Mir Abdul Hamid vs Sk. Suffiyan and others

This is plaintiff''s appeal against a confirming judgment in a suit for declaration of right, title and interest, recovery of possession and for

permanent injunction.

Plaintiff''s case is that the suit land originally belonged to Sk. Bakawalla, father of defendant no.1, and other co-sharers. The same had been

recorded in their names in the C.S.R.O.R. There was amicable partition between Sk. Bakawalla and other co-sharers. The suit land fell to the

share of Sk. Bakawalla and accordingly his possession had been reflected in the remarks column of the ROR. While the matter stood thus, one

Hiralal filed a suit against Sk. Bakawalla for realization of money. The suit was decreed. In execution, the property was put to auction. The suit

land was sold to Hiralal and delivery of possession was made to him. After death of Hiralal, his son, Rameswar, granted patta of the suit land to

the ancestor of the plaintiff Sk. Rasuli on 25.6.1949 and delivered possession to him. Sk. Rasuli constructed a house and stayed there with his

family and one widow sister, Gafuran. The defendant nos.2 and 3 are the son and daughter of Sk. Rasuli. Sk. Rasuli died in the year 1950 leaving

behind his widow, Sogra Bibi, widow sister, Gafuran Bibi, and defendant nos.2 and 3. Thereafter Sogra Bibi married to Kalimuddin for the second

time. Gafuran died on 4.9.71. Sk. Gaffar, defendant no.2, with the consent of defendant no.3 and Sogra Bibi, sold the suit land along with the

house to the plaintiff by means of a registered sale deed dated 20.9.71 for a consideration of Rs.200/-. Possession was duly delivered to the

plaintiff. Plaintiff is staying in the house. During major settlement operation, the name of Gafuran was reflected in the yadast. Her name has been

reflected in holding tax receipt. The suit land was Bajyapti Madhyasatwadikari land. The land vested in the State on 13.4.61. But then his tenancy

right had not been affected. The plaintiff filed an application for correction of tenancy ledger. The same was allowed on 17.8.74. But then, the

defendant no.1 filed an application stating therein that rent had been fixed in his favour in R.F. Case No.1989/63-64. On the basis of the said

application, the order dated 17.8.74 was recalled. Against the said order, an appeal is pending. The alternative case of the plaintiff is that he had

perfected title by way of adverse possession. The defendant no.1 having no semblance of right, title and interest over the same, forcibly

dispossessed the plaintiff. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

The defendant no.1 filed a written statement pleading inter alia that the suit is hit under Sec.39 of the Orissa Estates Abolition Act. According to

him, Hiralal was the auction purchaser. After death of Hiralal, his wife and son sold the suit land to him by means of a registered sale deed dated

27.8.57 and delivered possession to him. He is in possession of the suit land. The M.S.R.O.R. had been published in his name. It was further

pleaded that Rameswar had not granted any patta in favour of Sk. Rasuli. His watchman was staying in the house standing over the suit land. The

house was collapsed in the year 1971 and since then, he is raising vegetables over the suit land. Rent had been fixed in his name. The defendant

nos.2 and 3 was set exparte.

Stemming on the pleadings of the parties, learned trial court struck eleven issues. Parties led evidence, oral and documentary, to substantiate

their cases. Learned trial court dismissed the suit holding, inter alia, that Sk. Rasuli took lease of the suit land and resided there. There is no

evidence that the defendant no.2 is the son of Sk. Rasuli. The plaintiff had not acquired title over the suit land by Ext.1. Sk. Rasuli was in

possession of the suit land till his death, but the possession of his heirs is not believable. Defendant no.1 purchased the suit land, vide Ext.E. Since

the proceeding under Sec.145 Cr.P.C. was terminated in his favour, it is presumed that the defendant no.1 was in possession of the suit land. The

order passed in R.F. Case No.1989/63-64 is illegal. The defendant no.1 had not acquired any title over the suit land after vesting, though he is in

possession since prior to vesting. Held so, it dismissed the suit. The unsuccessful plaintiff filed T.A. No.26/55 of 1982/87 before the learned Addl.

District Judge, Bhadrak, which was eventually dismissed.

The second appeal was admitted on the substantial questions of law enumerated in ground nos.1, 2 and 3 of the memorandum of appeal. The

same are: ""1. In view of the evidence of the evidence of P.W.3, the maternal nephew of Sk. Rasuli and in view of the approval of Sogra and

Koresha, the widow and daughter of Sk. Rasuli that the defendant no.2 is the son of Sk. Rasuli, if the courts below committed serious illegality in

holding that the defendant no.2 is not the son of Sk. Rasuli ? 2. In view of the findings of the courts below that there was a lease in favour of Sk.

Rasuli and he was a tenant in respect of the suit land, if the courts below acted illegally in holding that the plaintiff has not acquired any title over the

suit land by virtue of Ext.1 executed by the defendant no.2 ? 3. In view of the finding of the learned trial court that Rasuli was in possession of the

suit land till his death and in absence of any evidence that the heirs of Sk. Rasuli were dispossessed from the suit land at any time, if the finding of

the learned trial court that the defendant no.1 must have possessed the suit land after Rasul''s death is sustainable and if such finding is based on no

evidence on record ?

Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel, for the appellant and Mr. Debasis Nayak, learned

counsel, on behalf of Mr. Srikant Kumar Nayak, learned Senior Advocate, for the respondent no.1.

Mr. Das, learned counsel for the appellant, submitted that the suit land originally belonged to Sk. Bakawalla, father of the defendant no.1. One

Hiralal obtained a money decree against Sk. Bakawalla. In execution of the said money decree, the suit land with other lands was put to auction.

The same was purchased by the decree-holder, Hiralal, and delivery of possession was made to him. After death of Hiralal, his son, Rameswar,

became the karta of the family and granted patta to the ancestor of the plaintiff, Sk. Rasuli on 25.6.49 and delivered possession. Sk. Rasuli

constructed a house over the same and resided there with his family. After death of Sk. Rasuli and his sister, Gafuran, the defendant no.2 with the

consent of defendant no.3 and his mother sold the suit land to the plaintiff by means of a registered sale deed and delivered possession. The

plaintiff''s application for correction of tenancy ledger was allowed. However, the order was recalled on the application filed by the defendant no.1,

against which an appeal is pending. The defendant no.1 had no semblance of right, title and interest over the same. He further contended that the

courts below committed a manifest illegality in holding that defendant no.2 is not the son of Sk. Rasuli in view of the clinching evidence on record.

The courts below fell into patent error in holding that the plaintiff had not acquired any title over the suit land by virtue of the registered sale deed

dated 21.9.71 executed by Sk. Gafar in favour of the plaintiff, Ext.1. He further submitted that the finding of the learned trial court that the

defendant no.1 had been dispossessed from the suit land after death of Sk. Rasuli is perverse. The alternative submission of Mr. Das, learned

counsel for the appellant, is that the plaintiff is in possession of the house peacefully, continuously and with the hostile animus to the defendants for

more than the statutory period and perfected title by way of adverse possession.

Per contra, Mr. Nayak, learned counsel for the respondent no.1, submitted that both the courts concurrently held that defendant no.2 is not the

son of Sk. Rasuli. The plaintiff had not acquired any title over the suit land. Ext.7, the patta did not confer any title on him, since the same was

unregistered. The defendant no.2 had no title over the same. Thus, the plaintiff had not acquired title over suit land by virtue of Ext.1. There is no

perversity in the finding of the courts below.

The suit land originally belonged to Sk. Bakawalla. One Hiralal filed a money suit against him. The suit was decreed. In execution, the suit land

was put to auction. The same was settled in favour of Hiralal. The suit land was sold to Hiralal. The plaintiff asserts that after death of Hiralal, his

son, Rameswar, executed an unregistered patta in favour of Sk. Rasuli, father of defendant no.2 and 3. Sk. Gafar, defendant no.2, with the

consent of his sister, defendant no.3, and mother, alienated the suit land in favour of the plaintiff by means of a registered sale deed for a

consideration of Rs.200/-. Admittedly the valuation of the suit land as would be evident from the registered sale deed, Ext.1, is more than Rs.200/-

. The alleged patta said to have been granted by Rameswar, son of Hiralal, in favour of Sk. Rasuli on 25.6.49, Ext.7, requires registration. Thus,

Sk. Rasuli had no title over the suit land. Both the courts concurrently held that the defendant no.2 is not the son of Sk. Rasuli. Defendant no.2 had

no right to alienate the property in favour of the plaintiff. There is no perversity in the said finding.

Claim of title to the property and adverse possession are in terms of contradictory. In Annasaheb Bapusaheb Patil and others vs. Balwant alias

Balasaheb Babusaheb Patil (dead) by Lrs. and heirs and others, (1995) 2 SCC 543, the apex Court made an indepth analysis of claim of title and

claim to adverse possession over the property. The apex Court in paragraph-15 of the 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 substantial questions of law are answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.