ANI TANTI .SINCE DEAD THROUGH L.RS. AND OTHER vs KAILASH CHANDRA MOHANTA

Dr. A.K. Rath, J. Â

This is a defendants’ appeal against confirming judgment.

Plaintiff-respondent instituted the suit for declaration of title over the suit land, confirmation of possession and in the alternative for recovery of

possession in the event he is dispossessed during pendency of the suit and permanent injunction. The case of the plaintiff was that Chamu Mohanta,

his grand-father, was the owner of the Schedule ‘A’ land. In the sabik as well as hal settlement, Schedule ‘A’ land had been recorded in

the name of Chamu. Chamu had two sons, namely, Shankar and Bauribandhu.

Shankar died unmarried. After death of Chamu, his only son, Bauribandhu inherited Schedule ‘A’ land. He was in possession of the same.

Bauribandhu died in the year 1980 leaving behind him two sons, namely, Nishikanta and Kailash, the plaintiff. After death of Bauribandhu, there was a

partition of the landed properties between Nishikanta and the plaintiff. Schedule ‘A’ land fell to the share of the plaintiff. He is in possession of

the same. Taking advantage of his absence, on 24.4.95, the defendants forcibly entered into Schedule ‘A’ land, erected some wooden pillars

over the suit plot and started construction of a thatched house. He protested the action of the defendants. But then, the defendants turned a deaf ear.

With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. Â

The defendants entered contest and filed a joint written statement denying the assertions made in the plaint. They have admitted that the suit land

had been recorded in the name of Chamu Mohanta. They denied the title of the plaintiff over the suit land. According to the defendants, Chamu, the

paternal grandfather of the plaintiff, had another brother namely, Jeeban, who is dead. Both Chamu and Jeeban inherited the suit land after death of

their father. Finding that the suit land was insufficient for his maintenance, Chamu left for village Gopinathpur and settled there permanently leaving

the suit land under the care and custody of his brother, Jeeban. Jeeban possessed the suit land for about 7 to 8 years. On 3.3.1949, Jeeban sold the suit

land in favour of Pitambar Tanti @ Gadu Tanti, husband of defendant no.1 and elder brother of defendant nos.2 and 3 for a consideration of Rs.60/-

by means of an unregistered sale deed and delivered possession to him. Pitambar and the defendants were in possession of the suit land. After death

of Pitambar, the defendants are in possession of the suit land and constructed a dwelling house. They have perfected title by way of adverse

possession.

On the interse pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary, to substantiate their case.

Learned trial court decreed the suit with the finding that in the sabik ROR, Ext.1, of the year 1931 as well as the Hal ROR, Ext.2, the suit land had

been recorded in the name of Chamu. The unregistered sale deed, Ext.A, does not disclose the khata no. or plot no. or even area of the land sold

through it. It further held that the defendants are not in possession over the suit land for more than the statutory period. The defendants had not

acquired title by way of adverse possession. The suit land was the exclusive property of Chamu Mohanta. The plaintiff has right, title, interest and

possession over the suit land. The unsuccessful defendants filed T.A. No.3 of 1997 before the learned Civil Judge (Sr. Divn.), Karanjia, which was

eventually dismissed. It is apt to mention here that during pendency of the second appeal, the appellant no.1-defendant no.1 died. The legal heirs have

been substituted.

The second appeal was admitted on the substantial questions of law enumerated in ground nos.12(a) and (b) of the appeal memo. The same are:

“12(a) Whether in the fact and circumstances of the case, the courts below erred in law in disbelieving the case of adverse possession against the

true owner of the suit land ?

(b) Whether recording of the name of the one cosharer of the joint family property in ROR can it be presumed under law, it is not a joint family

property and other co-sharer has lost their right, title, interest thereon ?â€​

Heard Mr. Dillip Kumar Mohapatra, learned counsel for the appellants. None appeared for the respondent.

Mr. Mohapatra, learned counsel for the appellants, submitted that Jeeban was the brother of Chamu. On 3.3.1949, Jeeban sold Ac.0.46 dec. of land

to the defendants by means of an unregistered sale deed for a consideration of Rs.60/-. The defendants had constructed a house thereon. They are in

possession of the suit land for more than the statutory period peacefully, continuously and with the hostile animus to the plaintiffs and as such

perfected title by way of adverse possession.

The submission of Mr. Mohapatra, learned counsel for the appellants, is difficult to fathom. The courts below concurrently held that the record of

right, Ext.1, was published in the year 1931 in the name of Chamu Mohanta. The record of right, Ext.2, was published in the name of Chamu

Mohanta. Chamu Mohanta was the recorded owner of the suit land. The unregistered sale deed dated 3.3.1949, Ext.A, said to have been executed by

Jeeban in favour of the defendants did not disclose the khata no., plot no. and area. No title has passed. It negatived the plea of adverse possession.

On bare perusal of the unregistered sale deed, Ext.A, it is evident that no khata no. and plot no. has been mentioned. The courts below are perfectly

justified in holding that no title has passed.

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.

Mere possession of the suit land for long time is not suffice to hold that the defendants have perfected title by way of adverse possession, unless

the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved.

The claim of title to the property and adverse possession are in terms contradictory. In Annasaheb Bapusaheb Patil and others vs. Balwant alias

Balasaheb Babusaheb Patil (dead) by Lrs. and heirs and others, (1995) 2 SCC 543, the apex Court made an in-depth analysis of claim of title and

claim to adverse possession over the property. The apex Court in paragraph-15 of the report held:

“Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession

can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of

another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation.

Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no

tide at all.â€​

The apex Court in the case of L.N. Aswathama and another v. P. Prakash, (2009) 13 SCC 229 held :

“To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be

physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that

long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus

possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is

renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period

for prescription will not commence.â€​

Both the courts concurrently held that the defendants have not perfected title by way of adverse possession. There is no perversity in the said

finding. The substantial questions of law are answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.