Kintali Samba Murty vs Bidika Arichito and Others

S.K. Ray, A.C.J.

This is a second appeal of the Plaintiff from the reversing decision of the District Judge, Koraput dated 31-7-1972 passed in Title Appeal No. 18 of 1970.

The Plaintiff filed the suit for declaration of title, recovery of possession and damages. The suit land has been described in schedule ''C'' of the plaint.

The Plaintiff''s case is that the suit land is a part of land appertaining to patta No. 34 measuring Ac. 1.10 decimals which originally belonged to Bisoi family. Balunki Bisoi and Pano Bisoi sold Ac. 1. 10 dec. to one K. Somabramham under the sale deed Ext. 1 dated 16-10-1947. This land was described in schedule'' A'' of the plaint. The vendee Somabramham sold portions of this land to different persons later on. He sold the northern portion of the land measuring 100 ft. East-west and 181/2 ft. North-South to the Plaintiff under the sale deed dated 20-9-1956 (Ext. 2). This area is described in schedule ''B'' of the plaint. After his purchase the Plaintiff constructed a shed in 1956 on the eastern portion of the suit land and let it out to one B. Paidamma who executed a lease deed dated 3-8-1957 (Ext. 3). Upon construction of the shed that portion was duly constituted as N.A.C. holding No. 208. After B. Paidamma left, the Plaintiff leased the shed to one A. Gantayat under the lease deed dated 1-9-1965 (Ext. 10). This lessee having died in 1966, his family members left the shed. Thereafter the Defendants who have no manner of right, title and interest in respect of the suit land trespassed upon it on 2-11-966 and demolished the hut and constructed new huts of their own. In consequence, a criminal case was instituted which ended in acquittal of the Defendants. So the Plaintiff has filed this suit for the aforesaid reliefs.

Defendants 1 and 3 are husband and wife and Defendant No. 2 is their son. The defence in their joint written statement is that the suit land is not a part of patta No. 34. The Plaintiff has not acquired any title to it nor was he ever in possession thereof. The Defendants have acquired title to it by adverse possession. Their case that the suit land is their ancestral property has not been believed by any of the Courts below.

Trial Court decreed the suit on finding that the Plaintiff had acquired title to it by purchase and that he was in possession of it till 2-1-1966 when the Defendants forcibly ousted him. Consequently the Defendants'' plea that they acquired title by adverse possession has not been made out. He also granted past damages of Rs. 481. 75 paise and future damages at the rate of Rs. 7/ - per month.

The lower appellate Court reversed all the findings of the trial Court and dismissed the suit. He has held specifically that the Defendants have acquired title by adverse possession.

I find that the trial Court has carefully discussed and analysed both oral and documentary evidence adduced on both sides in rendering his findings of fact. He has given great stress on the evidence which has established that the suit land is a part of land covered under patta No. 34 and adjoins the public road on the East and that there is no vacant land intervening between the road and the land under patta No. 34. Considering the boundaries of various lands under Exts. 1, 2, 3, 4, and 5 series. 9, 10, 11 and 14 read with the evidence of P.W. 8 he came to'' the conclusion that the suit site which is a part of the land under Ext. 1 stretches up to the N.A.C. road to its East and that the defence plea that between the N.A.C. road and the land under Ext. 1 there is a vacant site is not true. He discarded the defence evidence on account of material variation between the Defendants'' case as to title in the written statement and oral evidence adduced on that point in Court. He ultimately held that the Plaintiff had established his title to the suit site. On a thorough discussion of oral and documentary evidence he has rendered a finding that the Plaintiff was in possession of the suit site from 1956 till the Defendants occupied it forcibly. The lower appellate Court which is the final Court of fact has not taken pains to traverse the grounds which constituted the basis of the findings of the trial Court who had the opportunity of noticing the demeanour of witnesses. He does not appear to have adverted to the question of identity of the suit land as a part of land under Ext. 1 and has not considered the falsity of the defence case as a factor militating against the truth of the evidence led on their side not only with regard to title but also with regard to possession. In fact, he has committed some errors of record, namely, when he states that there is absolutely no evidence to show that either Balunke Bisoi or Pano Bisoi ever possessed the suit land while, in fact, P.W. 1 has spoken of their possession over the suit land. Various PWs. who are boundary witnesses and have talked of possession of the Plaintiff and, before him, of his vendors have not been properly appraised. P.w. 5 who is also a witness of possession has not at all been considered by the lower appellate Court. Without attempting to assess with reference to circumstances, and also intrinsically, the evidence of possession on the side of the Plaintiff, he has concluded that the evidence of possession of the Defendants seems to be mere convincing than the evidence of possession of the Plaintiff. That is an ill-considered and hasty finding. Then again, even assuming that Defendants'' evidence of possession is better than Plaintiff''s evidence of possession, nevertheless, it was his bounden duty to scan such evidence before coming to his conclusion that the Defendants have acquired title to it by adverse possession. The onus of proof of adverse possession is always on the party who alleges the same. Before declaring title on the footing of adverse possession the Court must first of all carefully determine the point of time when adverse possession is said to have commenced and that such adverse possession was continuous in duration for twelve years or more in the aggregate. The question of adverse possession does not appear to have been carefully considered. On the whole the judgment of the lower appellate Court is not at all satisfactory in the matter of appraisement of evidence and all the circumstances appearing on record. As already stated he has also committed some errors of record and has refrained from meeting the grounds on which the trial Court based his findings. As a final Court of fact he should have essentially traversed all these grounds. Though he does not lack jurisdiction to reverse any finding o~ the trial Court, yet before doing so the lower appellate Court should always bear in mind that if the finding of the trial Court is reasonably sustainable on evidence on record it should not be interfered with normally except for very cogent reasons. The lower appellate Court has failed to remember this principle. For the aforesaid reasons I think it is just and proper that the matter must go back to the first appellate Court for reappraisement of evidence after hearing the counsel for the parties.

In the result, the judgment and decree of the lower appellate Court are set aside and the case is remitted back to him for fresh disposal in accordance with law bearing in mind the observations made above. Costs will abide the result.

Appeal is allowed and remanded.