Nrusingha Das alias Nrusingha Charan vs Gopinath Das and others

Dr. A.K.Rath, J.

Defendant no.3 is the appellant against a confirming judgment.

Giridhari Das, Marfatdar of deity Sri Sri Raghunath Jew Thakur, predecessor-in-interest of respondent nos.1 and 2 as plaintiff, instituted the suit for

declaration of title, confirmation of possession, recovery of possession and certain ancillary reliefs. The case of the plaintiff was that there was a

partition of C.S. Plot No. 1353 between the co-sharers in O.S. No. 169/58-I. The southern portion of the suit land was kept joint. The same is used as

common path. The defendants have no semblance of title and possession over the disputed land. They encroached upon the disputed land. With this

factual scenario, they instituted the suit seeking the reliefs mentioned supra.

Defendant no.3 entered contest and filed a written statement. According to him, the suit plot is a part of C.S. Plot No. 1355. The said plot belongs

to him. He is in possession of the suit plot openly, peacefully and with hostile animus to the knowledge of the plaintiff for more than the statutory

period and as such, perfected title by way of adverse possession. It was further pleaded that over the northern boundary of C.S. Plot No. 1355, there

is an old green fence. The trees were enjoyed by him since long. Except defendant no.3, rest of the defendants were set ex parte.

On the inter se pleadings of the parties, learned trial court struck six issues. Parties led evidence, both oral and documentary, to substantiate their

case. During pendency of the suit, amin Commissioner was deputed for measurement of the land. He submitted a report. The report of the

Commissioner as well as the sketch map had been marked as Exts.1/a and 1/b respectively. The Commissioner was also examined as C.W.1. On a

threadbare analysis of evidence on record as well as pleadings, learned trial court came to hold that the suit land is within C.S. Plot No. 1353. Held so,

it decreed the suit. The unsuccessful defendant no.3 filed T.A. No.14/267 of 1987 before the learned Additional District Judge, Bhadrak, which was

eventually dismissed. Â

The appeal was admitted on the following substantial questions of law:-

“1. Whether the lower appellate court erred in confirming the finding of the trial court that the defendant no.3-appellant had failed to establish his

plea of acquisition of title by adverse possession over the suit land ?

Without discussing the evidence on record and without recording any finding whether the appreciation of evidence by trial court was proper and

acceptable or not ?â€​ Â

Mr. Alok Kumar Mohanty, learned counsel for the appellant submits that the defendants filed an objection to the report of the amin Commissioner.

The courts below are not justified in placing reliance on the report of the Commissioner. He further submits that the defendant no.3 has taken a plea

that he perfected title by way of adverse possession. Learned courts below did not delve deep into the matter and negatived the plea of adverse

possession. Â

Mr. S.P. Mohanty, learned counsel for the respondent nos.1 and 2 submits that the Commissioner submitted a report. He was examined as C.W.1.

The courts below, on an analysis of evidence on record as well as pleadings, came to hold that the suit schedule land was a part of C.S. Plot No.1353.

This is a finding of fact. Â

During trial, an amin Commissioner was deputed. He visited the spot and submitted the report as well as sketch map vide Exts.1/a and 1/b. Â The

Commissioner was also examined as C.W.1.Learned trial court not only considered the evidence of the Commissioner and his report, but also scanned

the evidence on record and pleadings and came to hold that the suit plot is a part of C.S. Plot No. 1353. The finding of the fact has been affirmed by

the learned appellate court. There is no perversity or illegality in the findings of the courts below. 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.