Dismissed

Soudamini v. Jagannath

Orissa HC7 Oct 2021SA/132/1994

Case brief

AI extract

What is this about?

In this second appeal challenging a decree of eviction and permanent injunction, the High Court examined whether the defendant perfected title via adverse possession. Finding that the defendant failed to prove continuous, open, and peaceful possession for the requisite twelve years, the Court upheld the lower appellate court's decision to decree the plaintiff's title.

What did the court decide?

Judgment and decree of the First Appellate Court confirming Plaintiff's title and granting possession are confirmed; Second Appeal dismissed with costs to parties.

Soudamini Vs Jagannath — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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Second Appeal No.132 of 1994

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In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 19.02.1994 and 04.03.1994 respectively passed by the learned Civil Judge (Senior Division), Khurda in Title Appeal No.22 of 1981 setting aside the judgment and decree dated 14.09.1981 and 29.09.1981 respectively passed by the learned Munsif, Khurda in O.S. No.31 of 1974(I).

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….
Smt. Saudamini Prusty & Others Appellants
-versus-
….
Jagannath Bhagat & Others Respondents
Appeared in this case by Hybrid Arrangement Arrangement
(Virtual/Physical Mode):
-
For Appellants Mr.A. Ch. Mohanty
For Respondents - M/s.G.S. Patnaik, G. Mukherji and
P.Mukherji
CORAM:
MR. JUSTICE D.DASH

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Date of Hearing : 08.09.2021 : Date of Judgment :07.10.2021

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D. Dash, J

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The Appellants, by filing this Second Appeal filed under Section

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100 of the Civil Procedure Code (for short, ‘the Code’) have assailed the judgment and decree dated 19.02.1994 and 04.03.1994 respectively passed by the learned Civil Judge (Senior Division), Khurda in Title Appeal No.22 of 1981.

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By the said judgment and decree, the judgment and decree passed by the learned Munsif, Khurda in O.S. No.31 of 1974(I) whereby the Suit filed by the original Plaintiff, namely, Gunabati Dei, had been dismissed; have been set aside. Accordingly, the Suit has been decreed and the reliefs of eviction and permanent injunction have been granted. Being aggrieved, the Defendants are now in Appeal.

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2. It may be stated here that the original Plaintiff Gunabati Dei

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having died during pendency of the First Appeal filed by her in assailing the judgment and decree whereby she had been non-suited, her legal representatives have come on record and pursued the First Appeal as the Appellants therein and they are now the Respondents.

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Similarly, the Defendant No.1, Hadibandhu Prusti, having died during pendency of that First Appeal, his legal representatives have been substituted and contested the First Appeal, who are now before this Court as the Appellants.

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3. For the sake of convenience, in order to avoid confusion and

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bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

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4. The Plaintiff’s case is that Sri Sri Radhakanta Deb, the Defendant

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No.2 is the stitiban tenant in respect of the suit land under Sabik Khata No.348, Plot No.2453 covering an area of Ac.0.019 decimals and a house

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was standing thereon being assigned with NAC Holding No.96. It was in Mouza-Jajarsingh under Khurda town and under him, one Gopi Behera was the Sikim tenant in Sikimi Khata No.978 and he had his house over

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it. The status of the land was thus recorded as ‘Ghara’. In the locality, as per the custom, the sikimi right is heritable and transferable. So, after the death of Gopi Behera, his son Maguni Behera sold the suit land to Siujatan Ram by registered sale deed dated 20.04.1944 on the receipt of consideration. He had also delivered possession of the same. Thereafter, it is said that in a partition between Siujatan Ram and Budhan Ram, it fell in the share of Budhan Ram and he by registered sale deed dated 28.08.1948 sold the same to Banchhanidhi Pradhan who became the owner in possession of the suit land. It is further pleaded that Banchhanidhi sold the suit land to Bhagabati Bewa, the mother of the Plaintiff under registered sale deed dated 27.08.1956 and delivered possession of the same since when she is continuing to possess the same. After purchase, the Plaintiff’s mother mutated the land in her favour and went on paying the rent. She also paid the municipal holding tax till her death on 21.02.1973. Bhagabati Bewa being sick and having nobody to lookafter her property, had engaged Defendant No.1 as caretaker of the same. The Defendant No.1 thereafter, taking permission from the mother of the Plaintiff, resided in the house standing over the suit land with the family members. It is further stated that such arrangement was for

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temporary period till the Defendant No.1 gets a suitable house. Bhagabati having died, the Plaintiff being her daughter, as the sole heir-in-successor, inherited the property including the suit property and thus became the absolute owner. She then wanted the Defendant No.1 to vacate the suit house. The Defendant No.1 however avoided to do so and he next advanced the claim of title over the suit land. The Plaintiff therefore filed the suit.

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5. The Defendant No.1 coming to contest in his written statement asserted that neither Bhagabati Bewa nor said Gopi Behera were having any interest over the suit land. There was no custom in the locality that Sikimi right is heritable and transferable. So, Bhagabati had got no interest in the entire property by virtue of the sale deed executed in her favour. It has also been stated that Defendant No.1 with Banchhanidhi were doing business in dealing fire-woods. Accordingly, they were using the suit land which was lying fellow. It was during the year 1947 to 1949. The business continued for two years and subsequently heavy loss being sustained, it came to be closed. It was also pleaded that the Defendant No.1 paying salami to the father of Defendant Nos.3 to 7 and having constructed the house over the suit land continued to remain in possession of the property since 1950. Asserting the possession to be open, peaceful and continuous as its owner for all these years in denial of

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the title of the true owner, the Defendant No.1 has presented the case of acquisition of title over the suit land by adverse possession.

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6. On the above rival pleadings, the Trial Court has framed five issues. Coming to answer issue nos.2 and 4 as to how far the Plaintiff has proved her case that she has the right, title and interest over the suit land, the answer has been in the negative. Similarly, the issue as to whether the Sikimi right is according to the custom as prevalent in the locality, the answer have again been in the negative. Based on the findings on the above issues, the Suit being dismissed; the unsuccessful Plaintiff had carried the First Appeal under Section 96 of the code.

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7. The First Appellate Court, after remand of the Appeal being so ordered by the judgment passed by this Court in S.A. No.88 of 1983, has allowed the Appeal by setting aside the judgment and decree passed by the Trial Court. The Suit has thus been decreed holding the Plaintiff to be the title holder of the property and as such entitled for possession of the same and the decree for eviction of the Defendants as prayed for by the Plaintiff has been passed.

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8. The Appeal has admitted on the following substantial question of

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law:-

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“Whether the conclusion about adverse possession is tenable in law?”

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9. A careful reading of the above formulated substantial question of law goes to show that those relate to the finding of the lower Appellate Court that the Defendant No.1 has not perfected title over the suit land by adverse possession. So, now whether in recording such a finding, the First Appellate Court has committed grave error in law being oblivious of the settled position of law holding the field or that the evidence on record having been appreciated in a perverse manner are required to be answered since the plea of the Defendant No.1 has been held to have not been established.

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10. Learned counsel for the Appellants submitted that when Siujatan Ram’s possession over the suit land on the face of Ext.4 and the document in support of partition as is said to have been taken place in the year 1945 has not been proved, the possession of the suit land by Budhan Ram and that of Banchhanidhi as well as Bhagabati also ought to have been held to have not been so proved and in that view of the matter, the Defendant No.1 having proved through clear, cogent and acceptable evidence that he has been in possession of the suit land since the year 1950, on the face of the evidence of refusal of salami by Defendant No.1 and other evidence as to the surrounding circumstances, which fulfill all the required ingredients of adverse possession, the lower Appellate Court ought to have held the Defendant No.1 to have perfected the right, title and interest over the suit land by virtue of adverse possession and

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accordingly the reliefs claimed by the Plaintiff against Defendant No.1 ought to have been denied. He, therefore, submitted that the substantial question of law is to find its answer in favour of dismissal of the Suit by restoration of the judgment and decree passed by the Trial Court which have been annulled by the Lower Appellate Court.

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Learned counsel for the Respondents, in reply, submitted that the concurrent findings of the Courts below has been that the Plaintiff has established antecedent title over the property in question and that is sustainable and, therefore, the lower Appellate court, keeping in view the settled position of law that it is for the Defendant No.1 to establish his claim of perfection of title by adverse possession by way of extinguishment of the right, title and interest of the Plaintiff over the same has gone to analyze the evidence and the conclusion has rightly been arrived at running against the claim/case set up by the Defendant No.1. He submitted that the substantial questions of law are accordingly to be answered in support of the confirmation of the judgment and decree passed in the First Appeal when it cannot be said to be the result of perverse appreciation of evidence.

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11. In the earlier Second Appeal, i.e, S.A. No.88 of 1983, the impugned order is specific that the lower Appellate Court is only to consider the question as to whether on the existing evidence on record,

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the Defendant No.1 can be said to have established his case/claim of perfection of title by adverse possession over the suit land.

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The settled position of law is that a Suit for possession based on title is required to be filed within a period of twelve (12) years from the date when the possession of the Defendants becomes adverse to the Plaintiff. The Plaintiff is to succeed if he proves title without further proving that was in possession of the suit land at any point of time within

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a period of twelve (12) years next before the filing of the Suit. The Defendants, however, to defeat the right of the Plaintiff are under legal obligation to establish that he has been in possession of the suit land for a completed period of twelve years prior to filing of the Suit and that such possession was open, peaceful, continuous without any interruption from any quarter and all through as its owner exercising the rights as such in denying the title of true owner to his knowledge.

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The Plaintiff has been examined as P.W.1. It is stated that

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Bhagabati became the owner of the suit land by purchasing the same from Banchhanidhi, who had purchased the property in question from Budhan Ram, the purchaser from Maguni Behera, the erstwhile owner. Maguni Behera, who happens to be the son of the recorded tenant Gopi Behera (P.W.4), Banchhanidhi Behera (P.W.5) and Sri Krushna Ram, who is none other than the son of Budhan Ram examined as P.W.6 have also deposed in the same line. They have also stated that the possession of the

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land in question have accordingly changed the hands. Besides the above oral evidence, the recitals in the sale deeds stand to the effect of delivery of possession when it is the very case of the Defendant No.1 that the suit land was lying fellow and in the year 1950, he came and occupied the same and by putting up a house, continued his activity over there. The oral as well as the documentary evidence let in by the Plaintiff negates the very important aspect as to the entry of Defendant No.1 to the suit land, commencement of possession and the manner of possession as it is seen that the successive sales of the suit land was with the house standing thereon. More importantly, Ext.7 in clear terms speaks so. Keeping all these in view, the First Appellate Court having raised the eye brows as to the very foundation of the case projected by the Defendant No.1, this Court is not in a position to differ being not able to say that the view so taken suffers from the vice of perversity.

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It is the evidence of D.Ws, which now require little elaboration.

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The evidence of the D.W.1 is as to his knowledge about the occupation of the house by Defendant No.1 for 10 to 12 years prior to July, 1975 when he has been examined. He has expressed his ignorance on the fact as to who put up the house. The other witness (D.W.2) says that the Defendant No.1 came over the suit land about 25 to 26 years before, which is coming around the year 1950-1951. He, however, has stated to have requested one Madhusudan Bahinipati for that piece of land. When

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D.W.3 has also deposed that he told D.W.2 to make a request to one Madhusudan Bahinipati who happens to be the owner of the land and accordingly, D.W.2 arranged the land on execution of certain documents

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and fixing of salami, which ultimately did not happen for some unavoidable circumstance. This evidence of D.Ws.2 and 3 not only travel beyond the case of the Defendant No.1 but also is not indirectly connected; rather the same is completely contradictory to the very case set up in the written statement. The case of the Defendant No.1 in the written statement is that he was doing good business there over the suit land and paying salami. The father of Defendant Nos.3 to 7 had constructed the house over the same. He has also stated that at one point of time, the land was lying fellow and he put up a house over there. Facing the cross-examination, the Defendant No.1 has stated to have stayed there over the suit land for eight years prior to his retirement in the month of September, 1985. The lower Appellate Court had analyzed the evidence of all these witnesses in great detail and has, held that there has been failure on the part of the Defendant No.1 to prove by leading clear, cogent and acceptable evidence that he was in possession of the suit land

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from the year 1950 exercising the rights of ownership exhibiting hostile animus as against the true owner to his knowledge. By assigning good reasons the evidence of D.Ws have been found to be unacceptable. Moreover, it has to be taken note of the fact that the Defendant No.1, in

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support of his claim of possession of the suit land since the year 1950 by putting up a house over there, has not been able to produce a scrap of paper in support of the factum of possession at any point of time and at the same time, it is found the evidence let in by the Plaintiff both oral and documentary is sufficient to negate the claim of the Defendant No.1 on the relevant scores.

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The Defendant No.1 has admitted that the suit land belonged to

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Deity when Defendant Nos.3 to 7 were its Marfatdars and that he had requested the father of Defendant Nos.3 and 4 to permit him to occupy the suit land. This has been deposed to by D.W.2. Faced with such evidence on record, the First Appellate Court has rightly said that the Defendant No.1 has failed to establish his case as to acquisition of title over the suit land by adverse possession. Keeping in view all the above, basing on the finding of the title over the suit land as to resting with the Plaintiff, the result rendered in decreeing the suit holding the Plaintiff’s entitlement to recover possession from the Defendants in view of their possession as rank trespassers, is thus found be well in order.

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12. In view of the aforesaid discussion, the answers to the substantial question of law stands returned against the case of the Defendants which run in favour of confirmation of the judgment and decree passed by the First Appellate Court.

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13. Resultantly, the Second Appeal stands dismissed. In the peculiar

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facts and circumstances of the case, the Parties are directed to bear their

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respective cost all throughout.

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(D. Dash)

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Judge

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Basu

Soudamini v. Jagannath

Case brief

What is this about?

What did the court decide?

Soudamini v. Jagannath

Case brief

What is this about?

What did the court decide?

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