Raghu Bagar vs Baikuntha Gour alias Sandha and another

Dr. A.K. Rath, J. Â

This is a defendant’s appeal against reversing judgment.

Plaintiff-respondent no.1 instituted the suit for declaration of right, title and interest over the suit property and confirmation of possession. The case

of the plaintiff was that the suit property was the ancestral property of Rushi Goud. Rushi Goud died leaving behind him sons Hiad, Baikuntha,

plaintiff, and Maheswar. Hiad died leaving behind him son, Sankri. Maheswar died issueless. The plaintiff and proforma defendant are the surviving

heirs. He is in possession over the suit land. Defendant no.1 had no semblance of right, title and interest over the same. Defendant no.1 managed to

get his name recorded in the major settlement R.O.R. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.Â

The defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. The specific case of the defendant no.1

was that Rushi sold the suit land to one Kangalu Chamar prior to 1945. The suit land had been mutated in the name of Kangalu. After his death, his

son Baldev Chamar sold the suit land to one Ramesh Chandra Panda by means of a registered sale deed of the year 1969. Thereafter, Ramesh sold

the suit land to the defendant no.1 by means of a registered sale deed of the year 1970. He is in possession of the suit land peacefully, continuously

and with the hostile animus of the true owner for more than the statutory period and as such perfected title by way of adverse possession.

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

respective cases. Learned trial court dismissed the suit holding inter alia that plaintiff had failed to prove that he inherited the suit land and possess the

same. In the year 1969, Baldev Chamar, s/o-Kangalu Chamar had alienated the suit land to Ramesh Chandra Panda and thereafter Ramesh sold it to

the defendant no.1 by means of a registered sale deed of the year 1971. The plaintiff had no right, title and interest over the suit land. Defendant no.1

had perfected title over the suit land. Assailing the judgment and decree of the learned trial court, the plaintiff filed T.A. No.27 of 1988 before the

learned District Judge, Sambalpur. Learned appellate court came to hold that defendant no.1 neither pleaded nor proved that sale in faovur of

Kangalu. The finding of the learned trial court regarding sale of the suit land by Rushi to Kangalu is not correct. Kangalu had not acquired any right,

title and interest over the suit land. The defendant no.1 failed to prove the sale of the suit land by Baldev in favour of Ramesh Chandra Panda.

Defendant no.1 had not been able to prove that Ramesh had acquired valid title over the suit land before 1970. Ext.A cannot be the source of title as

claimed by defendant no.1. Held so, it allowed the appeal.

The second appeal was admitted on the substantial question of law enumerated in ground no.1 of the memorandum of appeal. The same is:

“1. For that defendant no.1 having categorically averred in paragraph 5 of his written statement that he is in possession over the suit land since the

date of purchase to the knowledge of the plaintiff and perfected title by way of adverse possession and led evidence regarding his possession over the

suit land coupled with the rent receipts filed by defendant no.1 vide Ext.C and note of possession in his favour made in the certified copy of the record

of right under Ext.1, whether the learned lower appellate court is justified in saying that defendant no.1 cannot claim title to the suit land by way of

adverse possession on the ground that the suit land is the joint family property of the plaintiff and proforma defendant no.2 in the absence of any

partition ? â€​

Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appears for the respondents.

Mr. Das, learned counsel for the appellant, submits that Rushi was the original owner of the suit land. He alienated the same to Kangalu Chamar

much prior to 1945. The suit land had been mutated in the name of Kangalu. After his death, his son Baldev Chamar sold the suit land to one Ramesh

Chandra Panda by means of a registered sale deed of the year 1969. Thereafter, Ramesh sold the suit land to the defendant no.1 by means of a

registered sale deed of the year 1970 for a valid consideration and delivered possession. Defendant no.1 is in possession of the suit land peacefully,

continuously and with the hostile animus of the true owner and as such perfected title by way of adverse possession. Learned trial court on an analysis

of evidence and pleadings dismissed the suit. But the learned appellate court reversed the same on untenable and unsupportable grounds.

Admittedly the suit land originally belonged to Rushi. Rushi died leaving behind him sons, Hiad, Baikuntha and Maheswar. Plaintiff is the son of

Rushi. Defendant no.1 asserted that Rushi sold the suit land to Kangalu much prior to 1945, whereafter the suit land had been mutated in the name of

Kangalu. After death of Kangalu, his son, Baldev, sold the suit land to one Ramesh Chandra Panda by means of a registered sale deed of the year

1969. Thereafter, Ramesh sold the suit land to the defendant no.1 by means of a registered sale deed of the year 1970. There is no evidence on

record that Rushi sold the suit land to Kangalu Chamar. Any successive alienation will not confer title.

The claim of title to the property and adverse possession are in terms 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 in-depth 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.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€​ The substantial question of law has been answered accordingly.

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