BHIMSEN TANTY ALIAS GANDA vs GHASSIA ORAM AND ANOTHER

Dr. A.K.Rath, J

1.This is a plaintiff’s appeal against confirming judgment. The suit was for declaration of right, title and interest, declaration that the sale deed

no.1678 of 1980 as void, confirmation of possession and certain other ancillary reliefs.

Case of the plaintiff was that one Sriram Gardia was the owner of the suit land. He sold the suit property to the plaintiff by means of an

unregistered sale deed dated 5.12.1997 for a consideration of Rs.1000/. Possession was delivered to him. Thereafter, he sold the suit land and other

lands to the plaintiff by means of a registered sale deed dated 20.4.1990 for a valid consideration. Plaintiff made an application before the Addl.

Tahasildar to mutate the land. The Addl. Tahasildar rejected the application on the ground that the suit land had been mutated in favour of defendant

no.1. Plaintiff came to know that Sriram Gardia had executed a sale deed in respect of the suit land in favour of defendant no.1. Though notice was

issued to the defendants, but then they chose not to contest the case and as such, were set ex parte. To substantiate the case, the plaintiff had

examined one witness and on his behalf, six documents had been exhibited. Learned trial court came to hold that prior to execution of the sale deed

vide Ext.3, the vendor had already executed a sale deed in favour of defendant no.1 on 9.12.1980. The plaintiff was not in possession of the suit land.

Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned District Judge, Sundargarh in Title Appeal

No.24 of 1998, which was eventually dismissed.

The second appeal was admitted on the following substantial question of law;

“Whether the courts below have acted contrary to law in not decreeing the suit under Order 8 Rule 5 of the CPC as the defendant did not contest

the suit and the oral and documentary evidence adduced by the plaintiff remained unchallenged.â€​

Heard Mr. Umesh Chandra Patnaik along with Mr. Somnath Patnaik, learned counsel for the appellant and Mr. Ramakanta Mohanty, learned

Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for the respondent.

Mr. Patnaik, learned counsel for the appellant submitted that the defendants were set ex parte. In such a contingency, the courts below ought to

have decreed the suit under Order 8 Rule 5 CPC applying the doctrine of non-traverse. He further contended that the evidence on record reveals that

Sriram Gardia, vendor of the plaintiff, had executed an unregistered sale deed on 5.12.1997 and delivered possession of the suit land to the plaintiff.

Thereafter, he executed the registered sale deed in favour of the plaintiff. During pendency of the appeal, defendant no.1 sold a part of the suit plot to

one Rajiv Naik in the year 2012 and Dase Oram in the year 2011 respectively. The plaintiff filed Civil Suit No.51 of 2013 in the court of the learned

Civil Judge (Senior Division), Sundargarh praying for declaration of title and permanent injunction. Learned trial court came to hold that the plaintiff is

in possession of the suit plot. He further contended that the plaintiff is in possession of the suit land peacefully, continuously and to the hostile animus

of the defendant no.1 for more than the statutory period and as such, perfected title by way of adverse possession. Learned courts below did not delve

deep into the matter. On untenable and unsupportable grounds learned appellate court negatived the claim of the plaintiff. He placed reliance on the

decisions in the case of Shri Bhagwan Sharma v. Smt. Bani Ghosh, AIR 1993 SC 398, Bondar Singh and others v. Nihal Singh and others, AIR 2003

SC 1905 and Mathew Elenjical and another v. The Nagpur Roman Catholic Diocesan Corpn. (P) Ltd., AIR 1978 MP 39.

Per contra Mr. Mohanty, learned Senior Advocate for the respondent submitted that Sriram Gardia sold the suit land to the defendant no.1 by

means of a registered sale deed dated 9.12.1980 and delivered possession to him. Much thereafter, he sold the self-same property to the plaintiff on

5.12.1997. The vendor had no title to the property, when he sold the suit land to the plaintiff. Referring to the provisions contained in Rules 1, 5 and 10

of Order 8 CPC, he contended that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant

or to make such other appropriate order as the court may think fit. Where there is no written statement, the court is not bound to accept the

statements contained in the plaint and pass a decree straightway. He relied on the decision of the apex Court in the case of Modula India v.

Kamakshya Singh Deo, AIR 1989 SC 162.

Order 8 Rule 5(2) CPC provides that where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the

basis of the facts contained in the plaint, except as against a person under a disability, but the court may, in its discretion, require any such fact to be

proved.

Order 8 Rule 10 CPC provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same

within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to

the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

Both the provisions were the subject-matter of interpretation in Modula India (supra). The apex Court held that these rules are permissive in nature.

They enable the court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein.

Though the language of Rule 10 says that the court shall pronounce judgment against him, it is obvious from the language of the rule that there is still

an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the

court may think fit. Therefore, there is nothing in the rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff

straightway because a written statement has not been filed. Sub-rule (1) of Rule 5 has application only in a case where a pleading is filed, but does not

contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use of

to sustain the contention that where there is no written statement the court is bound to accept the statement contained in the plaint and pass a decree

straightway. Even in such cases it is a matter for the court to exercise discretion as to the manner in which the further proceedings should take place.

In Balraj Taneja and another v. Sunil Madan and another, AIR 1999 SC 3381, the apex Court held that the Court has not to act blindly upon the

admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written

statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a

written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing

the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could

possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and,

therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a

judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact

involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without

requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression ""the Court may, in its

discretion, require any such fact to be proved"" used in sub- rule (2) of Rule 5 of Order 8, or the expression ""may make such order in relation to the suit

as it thinks fit"" used in Rule 10 of Order 8.

In Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 SC 2508 the apex Court held that in a case which has proceeded ex parte the court is

not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court would scrutinize

the available pleadings and documents, consider the evidence adduced and would do well to frame the 'point for determination' and proceed to

construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence

the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.

In Mathew Elenjical (supra), the Madhya Pradesh High Court held that on failure of the defendant to file the written statement required under

Rule 1 the Court’s power under sub-rule (2) of Rule 5 is attracted which gives a discretion to the Court to either pronounce a judgment in

plaintiff’s favour for mere non-filing of the written statement or not to do so, depending on the facts of a particular case.

Reverting to the facts of the case at hand and keeping in view the aforesaid principles, this Court finds that Sriram Gardia sold the suit land to

defendant no.1 on 9.12.1980 and delivered possession to him. He again executed a sale deed in respect of the suit land in favour of the plaintiff by

means of a registered sale deed on 5.12.1997. By the time the execution of the registered sale deed in favour of the plaintiff he had no title over the

same. Thus no title passes to the plaintiff.

The claim of title to the property and adverse possession are in terms contradictory.

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€​

In Shri Bhagwan Sharma (supra), the apex Court had an occasion to deal with the power of the High Court under Sec. 100 CPC. Scope of Sec.

100 CPC is well known.

In Bondar Singh (supra), the apex Court held that even though the sale deed not admissible in evidence can be looked into for collateral purposes.

There is no quarrel over the proposition of law.

On an anatomy of the pleadings and the evidence on record both the courts negatived the claim of the plaintiff over the suit property. There is no

perversity or illegality in the said findings. The substantial question of law is answered accordingly.

A priori, the appeal fails and is dismissed. There shall be no order as to costs.