Dismissed

Harishchandra v. Indrajit

Orissa HC29 Jul 2019SA/264/1999

Case brief

AI extract

What is this about?

In a title appeal, the High Court of Orissa dismissed the appeal after holding that the appellant, not being the son of the alleged owner of record, lacks title to the suit land. The Court ruled the substantial questions regarding adverse possession did not arise as the appellant could not establish succession.

What did the court decide?

The appeal fails and is dismissed. No order as to costs.

Harishchandra Vs Indrajit — Partition | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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S.A.No.264 of 1999

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From the judgment and decree dated 5.4.1999 and 21.4.1999 passed by Mr.L.D.Rath, learned Civil Judge(Senior Division), Patnagarh in T.A.No.2 of 1992 reversing the judgment and decree dated 26.10.1992 and 3.11.1992 passed by the learned Munsif, Patnagar in T.S.No.26 of 1987.

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------------- Harischandra Jal and others ….	Appellants
Versus
Indrajit @ Jita Das and others ….	Respondents
For Appellants --	Mr.S.P.Mishra, Sr.Advocate, Mr.A. Mahanta, Advocate
For Respondents --	Mr.B.Das, Advocate

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of Hearing :23.07.2019 & Date of Judgment: 29.07.2019

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Dr.A.K.RATH, J. This appeal at the instance of the plaintiffs assails the reversing judgment of the learned Civil Judge (Senior Division), Patnagarh in a suit for declaration of title and recovery of possession.

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The case of the plaintiffs is that the suit property is the ancestral property of their father-Nrupa Jal. The same was recorded

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in the name of Nrupa in the R.O.R.. After death of Nrupa, they succeeded to the property. The defendants are strangers to the family. They were permitted by their father to possess the suit land with a condition to vacate the same as and when required. When they did not vacate the land, the suit was filed seeking the reliefs mentioned supra.

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The defendants filed written statement denying the assertions made in the plaint. The case of the defendants was that the suit land originally belonged to one Paban Jal. Paban had no issue. He adopted Ranjit. Ranjit had sold the suit land to them in the year 1936. They have constructed a house over it. They are in possession of the same. It was further pleaded that Ranjit was widower. He married to Rambha, widow of Sambaru. Nrupa is the son of Rambha through Sambaru. The plaintiffs are not the grandsons of Ranjit. Neither Nrupa nor the plaintiffs have title over the suit land.

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Stemming on the pleadings of the parties, learned trial court struck five issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the property has been recorded in the name of Nrupa in the R.O.R.. The plaintiffs are the legal heirs of Nrupa. The defendants have failed to prove that they have purchased the suit land. Their possession is permissive. The defendants filed Title Appeal No.2 of 1992 before the learned Civil Judge (Sr.Division), Patnagarh. Learned appellate court held that Nrupa is not the son of Ranjit. Neither Nrupa nor the plaintiffs have any right over the suit land. It becomes quite immaterial whether the defendants have purchased the suit land from Ranjit or they have perfected title by way of adverse possession.

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The appeal was admitted on the substantial questions of law enumerated in ground nos.A, B and G of the memorandum of appeal. The same are:

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“A. Whether the plea of adverse possession itself is sufficient to shift the onus on the defendant to dispute the title of the plaintiff by efflux of time by cogent evidence.

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B. In a case of antecedent title, Article 65 of the Limitation Act comes into play and therefore, onus lies on the defendant to show that the plaintiff was not in possession 12 years prior to the filing of the suit and the onus lies on the defendant to establish the same.

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G. Whether the findings of the learned lower appellate court on issue No.2 and 3 is contrary to the opposition of law as enunciated in Art.65 of the Limitation Act.”

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In course of hearing, the following substantial question of law was formulated:

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“1. Whether the learned appellate court is justified in reversing the decree of the learned trial court holding that Nrupa is not the son of Ranjit and the plaintiffs have no title over the suit land.”

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Heard Mr.S.P.Mishra, learned Senior Advocate along with Mr.A.Mahanta, learned Advocate for the appellants and Mr.B.Das on behalf of Mr.N.C.Pati, learned Advocate for the respondents.

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Mr.Mishra, learned Senior Advocate for the appellants argued with vehemence that the suit property was recorded in the name of Nrupa in the R.O.R., vide Ext.1. Nrupa was the owner of the suit land. After his death, the plaintiffs succeeded to the property. The plaintiffs used to pay rent as would be evident from Ext.2 series. The defendants had not produced any document to establish that

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they purchased the land from Ranjit. There is also no document that the property was recorded either in the name of Paban or Ranjit. None of the family members of Paban or Ranjit raised any objection in recording the name of Nrupa in the R.O.R.. Nrupa is the recorded owner of the suit land. Learned appellate court has unnecessarily gone into sonship of Nrupa. The defendants failed to prove the adverse possession. The defendants are in permissive possession of the suit land. There is no material on record to show as to when the possession became hostile. Possession beginning with permission can never become adverse unless hostile animus was expressed at any particular time to the knowledge of the owner. The findings of the learned appellate court are perverse. He placed reliance on the decisions in the case of Ram Nagina Rai and another Vrs. Deo Kumar Rai (Deceased) by LRs and another, 2018(10) SCALE 630 and Dhaneswar Mahanty and others Vrs. Sitanath Das and others, AIR 1979 Orissa 177.

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Per contra, Mr.Das, learned counsel for the respondents submitted that the plaintiffs have to stand or fall on their own legs. They cannot take the weakness of the defendants. Ext.1, the R.O.R reveals that Nrupa is the son of Parikhita. The plaintiffs have no title over the suit land. Placing reliance on the R.O.R., vide Ext.1, and rent receipts, vide Ext.2 series, learned appellate court held that Nrupa is not the son of Ranjit. The R.O.R. has not been challenged in any form. The plea of adverse possession was not an issue before the trial court. The defendants had purchased the suit land from Ranjit in the year 1936.

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Learned trial court has not taken into consideration the evidence adduced by the defendants. Learned appellate court held

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that learned trial court has not discussed the oral evidence adduced by the defendants and jumped to a conclusion that the plaintiffs’ father Nrupa is the son of Ranjit placing reliance on the R.O.R. vide Ext.1. But then, Ext.1 reveals that Nrupa is the son of Parikhita. No evidence has been adduced by the plaintiffs explaining such entry. On scanning of evidence of D.Ws.1, 3 and 6, it further held that Nrupa is not the natural born son of Ranjit. Ranjit was the owner of the suit land. Nrupa cannot inherit the property as per law of succession. Neither Nrupa nor the plaintiffs have title over the suit land. These are essentially findings of fact. There is no perversity in the same. The substantial question of law enumerated in ground no.1 is answered in affirmative. In view of the same, the substantial questions of law enumerated in ‘A’, ‘B’ and ‘G’ do not arise for consideration.

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In Ram Nagina Rai, the apex Court held that adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed.

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In Dheneswar Mahanty, this Court held that possession beginning with permission can never become adverse unless hostile animus was expressed at any particular time to the knowledge of owner.

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There is no quarrel over proposition of law.

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