Kishore Chandra Sabat (dead) vs Raghunath Sabat (dead)

These appeals are directed against a common judgment and decree passed by the learned 2nd A.D.J., Berhampur in Title Appeal No.38 of

1988 (T.A.No.3/86 GDC) & T.A.No.39 of 1988 (T.A.No.2/86 GDC), whereby and whereunder, the learned appellate court dismissed the

appeals and confirmed the judgment and decree passed by the learned Subordinate Judge, Berhampur in T.S.No.43 of 1984 and T.S.No.42 of

1984 respectively.

This is a dispute between the father and sons. The plaintiff-appellant instituted T.S.No.43 of 1984 for declaration of title and certain ancillary

relief. The plaintiff''s case was that on 27.2.1959, the suit house was jointly purchased by Radhakrushna Panigrahi and his father Raghunath Sabat,

defendant no.1. Defendant no.1 was a benamidar. The plaintiff paid the money. The plaintiff requested his father to execute a nominal sale deed in

his favour, but his father did not agree. His brother, defendant no.2, Arjun Sabat tried to get the sale deed in his favour.

Defendant no.1 filed a written statement pleading inter alia that in the year 1953, there was a partition between the father and his sons. He paid

the consideration amount. He was the owner of the suit house. Transaction was not benami. The plaintiff had not paid any amount. On 8.5.1971,

he sold the house to his son, defendant no.2. Defendant no.2 filed a written statement stating therein that his father was owner of the suit house. On

8.5.1971, his father sold the same to him. The plaintiff occupied a portion of the suit house with his permission. Thereafter, he did not vacate the

same. T.S.No.42 of 1984 was instituted by Arjun against his brother, Kishore for recovery of possession. Pleadings in both the suits are same.

Both the suits were tried analogously. The parties led evidence, oral and documentary to substantiate their case. On an anatomy of the pleadings

and evidence on record, the learned trial court came to hold that Kishore did not purchase the suit house. Arjun was the rightful owner in

possession of the suit house. Kishore was staying over the same with permission. Held so, it dismissed the suit. Assailing the said judgment and

decree, the plaintiff filed two appeals i.e., T.A.No.3/86 & T.A.No.39 of 1988, before the learned District Judge, Berhampur, which were

subsequently transferred to the court of the learned A.D.J., Berhampur and renumbered as Title Appeal No.38 of 1988 (T.A.No.3/86 GDC) &

T.A.No.39 of 1988 (T.A.No.2/86 GDC). Both the appeals were eventually dismissed. It is apt to state here that during pendency of this appeal,

the sole appellant died, whereafter his legal heirs have been substituted. Similarly, after death of respondent no.1, his legal heirs have been

substituted.

Second Appeal No.26 of 1984 was admitted on 3.8.1989 on the substantial questions of law enumerated in ground nos.1 & 5 of the appeal

memo. The same are :- ""1. If there is sufficient nucleolus for acquisition of joint family property and if a coparcener alleges that the properties are

his self acquired properties, in such circumstances, whether onus would lie on the party to prove that the properties acquired by him is his self

acquired property and the onus lies on him to prove that the property was not acquired from the joint family nucleous on the principle that the

plaintiff must prove his case. In such view of the matter whether the plaintiff in T.S.No.42/84 prove his case and as such the impugned judgment

and decree are illegal and liable to be set aside.

Whether judgment and decree passed by the learned courts below are bad in law on account of errors apparent in the face of record and

whether the impugned judgments and decrees are vitiated on account of such errors apparent ?"" 5. Second Appeal No.25 of 1989 was also

admitted on the substantial questions of law enumerated as above. A Bench of this Court observed that both the appeals be heard analogously.

Heard Mr.Sidartha Mishra, learned Advocate on behalf of Mr.B.B.Ratho, learned Senior Advocate for the appellants and Mr.Sailesh

Samantray, learned Advocate for the respondent no.1(a).

Mr.Mishra, learned Advocate for the appellants submitted that plaintiff has paid the entire consideration amount to purchase the suit schedule

house. His father was the benamidar. The suit property was clandestinely sold by his father to defendant no.2. He further submitted that defendant

no.2 was in possession of the suit house peacefully, continuously and with the hostile animus to the plaintiff and defendant no.1 and, as such,

perfected title by way of adverse possession. No issue was framed. Thus, the judgments are vitiated.

Per contra, Mr.Samantray, learned Advocate for respondent no.1(a) submitted that both the courts below concurrently held that the suit

schedule house was purchased by his father, Raghunath. He sold the same to one of his son, namely, Arjun. There is no perversity in the said

findings. He further contended that adverse possession is a mixed question of fact and law. The learned appellate court negatived the plea of

adverse possession. Both the courts below concurrently held that the suit schedule house was purchased by Raghunath. The plaintiffappellant had

failed to prove that he purchased the suit house in the name of his father-Raghunath. There is no perversity in the findings of the courts below.

Adverse possession is not a pure question of law but a blended one of fact and law. In Karnataka Board of Wakf vs. Govt. of India and others,

(2004) 10 SCC 779, the apex Court observed as under :- ""In the eye of the law, an owner would be deemed to be in possession of a property so

long as there is no intrusion. Non-use of the property by the owner even for a long time won''t affect his title. But the position will be altered when

another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile

title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is

nec vi, nec clam, nec precario"", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to

show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible,

exclusive, hostile and continued over the statutory period. The court further observed that plea of adverse possession is not a pure question of law

but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b)

what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has

continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying

to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."" (emphasis

laid)

On a bare perusal of the plaint, it is evident that plaintiff has not pleaded that he has perfected title by way of adverse possession. The courts

below came to a conclusion that plaintiff''s possession is permissive.

Further the date of entry into the suit house by the plaintiff has not been mentioned. Mere possession of the suit land for long time is not

sufficient to hold that the defendant 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.

The matter may be examined from another angle. The plaintiff''s claim of title to the property and adverse possession are in terms

contradictory.

In Annasaheb Bapusaheb Patil and others Vrs. 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 said 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."" 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.

Both the courts below concurrently held that the suit schedule house was purchased by Raghunath. The plaintiff had failed to prove that he

purchased the suit house in the name of his father-Raghunath. There is no perversity in the findings of the courts below. The substantial questions of

law are answered accordingly.

In the wake of the aforesaid, the appeals, sans merit, deserve dismissal. Accordingly, the same are dismissed.