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Bhikari Charan Sahu Vs. Chhima Basic School and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 340 of 1964
Judge
Reported inAIR1967Ori44
ActsLimitation Act, 1908 - Schedule - Articles 142 and 144; Limitation (Amendment) Act, 1963 - Schedule - Articles 64 and 65; Evidence Act, 1872 - Sections 101 to 104
AppellantBhikari Charan Sahu
RespondentChhima Basic School and ors.
Appellant AdvocateD. Mohanty and ;M.S. Roy, Advs.
Respondent AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
DispositionAppeal dismissed
Cases ReferredGurbinder Singh v. Lal Singh
Excerpt:
.....a well and prevented the teachers and students to use the well as well as the garden in the suit land. 6. in appeal, the learned lower appellate court reversed the decision of the trial court and dismissed the plaintiff's suit mainly on the findings, inter alia, that on the facts and circumstances of the case as discussed in his judgment article 142 of the limitation act was applicable and plaintiff failed to prove possession within 12 years. on the question of interrupted possession by reason of the construction of a well, the learned lower appellate court found to the effect that even assuming that there was such interruption it did not amount to an interruption or break in their continuous possession. it is well settled that in such a case, the plaintiff is not entitled to..........out of a suit for declaration of title, possession and for permanent injunction in respect of the suit land consisting of two plots being plot no. 273 with an area of 0.017 decimals and plot no. 273/954 with an area of 0.006 dec. total area being 0.023 decimals which originally belonged to one gunduchi sahu.2. the plaintiff is a purchaser of the suit land from gunduchi sahu by a registered sale deed ex. 4 dated may 5, 1961. defendant no. 1 is the chhima basic school represented by defendant no. 2 jaykrishna mohanty, secretary; defendant no. 3 is the organiser, basic education, orissa at village angul and defdt. no. 4 padma gharan sahu is the son of plaintiff's vendor gunduchi, who in fact, is a pro forma defendant against whom no relief is asked for in the plaint.3. the plaintiff's case.....
Judgment:

S. Barman, J.

1. This appeal filed by the plaintiff arises out of a suit for declaration of title, possession and for permanent injunction in respect of the suit land consisting of two plots being plot No. 273 with an area of 0.017 decimals and plot No. 273/954 with an area of 0.006 dec. total area being 0.023 decimals which originally belonged to one Gunduchi Sahu.

2. The plaintiff is a purchaser of the suit land from Gunduchi Sahu by a registered sale deed Ex. 4 dated May 5, 1961. Defendant No. 1 is the Chhima Basic School represented by defendant No. 2 Jaykrishna Mohanty, Secretary; defendant No. 3 is the organiser, Basic Education, Orissa at village Angul and defdt. No. 4 Padma Gharan Sahu is the son of plaintiff's vendor Gunduchi, who in fact, is a pro forma defendant against whom no relief is asked for in the plaint.

3. The plaintiff's case is this. As aforesaid on May 5, 1961, he purchased the suit land from Gunduchi. The plaintiff was obstructed by defdts. 1 and 2 in getting possession on the plea that defdts. 1 and 2 as the Basic School represented by its Secretary got the suit land under a deed of gift dated July 27, 1954 from Gunduchi's son defendant No. 4, The suit was filed by the plaintiff on October 6, 1961.

4. The defence to the suit is that the suit land belonged to one L. P. School which was subsequently converted into Basic School; it is in continuous possession of the suit land: as there was some dispute, defendants 1 and 2 took a gift from Gunduchi's son defendant No. 4 after it was allotted to defdt. No. 4 in a partition between Gunduchi and his son defdt. No. 4. In substance the defence case is that the L. P. School which subsequently became a Basic School is in continuous possession since about 1917.

5. The trial court decreed the suit in favour of the plaintiff. The material findings of the trial Court are these: The story of partition between Gunduchi and his son defendant No. 4 is not proved; there was no allotment of the suit land to defdt. No. 4 as alleged; Gunduchi & his son defendant No. 4 were joint; the suit land was a self-acquired property of Gunduchi. The trial court also found that the plaintiff has both title and possession, that the defendants have not proved adverse possession, that the defendants' possession had been interrupted in the year 1953-54 when Gunduchi is said to have constructed a well and prevented the teachers and students to use the well as well as the garden in the suit land.

6. In appeal, the learned lower appellate Court reversed the decision of the trial Court and dismissed the plaintiff's suit mainly on the findings, inter alia, that on the facts and circumstances of the case as discussed in his judgment Article 142 of the Limitation Act was applicable and plaintiff failed to prove possession within 12 years. He also found to the effect that assuming that Article 144 of the Limitation Act applied, defendants had succeeded in proving adverse possession for more than 12 years. In so finding the learned lower appellate Court came to the conclusion that the defdts. were entitled to tack possession of the L. P. School with that of the Basic School into which it is said to have been converted. On the question of interrupted possession by reason of the construction of a well, the learned lower appellate court found to the effect that even assuming that there was such interruption it did not amount to an interruption or break in their continuous possession. It is against the decision of the learned lower appellate Court dismissing the plaintiff's suit, that the plaintiff has come up in this second appeal.

7. The only point urged in this appeal is the question of limitation; whether on the facts and circumstances of the case, Article 142 or Article 144 of the Limitation Act will be applicable. The learned lower appellate Court came to the conclusion that in either view whether Article 142 or Article 144 was applicable, the suit was barred by limitation.

8. It is an undisputed position in law that in order that Article 142 is attracted, the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or some one through whom the defendants claim or alternatively the plaintiff should have discontinued possession. In a suit where the plaintiffs are in possession based on title to the suit land the mischief of Article 142 is attracted if a person having title to the suit land steps in on the allegation that the defdts have no title then it follows that he must have either been dispossessed or might have discontinued the possession of the property prior to the suit. The earlier view that Article 142 would apply to the facts of the case on the allegation made in the plaint has been negatived. The accurate application of the article must necessarily depend on the admitted or proved facts. It is well settled that in such a case, the plaintiff is not entitled to succeed unless he shows in addition to title that he had been in possession of the property within 12 years of the suit. The burden lies upon the plaintiff to prove that he was in possession within 12 years of the suit; the onus is not upon the defendant to prove adverse possession for a period of 12 years.

9. In the present case, the learned lower appellate court found that the plaintiff having based his plaint on title it was for the plaintiff to prove his possession or his vendor's possession over the suit land within 12 years as required under Article 142 of the Limitation Act. After careful consideration of the evidence he was not satisfied that the plaintiff's or his vendor's possession over the suit land within 12 years had been established; in fact, he come to the conclusion that evidence adduced in support of the plaintiff's vendor's possession was not only unsatisfactory but wholly worthless.

10. The next question is assuming that Article 144 is applicable to this case even so, whether the defdts. have been able to prove adverse possession for 12 years. In support of the defendants' claim of adverse possession, they relied on the pleading in paragraph 10 of the written statement, the relevant portion of which is this:

'...... All the records together will go to show that this School is the same school without any change standing in the suit plot with its quarters since a long time and the plaintiff with support from defendant No. 4's father and defendant No. 4 himself is trying to create mischief in such a public noble institution.'

The defendants' case in substance is that there was originally one L.P. School since 1917; in 1950 it was converted into a Basic School; they have been in possession throughout; the original possession of the L.P. School was tacked to the possession of the Basic School into which it was converted. The learned lower appellate Court found that the L. P. School was converted into the Basic School and in support of his finding he referred to the admission of P. W. 1 that there was one L, P. School on the suit land prior to the Basic School. Accordingly on this basis he found that the L. P. School was converted into Basic School.

11. The question is; Is such tacking of possession permissible under the Law? It was contended on behalf of the plaintiff that the L. P. School and the Basic School are independent institutions and therefore their possession cannot be tacked. In support of his contention, the learned counsel for the plaintiff relied on a recent decision of the Supreme Court in Gurbinder Singh v. Lal Singh, AIR 1965 SC 1553 at page 1557 (para 10) wherein it was held that:

'Where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession.'

12. The point here is: Can it be said that the L. P. School and the Basic School are independent trespassers? The defence stand is that it is one and the same school as stated in paragraph 10 of the written statement. The rinding of the learned lower appellate Court is also to the same effect, that the original L. P. School has been converted into Basic School. Thus the identity of the two institutions as one school had been fixed; or retained its own character as the School Lower Primary or Basic. In view of the conversion of the former into the latter, it cannot be said that they are independent trespassers in relation to the suit land.

13. Then the question arises; Did the construction of the well in 1953-54 and the prevention of the teachers and the students from using the well amount to such interruption of possession as to constitute a break in their possession? It is well settled law that mere interference with their possession by the rightful owner would not be sufficient to show that they have been dispossessed unless such interference results in their being definitely ousted from any portion of the land. There is also authority for the proposition that even if they have been dispossessed from a certain portion of the land by another trespasser and ultimately recovered possession, such dispossession would not be deemed to constitute a break in their possession.

14. It 'was argued on behalf of the plaintiff appellant that to constitute adverse possession in law, the facts herein do not satisfy all the ingredients. In the present case, however, the learned lower appellate Court found on his appreciation of the evidence as discussed in paragraph 10 of his Judgment that defendants had perfected their title to the suit land by adverse possession. It is not that the defendant School was in concealed possession of the suit land, but in fact, it was in open possession for over a period of 12 years. As regards the extent of possession, the evidence is that the school covered the entire suit land.

15. That apart, the deed of gift Ext. A dated July 27, 1954 in favour of the defendant school by Gunduchi's son, defendant No. 4 further supports the defendant's case of adverse possession. It is thus: The gift was by the son who had no right to the suit property. The suit property was found as self-acquisition of Gunduchi. Therefore, even viewed from that aspect, the defendants school's possession by virtue or an invalid gift is also adverse.

16. Thus in the ultimate analysis, in either view whether Article 142 or 144 is applicable to this case, the suit is barred by limitation.

17. The defendant has filed a petition for additional evidence which is not pressed.

18. The plaintiff also filed a petition for amendment of the plaint to allow the plaintiff to implead the Chairman of Zilla Parishad as party respondent and to allow necessary amendment in the cause title of the memorandum of appeal as prayed for in the petition. This petition was filed on April 25, 1966 after this second appeal was part-heard on the previous day on April 24, 1966. This belated application at this stage stands dismissed.

19. In the result, therefore, the decision of the learned lower appellate Court is upheld. This second appeal is dismissed with costs.

20. After the judgment was delivered. Mr. D. Mohanty learned counsel appearing for the appellant prayed for leave to appeal Leave prayed for is refused.


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