In a second appeal converting a property dispute, the court held insufficient affidavit filing did not vitiate the trial. The appeal was dismissed as the appellant failed to prove adverse possession over the land claimed by the plaintiff.
The second appeal was dismissed; there would be no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R.S.A. No.74 of 2014
0 . 02.08.2016 This appeal has been filed against the judgment and de
cree passed by the learned 2nd Additional District Judge & Sessions Judge, Khurda in R.F.A. No
.1/19/13 of 2006 confirming the judgment and decree passed by the learned Civil Judge (Sr. Div
ision), Khurda in Civil Suit No.8 of 2003. The respondent as the plaintiff had filed the suit
for declaration of her right, title and interest over the suit land and for eviction of the pr
esent appellant being the defendant therein with other relief of mesne profit, confirmation of
possession over schedule B land and for permanent injunction. The suit having been decreed, t
he present appellant being the unsuccessful defendant had carried the appeal. Since the appeal
has also been dismissed, now the move before this Court is by filing the second appeal under
section 100 of the Code of Civil Procedure. In the meantime, the original plaintiff havin
g died, his legal representative have been substituted.
2. For the sake of convenience, in order to bring in clarity and avoid confusion,
the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. Plaintiffs case is that she is the owner of the suit land comprising of eight
plots having purchased the same and the same stands recorded in her name. It is stated that a
ll those plots are adjacent to each other and the land covered under all those plots are in on
e compact patch. It is stated that she had raised boundary wall around the suit land as also t
he land under Plot No.1614 which belonged to her husband. The plaintiff claims to have been in
cultivating possession of the suit land having constructed the room over a portion of it. It
is also stated that some rooms have been constructed over the portions of the suit land which
adjoins the road which have been let out to different tenants. There are six shop rooms with V
aranda and to the west of those rooms there was a thatched house with stone walls around. This
is said to have been let out to one Nuruuddin Khan for running a Dhaba. In course of time, sa
id Nuruuddin having suffered set back in his business failed to pay the rent which thus remain
ed in arrear and finally in the year 1999 after the super-cyclone, he closed his business. How
ever, he did not leave the land and began to create trouble now and then. So a proceeding unde
r section 144, Cr.P.C. was initiated which was ultimately compromised. It is alleged that afte
r the said compromise, some persons in enemical terms with the plaintiff and her family member
s instigated the defendant, who then attempted to enforce possession of the extra room close t
o the Dhaba and forcibly occupied a portion of the vacant land lying nearby. So another procee
ding under section 144, Cr.P.C. was initiated wherein prohibitory order had been passed. It is
asserted by the plaintiff that the defendant has no right, title and interest over the suit l
and and is thus a rank of tress passer liable to be evicted visited with the burden of payment
of mesne profit @ Rs.50/- per day. As the defendant forcibly remained in occupation of schedu
le A land with the bent of mind to further continue in occupation of the land under schedule B
, the suit had to be filed.
4. The defendant in his written statement denied the factum of possession of the
suit land by the plaintiff as also all other facts as regards constructions etc. as narrated i
n the plaint. It is stated that the house and the vacant land over which he has stacked firewo
ods was under the occupation of his father, who had constructed the said house about 35 years
prior to the filing of the written statement. It is also stated that the defendants father had
been carrying said business and the defendant was also assisting him then. Thereafter it is b
eing carried out by the defendant alone. Thus, it is stated that he had acquired title over th
e said land by adverse possession. It is alleged that the plaintiff had never gone to the suit
land at any point of time nor she had been in possession of the same or any portion thereof a
t any time nor is in possession of the same now.
5. On such rival pleadings, the trial court framed nine issues. Answering the cru
cial issue, i.e., issue nos.4 and 7 as regards the claim of title by the plaintiff over schedu
le A and B land, as also her entitlement to the other reliefs, on evaluation of evidence, answ
ers have been recorded in favour of the plaintiff while side-by-side holding the defendant to
have failed to establish his case of acquisition of title over the suit land by adverse posses
sion. Answers to the other issue have followed the suite.
6. The lower appellate court having been moved by the present appellant being the
unsuccessful defendant as is seen has gone to examine the sustainability of the aforesaid fin
dings recorded by the trial court keeping the settled position of law in mind. On evaluation o
f evidence both oral and documentary, let in by the parties, it having returned the findings
as those had been rendered by the trial court, has ultimately gone to affirm those. Accordingl
y the judgment and decree of the trial court have been confirmed.
7. Learned counsel for the appellant reiterating the substantial questions of law
as mentioned at page-8 of the memorandum of appeal further contends that the findings recorde
d by the courts below are perverse since there has been no appreciation of evidence at all. It
is also submitted that the plaint as required under the provision of order-6, rule-15 of the
Code having not been supported by the affidavit, the same ought not to have been looked into.
So, these, according to him, are the substantial questions of law.
8. Going first to address the second limb of the submission, its correct that the
provision of order-6, rule-15 of the Code provides that the person verifying the pleadings sh
all furnish an affidavit in support of the same. However, it is seen that here it was neither
pressed into service in the trial court till the end of the suit nor before the first appellat
e court at any time till its disposal. So no issue having been framed, the defendant fully par
ticipated all through and the defendant has contested the suit by filing written statement, cr
oss-examining the witnesses examined by the plaintiff as also tendering the evidence in suppor
t of his case. He has not raised this question of non-compliance of the provision of order-6,
rule-15 of the Code at any time in the courts below and it is now raised for the first time in
this second appeal. Thus, the defendant having fully participated in the hearing before the
trial court and accordingly having received the result and then having carried first appeal wh
en has failed, at this stage of second appeal, this noncompliance of provision of law as above
being raised for the first time, the same is of no legal significance which may at best can b
e said to be an irregularity but not an illegality touching the root of the matter so as to no
n-suit the plaintiff for said deficiency without going to the merit. This submission of learne
d counsel for the appellant thus is held to be of no force in the eye of law at this stage.
9. The courts below in the case in hand have rendered the concurrent finding on a
ppreciation of evidence, both oral and documentary, that the plaintiff has proved that she has
the title over the suit land. The defendant in the case has taken the plea of acquisition of
title by adverse possession. So, the burden rests on him to plead and prove all the legal requ
irements to make out a case of acquisition of title by adverse possession. The settled law is
that the possession for the purpose must be open, peaceful and continuous, for upward of the p
eriod prescribed in exercise of all the rights of ownership over the land all through in denia
l of the title of the true owner exhibiting hostile animus to the knowledge of the true owner.
For the purpose of advancing a claim of acquisition of title by adverse possession over a pie
ce of immovable property, the possessor must at the time of entering into possession admit the
title of the true owner and then begin to possess the same, denying the said title of the tru
e owner claiming the same unto himself. It is next required to be specifically pleaded and pro
ved that such state of affairs as regards possession continued for the entire prescribed perio
d without any interruption.
10. In the instant case the pleadings of the defendant lacks all those details. It is sim
ply pleaded that he has been in possession since the time of his which makes no sense for the
purpose of the claim as advanced. Even accepting the case of the defendant that he has been in
possession of the suit land as per the settled position of law that mere possession does not
give rise to a case of acquisition of title by adverse possession, the case of the defendant h
as to fail. Though the plaintiff herself has not been examined during the trial nonetheless he
r son has come to the witness box and has tendered evidence on her behalf stating that he hold
s the power of attorney which he has proved. Further deposing the age of her mother to be 80 y
ears by then he has said that for the said reason, he has been looking after the property. So,
non-examination of the plaintiff herself in the facts and circumstance of the case does not c
all for drawal of any adverse inference to her case. The courts below having thus found the pl
aintiff to be having title over the suit land with which this Court finds no reason to disagre
e as no such perversity is noticed to have been committed by the courts in recording such conc
urrent finding. Next when the defendant has failed to establish his case of acquisition of tit
le by adverse possession, the plaintiffs suit have been rightly decreed. For the aforesaid, th
e submission of the learned counsel for the appellant cannot be countenanced with. Thus, this
Court finds that no substantial question of law arises in this appeal for its certification f
or the purpose of admission of this appeal.
11. In the result, the appeal stands dismissed. There would, however, be no order as to c
ost.
.
D. Dash, J.
H
H
8
2 issues framed by the court
Whether non-filing of an affidavit under O. 6 Rule 15 CPC, not pressed in lower courts, constitutes ground to allow a second appeal.
Whether the appellant established acquisition of title over the suit land by adverse possession.
2 provisions across 1 enactments
Appellant (Defendant)
Respondent (Plaintiff/Legal Representative)
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court