Mohan Kurumi vs Lalsai Kurumi and others

Dr.A.K.RATH, J.

1.This is a plaintiff’s appeal against reversing judgment in a suit for eviction and recovery of possession.

The case of the plaintiff was that the suit land was recorded jointly in the name of Sabitri Kurumi, his mother along with her two sisters, namely,

Janaki and Jayanti. They were in joint possession of the suit land. Jayanti died leaving behind her only daughter-Jhirimiti. In the hal settlement, the land

had been recorded in their names. They were in possession of the suit land. They used to pay rent. In the year 1991, the plaintiff raised crops over the

suit land. The defendants, who had no semblance of right, title and interest over the suit land, obstructed in harvesting the crops. He filed M.C.Case

No.333 of 1991 before S.D.M., Nabarangpur for attachment of the property. By order dated 28.8.1993, the S.D.M., Nabarangpur declared the

possession in favour of the defendants. With this factual scenario, he instituted the suit as a power of attorney holder of his mother and mothers’

sisters.

The defendants entered contest and filed written statement denying the assertions made in the plaint. According to them, the suit land originally

belonged to three sisters, namely, Sabitri, Jayanti and Janiki. They sold three acres of land to one Parikhita Naik, father of defendant no.3 by means of

an unregistered sale deed dated 5.3.1962 and delivered possession. Parikhita Naik was in possession of the suit land. While the matter stood thus, on

14.3.1962 Sabitri sold two acres of land to Chera Kurumi and Bhubani Kurumi by means of an unregistered sale deed and delivered possession. On

19.2.1972, Janiki sold a portion of the suit land to defendant no.1 by means of an unregistered sale deed and delivered possession. It is further pleaded

that the plaintiff has no right, title and interest over the suit land. The defendants have perfected title by way of adverse possession.

On the inter se pleadings of the parties, learned trial court framed seven issues. Learned trial court decreed the suit holding, inter alia, that R.O.R.,

Ext.2, coupled with rent receipts, Ext.3 and Ext.3/1 show that the plaintiff is in possession of the suit land. The plaintiff has title over the suit land. By

means of unregistered sale deeds, Exts.A, B and H, no title has passed. Feeling aggrieved, defendants 1 to 3 filed T.A.No.4 of 1996 before the

learned Civil Judge (Senior Division), Nabarangpur. The learned appellate court came to hold that unregistered sale deeds, Exts. A, B & H can be

utilized for collateral purpose. Defendants are in possession of the land for more than twelve years peacefully, continuously and to the hostile animus

of the true owners and as such perfected title by way of adverse possession. Held so, it allowed the appeal.

The Second Appeal was admitted on the following substantial questions of law.

“(1) Whether it was correct on the part of the learned lower appellate court in dismissing the plaintiff’s suit with the finding that the defendants

have acquired title by adverse possession ;

(2) Whether such finding in favour of the defendants was supported by any evidence on record & because of non-consideration of the evidence from

the side of the plaintiff ?â€​

Heard Mr.A.K.Nanda, learned Advocate along with Mr.G.N.Sahu, learned Advocate for the appellant and Mr.P.K.Das, learned Advocate for the

respondents.

Mr.Nanda, learned Advocate for the appellant submits that mother of the plaintiff and his mothers’ two sisters are the absolute owner in

possession of the suit land. R.O.R. has been published in their names. They have not alienated any land in favour of the defendants. Valuation of the

suit property was more than 100/-. The sale deeds required compulsory registration under Section 17 of the Registration Act. Thus, no title passed to

the defendants. He further submits that there is neither any plea nor evidence on record that the defendants have perfected title by way of adverse

possession.

Per contra, Mr.Das, learned Advocate for the respondents submits that the suit was filed for recovery of possession. The suit was barred by

limitation. He further contends that Sabitri had executed an unregistered sale deed in favour of Cheri Kurumi on 15.4.1962. Jayanti had also executed

an unregistered sale deed in favour of Parikhit Naik on 5.3.1962. Similarly, Janaki had executed an unregistered sale deed in favour of Lalsai Kurmi

(defendant no.1) on 19.2.1973. The unregistered sale deeds can be used for collateral purpose. The defendants used to pay rent. The defendants are

in possession of the suit land peacefully, continuously with the hostile animus to their vendors and, as such, perfected title by way of adverse

possession. There is no perversity or illegality in the finding of the learned appellate court. He further contends that the power of attorney holder

cannot institute the suit.

The defendants assert that the original owners, namely, Sabitri, Janaki and Jayanti had executed three sale deeds in favour of the defendants by

means of an unregistered sale deeds for a valid consideration and thereafter delivered possession. Alternatively they take the plea of adverse

possession.

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

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.â€​

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€​

There is no pleading that the defendants are in possession of the suit land peacefully and continuously with the hostile animus to their vendors. The

date of entry into the suit land has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the defendants have

perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and

proved.

Valuation of the suit property was more than Rs.100/- The same required registration under Section 17 of the Registration Act. Thus, no title has

passed to the defendants. The submission of Mr.Das, learned Advocate for the respondents that the suit is barred by limitation, is difficult to fathom.

The suit was instituted for eviction and recovery of possession. With regard to maintainability of the suit, there is neither any pleading nor any issue

has been framed to that effect. The substantial questions of law are answered accordingly.

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