BALARAM NAYAK vs JUDHISTIR ROUT AND OTHERS

Dr.A.K.RATH, J.

Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, confirmation of possession and permanent injunction.

Case of the plaintiff is that he is the owner of the suit land. The suit land has been recorded in his name. He is in possession of the same. He is

paying rent. Defendant no.1 is the friend of his brother. Defendants 2 to 5 are the family members of defendant no.1. The plaintiff entrusted

defendant no.1 to supervise the suit land. Taking advantage of the same, defendant no.1 created a forged unregistered sale deed in his favour in

respect of the suit land. He had not executed any document in favour of any body. Neither any consideration amount was paid nor possession was

delivered. On 16.11.1988 the defendants made an attempt to enter into a portion of the suit house, but due to resistance of the plaintiff, they failed in

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

The defendants filed a written statement denying the assertions made in the plaint. According to them, the suit land was originally Gramakantha

Paramboke. The Government of Orissa was the owner of the same. The father of the plaintiff, Kantha Nayak was in possession of the said land.

After him, the plaintiff was in possession of the same. For legal necessity, he sold the said land to defendant no.1 for a consideration of Rs.2,400/- by

means of an unregistered sale deed dated 12.4.1970. At the time of the sale, there was a small thatched house over the suit land. Possession was

delivered to defendant no.1. They are in possession of the suit land since then. They have acquired title by way of adverse possession.

On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary, to substantiate their cases.

The suit was dismissed. Unsuccessful plaintiff filed T.A.No.4 of 1990 before the learned Civil Judge (Sr.Division), Bhanjanagar, which was eventually

dismissed. It is apt to state here that during pendency of this appeal, respondent no.2 died.

The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.1, 2 and 3 of the appeal memo. The same are:-

“(1) Whether in view of the admission of the defendants regarding the title of the plaintiff over the suit property and in view of the Record of Right

in respect of the suit property which stands in the name of the plaintiff, the impugned finding that the plaintiffappellant has no title to the suit property is

illegal being an error of record.

(2) Whether in view of clear denial of execution of Ext.H and rejection of prayer for sending the document for examination of hand writing expert,

findings of the learned courts below relying on said Ext.H are perverse ?

(3) Whether in view of mention in the R.O.R. Ext.1, that the suit property is not transferable and in view of the evidence on record that the plaintiff is

in possession over the suit property having title over the same, impugned finding that the plaintiff cannot get any relief prayed by him is illegal and

perverse ?â€​

Heard Mr.P.K.Das, learned Advocate on behalf of Mr.M.K.Mishra, learned Senior Advocate for the appellant and Mr.H.K.Behera, learned

Advocate on behalf of Mr.S.D.Das, learned Senior Advocate for the respondents.

Mr.Das, learned Advocate for the appellant submitted that plaintiff is the owner of the suit land. He used to pay rent. The defendant no.1 created

an unregistered sale deed in respect of the suit land. The same is tailor-made. He has no right, title and interest over the suit property. The R.O.R. has

been published in the name of the plaintiff. The plaintiff filed an application to send the unregistered sale deed, Ext.H, to the handwriting expert. The

same was rejected by the learned trial court. Learned trial court committed a manifest illegality in relying upon Ext.H.

Per contra, Mr.Behera, learned Advocate for the respondents submitted that the plaintiff had alienated the suit land in favour of defendant no.1 by

means of an unregistered sale deed dated 12.4.1970 for consideration of Rs.2,400/-, Ext.H, for legal necessity. The defendants are in possession of

suit land for more than statutory period and have acquired title by way of adverse possession. The suit land is Gramakantha Paramboke. The appellate

court came to hold that the suit property belongs to the State. State is not a party in the suit. The plaintiff failed to substantiate the title. The defendants

have acquired any title by virtue of Ext.H. There is no perversity in the said finding.

Plaintiff has failed to substantiate title over the suit land. Reliance placed on R.O.R. is totally misconceived. R.O.R. neither creates title, nor

extinguishes title. The courts below held that the plaintiff has no title over the suit land. There is no perversity in the findings of the courts below.

Defendants assert that they have purchased the suit land by means of an unregistered sale deed, Ext.H. The valuation of suit property is more

than Rs.100/-. Ext.H requires registration under Section 17 of the Registration Act. Alternatively it is pleaded that they have perfected title by way of

adverse possession. The plea based on title and adverse possession are mutually inconsistent.

The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others Vrs. Mirza Abdul Gaffer and another, (1996) 1 SCC

639 held:

“As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right

thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or

interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by

prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication

that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of

adverse possession is not available to the appellant.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€​

Thus, the conclusion is irresistible that neither the plaintiff nor the defendants have title over the suit land. The substantial questions of law are

answered accordingly. Resultantly, the appeal fails and is dismissed. No costs.