MAHESWAR DAS vs RAGHUNATH SAHU SINCE DEAD AND OTHERS

Dr. A.K.Rath, J

1.Defendant no.1 is the appellant against a reversing judgment.

Plaintiff-respondent no.1 instituted a suit for declaration of right, title and interest over the suit property, recovery of possession and permanent

injunction. Case of the plaintiffs is that the suit land originally recorded in the name of Pranathnath Mohapatra in the Sabik ROR. After his death, his

son Sridhar Mohapatra-defendant no.6 succeeded to the property. Defendant no.6 sold the suit land along with other lands measuring an area of

Ac.0.20 dec. to the plaintiffs by means of a registered sale deed dated 29.9.1958 for a valid consideration and thereafter delivered possession. They

constructed a dwelling house over a portion of the same. While the matter stood thus, defendant no.6 sold an area of Ac.0.01 ½ dec. to the plaintiffs

by means of a registered sale deed dated 3.8.1964 and delivered possession. The plaintiffs are in possession of Ac.0.21 ½ dec. The ROR has been

issued in their names. The house of the defendants situates to the east of the suit plot. Since defendants encroached upon the suit land, the plaintiffs

instituted the suit seeking the reliefs mentioned supra.

Defendants 1,2,4 and 5 entered contest and filed a joint written statement. Defendants 3 and 7 filed two separate written statements taking a similar

plea. According to the defendants, defendant no.6 sold an area of Ac.0.10 dec. of land from Sabik Plot No.833 to defendant no.7 on 30.9.1958.

Defendant no.7 again purchased Ac.0.10 dec. of land from one Gobinda Ojha on 8.3.1961. They constructed a dwelling house over the same. In the

Hal ROR, the suit plot has been enhanced to Ac.0.23 dec. from Ac.0.21½ dec. They have not encroached upon the plaintiffs land. Alternatively it is

pleaded that they have perfected title by way of adverse possession.

On the inter se pleadings of the parties, learned trial court framed seven issues. Both the parties led evidence, oral and documentary, in support of

their cases. It is apt to state here that during pendency of the suit, a survey knowing commissioner was appointed at the instance of the plaintiffs. He

submitted the report. Defendants filed objection. The report having been accepted, the defendants filed Civil Revision No.482 of 1991 before this

Court. This Court disposed of the civil revision with an observation that in case defendants made an application, the court shall render all assistance to

them to take a person of their choice to measure the disputed land. The said assistance will, however, not amount to appointment of a commissioner

under Order 26 Rule 9 CPC. After disposal of the civil revision, the defendants measured the land through private amin and submitted the report. The

amin was examined as D.W.4. Learned trial court dismissed the suit holding, inter alia, that the plaintiffs failed to establish the title over the suit plot.

Feeling aggrieved, the plaintiffs filed T.A No.5/93/1/98 before the learned Civil Judge (Senior Division), Keonjhar. Learned appellate court, on

consideration of the report of the commissioner and the evidence available on record, came to hold that the disputed land is a part and parcel of the

plaintiffs’ land. It negatived the plea of adverse possession put forth by the defendants and allowed the appeal.

The second appeal was admitted on the substantial questions of law enumerated in ground nos.2(a) and (b) of the appeal memo. The same are -

“(a) Whether the plaintiff-respondents 1 to 7 are entitled to a decree for title and possession when their admitted case is that they have purchased

Ac.0.21.5 dec. of land, but have claimed Ac.0.23 dec. to be the suit property in the absence of in a case made out for adverse possession.

(b) Whether the learned lower appellate court was correct in dispelling the plea of adverse possession forthwith by the defendants when the plaintiffs-

respondents 1 to 7 have squarely failed on their own saying that they were in possession of the disputed property alleged to be encroached within 12

years of the suit so as to sustain the suit claimed under Articles 64 and 65 of the Limitation Act.â€​

Heard Mr. Ramakanta Mohanty, learned Senior Advocate along with Mr. K.K. Mohapatra, learned counsel for the appellant. None appeared for

the respondents.

Mr. Mohanty, learned Senior Advocate for the appellant submitted that the plaintiffs have purchased an area of Ac. Ac.0.20 dec. of land, but in the

Hal ROR, the same has been enhanced to Ac.0.23 dec. Defendant no.7 has purchased an area of Ac.0.20 dec. The same has been enhanced to

Ac.0.24 dec. The commissioner’s report does not indicate that the defendants have encroached upon the plaintiffs’ land. In view of the same,

learned appellate court committed a manifest illegality and impropriety in placing reliance on the same.

Learned trial court appointed a civil court commissioner to measure the land and submit report. The commissioner submitted the report. The report

having been accepted, defendants filed Civil Revision No.482 of 1991 before this Court. This Court disposed of the civil revision with an observation

that in case defendants made an application, the court shall render all assistance to them to take a person of their choice to measure the disputed land.

It was observed that the said assistance will, however, not amount to appointment of a commissioner under Order 26 Rule 9 CPC. After disposal of

the civil revision, the defendants measured the land through private amin in absence of the plaintiffs and submitted the report. The amin was examined

as D.W.4. Learned appellate court came to hold that after disposal of the civil revision, defendants had not applied before the court that they intended

to measure the suit land by a private amin. The plaintiffs were not in a position to know whether defendants actually measured the land by a private

amin. The order passed in the civil revision has not been complied with. It discarded the report of the private amin on the ground that the land was

measured in the absence of the plaintiffs.

On a threadbare analysis of the evidence on record as well as pleadings, learned appellate court came to a categorical finding that the disputed land

is a part and parcel of plaintiffs’ plot. The defendants have encroached upon a portion of the plaintiffs land. Learned appellate court has not only

scrutinized the report of the civil court commissioner, but also scanned the evidence on record as well as pleadings. It negatived the plea of the

defendants that they have perfected title over the suit plot by way of adverse possession. There is no perversity in the findings of the learned appellate

court. The substantial questions of law are answered accordingly. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal.

Accordingly, the same is dismissed. There shall be no order as to costs.