Bhagbat Sahu vs Kirtan Sahu and Others

N.K. Das, J.—Defendant is the Appellant against a revering judgment in a suit for declaration of title, confirmation of possession and in the alternative for recovery of possession. The suit relates to western portion A0.07 decimals of plot no 117 having a total area of A0.47 decimals appertaining to khata No. 25 of village Balibaruan. The case of Plaintiffs is that their grand father purchased this property in 1931 for Rs. 38/ - and was in possession of the same and after him Plaintiffs have been in possession. Defendant falsely claims possession over it and started a Criminal case u/s 145, Code of Criminal Procedure against the Plaintiffs. In that case possession of the Defendant was declared wrongly and hence this suit.

The Defendant in the written statement contends that the disputed property was never sold to the grand father of the Plaintiffs. The declaration of possession in the proceeding u/s 145, Code of Criminal Procedure is correct and the Defendant is in possession of the suit property. It is further contended that the Plaintiffs have not been able to prove possession within the statutory period and as such the suit is not maintainable.

The trial Court held that the sale deed is genuine but the Plaintiffs have failed to prove possession within 12 years prior to the institution of the suit. In appeal it was held that the Plaintiffs have been in possession within the statutory period and the Defendant failed to establish acquisition of title by adverse possession. Against that judgment S.A. No. 622/65 was preferred and this Court held that Plaintiffs had title to the property and remanded the suit to the lower appellate Court for consideration of evidence regarding possession adduced by both sides as decision of the appellate Court was not based on discussion or appreciation of evidence on record.

After remand the appellate Court held that the evidence of possession on both sides is not satisfactory though not unworthy of credit and as such the inference of possession can be drawn from title and thus found Plaintiffs'' possession to the suit land and passed a decree for recovery of possession. As against this judgment the present Second Appeal has been preferred.

It is contended by the Appellant that when the lower appellate Court has disbelieved the evidence of the Plaintiffs he should have accepted the evidence from the side of the Defendant. In this connection my attention was drawn to some evidence on the record relating to the witnesses and it was contended that the position of samadhi on the disputed land proves possession of the Defendant. It was also argued that the evidence of the pleader commissioner should not have been thrown out on the ground that he has no experience of survey and the appellate Court has committed error in accepting his statement.

The appellate Court has held that evidence of both the sides is not satisfactory, but the evidence of witnesses cannot be said unworthy of credit. In other words he has said that the evidence from both sides of the witnesses is worthy of credit and has come to the conclusion that the oral evidence adduced is not satisfactory. When witnesses are credible this Court cannot go into the question whether the evidence of one side is more satisfactory than the other as found by the Court below. Even if after considering the evidence a different conclusion can be drawn, that is not a ground to interfere with the decision of the lower appellate Court.

The question of onus in a case like this is purely academic. The lower appellate Court has discussed the entire evidence adduced on both sides and has based his finding on the appraisal of the entire evidence on record. In the circumstances the question of onus recedes to the background.

If after appraisal of credible evidence available on the record the first appellate Court comes to a conclusion on facts, High Court will not interfere in second appeal. In this case the samadhi came into existence in 1963. The existence offence is of no value which has been placed after disposal of the criminal proceeding. Even if the error of mathematical calculation of age as made by Court below is set aside, still then on the sum total of evidence on record, the finding of the Court below cannot be said to be perverse or suffer from defect of procedure or illegality.

In the case of Maharaja Sudhansu Sekher Singh Deo v. Haribansha Singh Deo ILR 1960 Cutt 395 it has been held that:

It cannot be laid down as a rule of universal application that in a suit for ejectment on the ground of dispossession, the presumption of possession arising from admitted or proved title is not at all available. It is controvertible that ordinarily in a suit for ejectment the Plaintiff must prove his antecedent title and possession within the statutory period. But cases may arise where possession may be inferred only from title and other circumstances of the case even though the evidence may not conclusively establish actual physical possession.

It has also been held in that decision that such a presumption is not available if the evidence adduced is unworthy of credit. But the presumption is available where evidence of both sides is weak or wholly incredible. This decision has again been followed by this Court in the case of Ramkrishna Panda Vs. Arjuno Padhano and Others, .

Considering the present case on the above principles it has been held by the lower appellate Court that the evidence of possession from both sides is unsatisfactory but the witnesses are not incredible and as such the presumption of possession following title is available to the Plaintiffs. Therefore, I hold that the decision of the lower appellate Court is quite consistent with the principles laid above. This appeal, therefore, has no merit. The appeal fails and is dismissed, but in the circumstances of the case there would be no order for costs.