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Judgment
Plaintiffs are the appellants against a reversing judgment. The suit was for declaration of title, confirmation of possession or in the alternative for
recovery of possession if the plaintiffs are dispossessed during pendency of the suit, for declaration that the recording of the suit land in the name of
defendant no.1 and transfer the land by the defendant no.1 in favour of defendant no.2 are not binding and for permanent injunction.
The case of the plaintiffs was that the suit land belonged to plaintiff no.1. Patta was issued in his favour. The same was recorded in his name. He
was in peaceful possession of the same. He used to pay rent. He constructed a dwelling house over a portion of the suit plot and resided therein.
Defendant no.1 is his brother. In the hal settlement, the name of defendant no.1 had been recorded. He had no right, title and interest over the suit
land. During hal settlement operation, parcha was issued in the names of the plaintiffs in respect of Ac.0.64 dec. appertaining to sabik plot no.198.
Sabik plot no.198 had been bifurcated into three separate plots, i.e., hal plot nos.834, 1125 and 1126 appertaining to hal khata no.302. The
plaintiff no.1 had encroached upon Ac.0.03 dec. of Government land adjoining to the east of the aforesaid plots. The said area had been included
in hal plot no.834. The rest of sabik plot no.198 now corresponds to hal plot no.834/1125 and the suit plot. Taking a cue from wrong recording of
the suit land, the defendant no.1 alienated the same in favour of defendant no.2 by means of a registered sale deed dated 7.3.88. The sale deed is
illegal and inoperative. When defendant no.2 threatened to dispossess them, the suit was instituted seeking the reliefs mentioned supra.
The defendants filed written statement denying the assertions made in the plaint. The case of the defendants was that plaintiff no.1 and defendant
no.1 are brothers. They were living in joint mess and property. Plaintiff no.1 was working as Choukidar of the village Chinara. Defendant no.1 was
helping him. Plaintiff no.1 filed Choukidari Jagri Case No.504 of 1965-66 to settle Ac.2.78 dec. of land appertaining to khata no.280 in his favour
in accordance with the provisions of the Orissa Offices of Village Police (Abolition) Act, 1964. In the said case, one Daitari Mallik filed objection.
Ac.0.26 dec. of land appertaining to sabik plot no.205 was recorded in the names of plaintiff no.1, defendant no.1 and Daitari Mallik jointly.
Daitari Mallik got Ac.0.10 dec. of land whereas plaintiff no.1 and defendant no.1 got Ac.0.08 dec. each. Sabik plot no.198, area Ac.0.61 dec.
appertaining to khata no.280 was recorded in favour of plaintiff no.1 along with other Ac.2.17 dec. of land. It was further pleaded that to clear up
the outstanding dues, plaintiff no.1 and defendant no.1 sold their homestead land measuring an area Ac.0.16 dec. to Narayan Parida and others in
the year 1967-68 and constructed their residential house over sabik plot no.198. Plaintiff no.1 relinquished his title over sabik plot no.184,
Ac.0.25 dec. and sabik plot no.682, Ac.0.25 dec. in favour of defendant no.1 and executed a deed of relinquishment. He agreed to execute a
registered deed and delivered possession of the land in favour of defendant no.1. Plaintiff no.1 voluntarily relinquished his right, title and interest
and possession over Ac.0.01 dec. of land appertaining to sabik plot no.198 which was adjacent to Ac.0.03 dec. of Government land in favour of
defendant no.1 in the year 1967. The defendant no.1 was in possession of the same along with his father for a period of more than forty years. He
is in possession of Ac.0.04 dec. of land peacefully, continuously and with the hostile animus to the plaintiffs and as such perfected title by way of
adverse possession. The settlement authorities recorded the land in favour of defendant no.1. Since the defendant no.1 was in need of money to
clear up the outstanding dues, he applied for permission under Sec.22 of the Orissa Land Reforms Act, 1960 before the Sub- Divisional Officer,
Nayagarh to sale the land, which was registered as Misc. Case No.803 of 1987. After obtaining permission, on 8.3.1988, he sold the land to the
defendant no.2 by means of a registered sale deed for a valid consideration. It was further pleaded that sabik plot no.198 was originally an area of
Ac.0.61 dec. which was recorded in favour of plaintiff no.1. The defendant no.1 had perfected title over Ac.0.01 dec. of land under plot
no.834/1126 corresponds to sabik plot no.198. The rest Ac.0.60 dec. of land had been recorded in favour of plaintiff no.1 in the hal settlement
operation.
On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence, both oral and documentary, to substantiate
their cases. Learned trial court came to hold that plaintiff no.1 had not relinquished his title over Ac.0.01 dec. of land appertaining to sabik plot
no.198 in favour of defendant no.1. Defendant no.1 failed to prove that he had perfected title over Ac.0.01 dec. of land by way of adverse
possession. Since defendant no.1 had no title over plot no.834/1126, the sale deed executed in favour of defendant no.2 is invalid and not binding.
Held so, it decreed the suit. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Civil
Judge (Sr. Divn.), Nayagarh in T.A. No.2 of 1993. Learned appellate court came to hold that out of Ac.0.04 dec. of land appertaining to hal plot
no.834/1126, Ac.0.03 dec. of land belonged to the Government. The nature of the land is Gochar. Ac.0.01 dec. of land appertaining to hal plot
no.834/1126 is a part of sabik plot no.198. He disbelieved the plea of defendants that dwelling house stands over the suit land. The plaintiffs had
relinquished their right, title and interest in respect of Ac.0.01 dec. of land appertaining to sabik plot no.198 in favour of defendant no.1 whereafter
defendant no.1 amalgamated the same with the Government land having an area of Ac.0.03 dec. appertaining to sabik plot no.198. The suit plot
no.834/1126 is not a part of sabik plot no.198. He disbelieved the plea that the plaintiffs had encroached upon Ac.0.03 dec. of land from the
Government land adjacent to sabik plot no.198. The hal record of right in respect of the suit land stands in the name of defendant no.1. Defendant
no.1 was in possession over the suit land till 1988 and thereafter he alienated the same in favour of defendant no.2. It further held that defendant
no.1 had failed to prove that he had acquired title over Ac.0.01 dec. of land appertaining to sabik plot no.198 by way of adverse possession. It
abruptly came to a conclusion that defendant no.1 had perfected his title over the suit land by way of adverse possession. Held so, it allowed the
appeal. It is apt to refer that during pendency of the second appeal, the plaintiff no.1-appellant no.1 died. The legal heirs had been substituted.
The second appeal was admitted on the substantial questions of law enumerated in ground nos.a, c and d of the memorandum of appeal. The
same are: ""a. Whether the judgment of the appellate court can be sustained in the eye of law as neither the oral nor the documentary evidence
adduced by the plaintiffs have been taken into consideration. c. Whether the appellate court is justified in holding that the defendant no.1 has
perfected his title by way of adverse possession without any pleading and evidence to that effect. d. Whether the appellate court is justified in
holding that the sell by defendant no.1 in favour of defendant no.2 is valid particularly when the said defendant no.1 has no title to the said land
covered under the sale deed.
Mr. Mahadeb Mishra, learned Senior Advocate for the appellants, submitted that there was no deed of relinquishment in favour of defendant
no.1. Defendant no.1 had failed to substantiate the plea of adverse possession. Learned appellate court on untenable and unsupportable grounds
reversed the decree.
Plaintiff no.1 had not executed a deed of relinquishment in favour of defendant no.1. No document had been exhibited in the court below.
Alternatively, defendant no.1 had pleaded that he had perfected title by way of adverse possession. The plea is mutually destructive. Claim of title
to the property and adverse possession are in terms of 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 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.
The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others vs. Mirza Abdul Gaffer and another, (1996) 1 SCC 639
hel d:
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 paragraph 9 of the judgment, learned appellate court came to a finding that the defendant no.1 had failed to prove that he had acquired title
over Ac.0.01 dec. of land appertaining to sabik plot no.198 by way of adverse possession. In the middle of the said paragraph, it abruptly came to
a conclusion that defendant no.1 had perfected title by way of adverse possession. The judgment suffers from internal inconsistencies. The
irresistible conclusion is that defendant no.1 has no title over Ac.0.01 dec. of land appertaining to sabik plot no.198. Plaintiff has title over the
same.
With regard to Ac.0.03 dec. of land, the plaintiffs assert that they had encroached upon the Government land. The nature of the land is
Gochar. No declaratory relief can be granted in respect of the Gochar land. The plaintiffs have no title over the same. The substantial questions of
law are answered accordingly.
In the result, the impugned judgment is set aside. The appeal is allowed in part. The suit is decreed to the extent indicated above. There shall
be no order as to costs.