True Court CopyTM


S.A. No. 109 of 1991

Decided On: 01.02.2018

Appellants: Asha Dei Vs. Respondent: Naran Sethi and Ors.

Hon'ble Judges/Coram:
Dr. Akshaya Kumar Rath


Dr. Akshaya Kumar Rath, J.

1. Defendant No. 2 is the appellant against a confirming judgment.

2. Plaintiff-respondent No. 3 instituted the suit for declaration of title, recovery of possession and permanent injunction. The case of the plaintiff was that his mother, defendant No. 4 purchased the suit land. She constructed a thatched house over the same. Her name was recorded in the Municipal record. She executed a gift deed in his favour on 9.1.1980 and delivered possession. Defendants 1 to 3, who are brother-in-law, sister and nephew of the plaintiff, stayed in a portion of the suit house. As defendant No. 1 claimed title over the same before the Settlement Authority, he asked them to vacate the suit house. With this factual scenario, he instituted the suit.

3. The defendants 1 to 3 filed written statement denying the assertions made in the plaint. Their case was that after death of husband of defendant No. 4, she sought the help of defendant No. 1. Defendant No. 1 purchased 100 dec. of suit land from Kartika Sethi, the brother of defendant No. 4 by means of a registered sale deed dated 1.3.1961. As defendant No. 1 was a member of the joint family, to avoid any future claim over the said land by his brothers, he purchased the same in the name of defendant No. 4. Rest of the suit lands had been purchased by defendant No. 1 from one Nilakantha Rath in the name of defendant No. 4 (mother-in-law of defendant No. 1). Their further case was that the plaintiff gained over defendant No. 4 and obtained the gift deed in respect of the suit land. They were in possession over the suit land for more than 12 years and, as such, perfected title by way of adverse possession. They had constructed a house and planted different trees over the suit land. The plaintiff was occupying a portion of the suit land with the permission of defendant No. 1. It is apt to state here that during pendency of this appeal, respondent No. 3 died, whereafter his legal heirs have been substituted.

4. On the inter se pleadings of the parties, the learned trial court framed six issues. The parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that the plaintiff had successfully established his right and title over the suit land. Defendant No. 1 had failed to prove that the suit land was purchased benami in the name of defendant No. 4. Suit was not barred by time. Defendant No. 1 had failed to establish his title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful defendants 1 to 3 filed appeal before the learned District Judge, Puri, which was eventually dismissed.

5. The Second Appeal was admitted on the substantial questions of law enumerated in ground Nos. 1 to 4 of the appeal memo. The same are:-

"1) For that in view of the evidence of the D.Ws. coupled with the documentary evidence such as Ext. E series (Voter list), Ext. D (electric card) Ext. G series (the rent receipts), whether the learned Courts below committed serious illegality in holding that the defendant No. 1 has failed to prove his title by way of adverse possession.

2) For that plaintiff (P.W. 4) having admitted in his evidence the possession of defendant No. 1 over the suit land the learned Courts below should have held that the defendant No. 1 has proved adverse possession over the suit land.

3) For that the defendant Nos. 1 to 3 having categorically pleaded adverse possession in their written statement whether the learned trial court was justified in not framing an issue in that regard and the learned lower appellate court whether went wrong in not remanding the matter to the lower Court for framing an issue.

4) For that the defendant No. 1 having remained in possession admittedly since the date of execution of Ext. C. Dt. 1.3.61, whether the learned courts below failed to notice that defendant No. 1 had already perfected his title by way of adverse possession before the Benami Transactions (Prohibition) Act 1988 came into force."

6. Heard Mr. Buddhiram Dash, learned Advocate on behalf of Mr. N.C. Pati, learned Advocate for the appellant. None appeared for the respondent.

7. Mr. Dash, learned Advocate for the appellant submitted that defendant No. 1 had paid the entire consideration amount for purchase of the suit land. Defendant No. 1 is the owner of the suit house. He further submitted that defendant Nos. 1 to 3 reside over a portion of the suit house peacefully, continuously and with the hostile animus to the plaintiff for more than statutory period and, as such, have perfected title by way of adverse possession.

8. Adverse possession is not a pure question of law but a blended one of fact and law. In Karnataka Board of Wakf vs. Govt. of India and others, MANU/SC/0377/2004 : (2004) 10 SCC 779, the apex Court observed as under:-

"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

(emphasis laid)

9. On a threadbare analysis of the evidence on record and pleadings, the learned trial court disbelieved the plea of defendants that defendant No. 1 had paid the consideration amount. Defendant No. 1 failed to substantiate his plea of benami. Defendant No. 4 is the owner of the suit land. The suit land had been gifted by defendant No. 4 to the plaintiff. Possession of the same was delivered to him. The suit land had been recorded in the name of the plaintiff in Settlement R.O.R.. Thus the plaintiff has title over the suit land.

10. Mere possession of the suit land for long time is not sufficient to hold that 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. There is no pleading as to when the defendants entered into the suit house. Both the courts below concurrently held that possession of defendants 1 to 3 over the suit land is permissive. There is no perversity in the findings.

11. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others Vrs. Mirza Abdul Gaffer and another, MANU/SC/1039/1996 : (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."

In Annasaheb Bapusaheb Patil and others Vrs. Balwant alias Balasaheb Babusaheb Patil (dead) By Lrs. and heirs and others, MANU/SC/0172/1995 : (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 said 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."

12. The matter may be examined from another angle. The defendants pleaded that defendant No. 1 had purchased the suit property in the name of defendant No. 4. It was benami transaction. Alternatively, defendants 1 to 3 pleaded that they have perfected title by way of adverse of possession. The plea is mutually destructive. Claim of title to the property and adverse possession are in terms contradictory. The substantial questions of law are answered accordingly.

13. In the wake of aforesaid, the appeal, being devoid of merit, is dismissed. There shall be no order as to costs.

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