8, he had mentioned that he purchased the suit land from the plaintiff in 1958 for a consideration of Rs.100/- and possessing the same. His claim over the suit land is not definite. At times, he claims to have got this land by way of gift in 1950 from the father of the plaintiff, some times he says that he got this land in 1972 from the father of the plaintiff. There is no document in support of the claim. On an anatomy of the evidence on record and pleadings, learned lower appellate court came to hold that defendant no.1 has not perfected title by way of adverse possession. There is no perversity in the said finding. The substantial question of law is answered accordingly.
13. Resultantly, the appeal fails and is accordingly dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 15th December,2017/Basanta