BHAGABAN BAG vs DAMA BAG AND OTHERS

Dr. A.K. Rath, J.

Since both the appeals arise out of a suit, the same were heard together and are being disposed of by this common judgment.

Krushna Bag, father of the appellant, as plaintiff instituted the suit for declaration of right, title and interest over the suit land and permanent

injunction. The case of the plaintiff was that the suit land originally belonged to Basu Bag. After death of Basu, his widow Pakla succeeded to the

properties as Basu had no issue. Pakla was in possession of the property. Plaintiff and his father, Khetra Bag, maintained her till her death. On

31.12.65, Pakla executed an unregistered gift deed in favour of the plaintiff’s father in respect of the suit land and delivered possession. His father

was in possession of the property. In the year 1975, his father mortgaged a portion of the suit land to one K.K. Majhi by means of a registered deed.

The mortgagee remained in possession of the land for seven years. Thereafter he delivered possession of the land to the plaintiff. He filed Mutation

Case No.3510/81. The land was mutated in his favour. He used to pay rent. He is in possession of the land and has acquired possessory title. The

defendants have no title over the land. They created disturbances in his possession. With this factual scenario, he instituted the suit seeking the reliefs

mentioned supra.

The defendant nos.1 to 4 filed a joint written statement denying the assertions made in the plaint. The specific case of the defendant nos.1 to 4 was

that the suit lands along with other lands originally belonged to Chamaru Bag, Basu Bag, Basudev Bag, Budhu Bag and Bijaru Bag. They were in

possession of the land. The names had been recorded in the ROR published in the year 1936. During the life time of the said persons, the lands were

partitioned. The suit land along with other lands fell to the share of Chamaru Bag. Chamaru was in possession of the same. During the current

settlement, the suit land had been recorded in the name of Chamaru. He used to pay rent. After his death, the defendant nos.1 to 5 succeeded to the

properties. They are in possession of the suit land. Â

Defendant no.6 also filed written statement denying the assertions made in the plaint. His specific case was that in the 193233 settlement, lands

appertaining to holding no.26 of village Lepta were recorded jointly in the names of Chamaru Bag, Basu Bag, Basudev @ Bahadev Bag, Budhu Bag

and Sankirtan Bag. The land had been amicably partitioned among the recorded tenants. They were in possession of their shares. After death of

Basudev, his sons, Uttam and Bibhisan were in possession of the land. They sold the suit plot no.1157 along with other lands to defendant no.6 on

19.7.72 by means of a registered sale deed for a valid consideration and delivered possession. Since then, he is in possession of the suit land. During

current settlement, the suit land had been recorded in his name. He used to pay rent. Basu was not the owner of the said plot. The mutation of the

land in favour of the plaintiff has been made surreptitiously. The alleged gift deed is a forged one. Â

Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their

cases. Learned trial court decreed the suit with the finding that none of the parties was able to prove the partition between Chamaru and his brothers.

The plaintiff failed to prove that the suit land originally belonged to Basu. The defendants failed to prove that suit lands were allotted to their

predecessor-in-interest. The plaintiff is in possession of the suit land since 31.12.65 and as such acquired possessory title. Felt aggrieved, the

defendant nos.1 and 4 appealed before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Additional

District Judge, Balangir and renumbered as T.A. No.88/29 of 1993- 97. Defendant no.6 also filed appeal before the learned District Judge, Balangir,

which was subsequently transferred to the court of the learned Additional District Judge, Balangir and renumbered as T.A. No.91/25 of 1993-97.

Learned lower appellate court held that there is no pleading of acquisition of title by adverse possession, but concurred with the finding of the learned

trial court that the plaintiff failed to substantiate that the suit plots were allotted to the share of Basu in a family partition. It compared the schedule of

property mentioned in the unregistered gift deed, Ext.1, with the certified copy of the plot index, Ext.G and held that possession was not delivered to

the father of the plaintiff. The suit plot had been recorded in the name of Chamaru, father of the defendant nos.1 to 3. The hal settlement ROR had

been published in the year 1976. The defendants were paying rent. The mutation had been made by the Revenue Officer without verifying the hal

settlement ROR. The same has no basis. The unregistered gift deed does not confer title. The order passed by the Mutation Officer and the

consequent ROR, Ext.2 is illegal and without jurisdiction. The ROR prepared in the names of Chamaru and defendant no.6, Exts.C and E shows that

the defendants are in possession of the suit land. Held so, it allowed the appeals. Hence these appeals. It is apt to mention here that during pendency

of the suit, the sole plaintiff died. The legal heirs have been substituted. Â

The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 and 3 of the memorandum of appeal. The same

are:

“1. Whether the plaintiff has acquired the possessory title over the suit land by virtue of Ext.1, 2, 3 and 4 coupled with oral evidence of the P.Ws.

and whether the findings of the learned lower appellate court relating to the possession is perverse and based on nonconsideration of materials on

record ?

Whether the presumptive value of current record of right, i.e., Ext-C and E has been reborted in view of Ext.1 to 4 coupled with the facts that the

defendants have failed to prove the previous partition ?â€​Â

Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr. Birendra Kumar Nayak, learned

counsel, on behalf of Mr. B. Pujari, learned counsel for the respondent no.7. None appeared for the respondent nos.1 to 6.

Mr. Das, learned counsel for the appellant, submitted that Pakla had executed an unregistered gift deed dated 31.12.65 in favour of the father of the

plaintiff and delivered possession. The father of the plaintiff was in possession of the suit property. After his death, the plaintiff is in possession of the

suit property for more than the statutory period peacefully, continuously and with the hostile animus to the defendants and as such perfected title by

way of adverse possession. The finding of the learned lower appellate court that there is no pleading with regard to the adverse possession is

perverse. The suit property was mutated in the name of the plaintiff.Â

Per contra, Mr. Nayak, learned counsel for the respondent no.7, submitted that learned lower appellate court negatived the plea of adverse

possession of the plaintiff. There is no perversity in the said finding.

Sec.123 of the Transfer of Property Act, 1882 (in short, “T.P. Actâ€​), which is relevant, is quoted hereunder.

“123. Transfer how effectedâ€"For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument

signed by or on behalf of the donor, and attested by at least two witnesses.

On a bare reading of Sec.123 of T.P. Act, it is evident that for the purpose of making a gift of immovable property, the transfer must be effected

by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Thus, no title passed by virtue of the

unregistered gift deed.

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. Â

In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical

requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in

the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that “the possession required

must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitorâ€​.

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

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

There is no pleading with regard to adverse possession. Learned lower appellate court on a threadbare analysis of evidence on record and

pleadings negatived the plea of adverse possession.

The matter may be examined from another angle. 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€​

 The substantial questions of law are answered accordingly.

In the wake of aforesaid, the appeals, sans merit, deserve dismissal. Accordingly, the same are dismissed. There shall be no order as to

costs.   Â