Sri Sisu Tandia vs Dukhi Dei and Others

S. Acharya, J.—Defendant No. 1 has preferred this appeal against the reversing decision of the Additional District Judge, Sundargarh, passed in Title Appeal No. 7 of 1971.

The Plaintiff has filed this suit for declaration of his title and recovery of possession of 0.06 decimals of Gharbari land appertaining to survey plot No. 214 in village Mangaspur. Admittedly the said plot belonged to the father of the Plaintiff and after the death of his father the Plaintiff came to village and wanted to take possession of the said land, but the Defendants did not allow him to take possession of the same. Hence the suit.

Defendants 2 and 3 are proforma Respondents in this appeal. Defendant No. 2 is the wife and Defendant No. 3 is the son of Defendant No. 1 Defendants 1, 2 and 3 filed a joint written statement. According to them 28 years back they purchased this 6 decimals of the suit land from one Tika, uncle of the Plaintiff. After purchasing the said plot of land they constructed a pucca house on the same land have been in possession of the said suit site since that time. They also alternatively claim to have perfected their title to the suit land by adverse possession.

In the trial court the Defendants conceded that it was not possible for them to assert their above-mentioned claim to the suit land on the basis of their case of purchasing the same. The trial court, however, found that Defendant No. 1 was in possession of the suit land and he perfected his title to the same by adverse possession.

The appellate Court finds that Defendant No. 1 has not been able to establish his title to the suit land by purchasing the same from Tika. It also finds that Defendant No. 1 is using the suit land as a thrashing floor and cow-dung pit and that way he is in possession of the same by way of convenience, in the absence of the Plaintiff and without any tacit disapproval either of Tika or of the Plaintiff. It also finds that the possession of the suit land by Defendant No. 1 was not hostile to the Plaintiff and accordingly he has not perfected his title to the same by adverse possession.

It is urged by Mr. Ray, the learned Counsel for the Appellant, that the above-mentioned, finding of the appellate Court, that Defendant No. 1 has not been able to establish that he perfected his title to the suit land by adverse possession is entirely wrong as it is based on irrelevant consideration by losing sight of certain important features appearing in the, evidence on record. It is well settled that Defendant No. 1 who claims to have perfected his title by adverse possession most show by clear, and unequivocal evidence that his possession was hostile to the Plaintiff and amounted to a denial of the Plaintiff''s title to the suit property. Mr. Ray urges that on the evidence on record it is established that the possession of the suit lands by Defendant No. 1 was in no way permissive but was hostile in all respects to the Plaintiff Mr. Ray submits that there is evidence on record to show that Defendant No. 1 had constructed a house many years back on the suit land and in, support of his said contention he read out the evidence of Defendant No. 1 (d.w.3) before me. On a perusal of his evidence I find that Defendant No. 1 himself has not asserted in clear and categorical terms that he has constructed a pucca house on the suit land itself. His evidence about the exact place and land on which he constructed a house is vague, as he merely states that he purchased a site about 15-16 cubits in width and 40-50 cubits in length, which includes the suit land, for Rs. 2, 000/ - from Tika, and thereafter constructed a home thereon and is now residing in the same house. From this sentence shown to me by Mr. Ray it cannot be said that Defendant No. 1 ha~ definitely stated that he actually constructed his house right on the suit land as alleged by Mr. Ray.

Apart from this deficiency and short coming in the evidence of Defendant No. 1 himself, none of his witnesses supports the case of the construction of a house by Defendant No. 1 on the suit site. D.w.1 states that Tika and his mother sold the suit land and another site over which the residential house of Defendant No. 1 now stands to Defendant No. 1. After that "Defendant No. 1 constructed his house and was using the suit site as his thrashing floor and cow-dung pit. "d.w.2 in his examination- in-chief itself has stated that "the suit land is in possession of Defendant No. 1 as his thrashing floor and for raising seasonal vegetables." Later on he has also stated that "Defendant No. 1 has his house adjoining the suit Khala Badi". All the above evidence do not support, and rather militate against, the case of Defendant No. 1 that he constructed a house on the suit land. Possession of a plot of land for the purpose of thrashing floor and cow-dung pit for some years by Defendant No. 1, who is a relation of the Plaintiff through the above-named Tika, in the absence of the Plaintiff from the village, cannot go to show that he was exercising possession over the said plot with hostile animus against the Plaintiff. As Defendant No. 1 has the burden on him to establish by clear and unequivocal evidence that his possession of the suit land was hostile to the real owner and amounted to a denial of his title, he should have produced convincing evidence to that effect or should at least be able to show from the evidence on record that his possession was hostile to the real owner and he perfected his title by adverse possession. As there is absolutely no evidence on record on which it can be said that his possession of the suit land was of the above nature and character, I find that the finding of the Court below that Defendant No. 1 did not perfect his title by adverse possession cannot be interfered with in this second appeal.

I, therefore, do not find any merit in this second appeal and it is accordingly dismissed. Each party to bear his own costs of this appeal.