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Balunki Behera Vs. Smt. Rukuni Beherani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 375 of 1974
Judge
Reported inAIR1978Ori142; 45(1978)CLT616
ActsLimitation Act, 1963 - Sections 27
AppellantBalunki Behera
RespondentSmt. Rukuni Beherani and ors.
Appellant AdvocateB.H. Mohanty and ;P.K. Sahu, Advs.
Respondent AdvocateY.S.N. Murty, Adv.
DispositionAppeal dismissed
Cases Referred(Kulwantrai Goel v. John Christian
Excerpt:
.....of india v smt gita banik, 1996 (2) glt 246, are not good law]. - hence the said observation is tarnished by patent errors of record and is manifestly incorrect, and the ending of that court in para 10 confirming the finding of the trial court on this aspect is perfectly correct. at the best, on the concurrent findings of fact and the plaintiff's admission in paragraph 4 of the plaint that defendant no. i am satisfied that there is no reason to interfere in any way with the said findings of fact in this second appeal. 9. on hearing the counsel for both the parties, i am satisfied that there is no merit in this second appeal and it is, accordingly, dismissed with costs......appeal against the confirming decision of the court below declaring the plaintiff's title to the suit house and directing the defendant no. 1 to vacate possession of the suit house or to be evicted therefrom through court.2. the suit house admittedly belonged to ramakrishna behera, the father of the plaintiff and the paternal grandfather of defendant no. 1, ramakrishna had three eons, balabhadra, kalia (father of defendant no. 1) and laxman. kalia and lax-man executed a registered sale deed (ext. 1) on 10-12-46 in favour of the plaintiff for rs. 300/-, as defendant no, a, the appellant herein, was then a minor, the document was executed on his behalf by kalia as the father-guardian of the minor. kalia died within a short time after the execution of the sale deed.3. the plaintiff's.....
Judgment:

S. Acharya, J.

1. Defendant No. 1, the main contestant of the plaintiff's case, has preferred this appeal against the confirming decision of the court below declaring the plaintiff's title to the suit house and directing the defendant No. 1 to vacate possession of the suit house or to be evicted therefrom through court.

2. The suit house admittedly belonged to Ramakrishna Behera, the father of the plaintiff and the paternal grandfather of defendant No. 1, Ramakrishna had three eons, Balabhadra, Kalia (father of defendant No. 1) and Laxman. Kalia and Lax-man executed a registered sale deed (Ext. 1) on 10-12-46 in favour of the plaintiff for Rs. 300/-, As defendant no, a, the appellant herein, was then a minor, the document was executed on his behalf by Kalia as the father-guardian of the minor. Kalia died within a short time after the execution of the sale deed.

3. The plaintiff's case, in short, is that Balabhadra died issueless prior to the year 1946. Thereafter Kalia and Laxman sold the suit house described in Schedule A of the plaint to the plaintiff for Rs. 300/- as per the registered sale deed Ext. 1 dated 10-12-1946, and put the plaintiff in possession of the suit house. After the execution of the sale deed Kalia stayed in another house constructed by him. On the request of the relations, the plaintiff permitted Laxman to remain in the suit house for some time as the plaintiff then was living with her husband at Kharagpur where he was employed then. Laxman died in 1969 and thereafter his widow Kamala went away to her father's house. However, the plaintiff permitted defendant No. 1, the son of Laxman, to remain in the house. After the death of the plaintiff's husband she came back to her said house and got the suit house mutated in her name in the municipal records in 1968. Subsequently, during the Survey and Settlement operations, defendant No. 1 set up claim for the suit house, and in 1969 the Settlement authorities, in spite of the plaintiff's objection, directed joint recording of the name of the plaintiff and defendant No. 1 in respect of the said house. The plaintiff has prayed for recovery of possession of the suit house from defendant No. 1 and foe other ancillary reliefs.

4. The case of defendant No. 1 in the written statement, in short, is that --

The sale deed Ext. 1 is a sham and nominal document; no consideration passed under that deed and there was no legal necessity for the execution of the said deed; Balabhadra died in the year 1950 after the execution of the sale deed; the sale is void as Balabhadra had not joined in the said sale; the possession of the suit house had never been delivered to the plaintiff; the sons of Ramakrishna were all along in possession of the suit house till their death; after their death the defendants are residing in the said house in their own right; and that the plaintiff's case of permissive possession of the suit house is false.

Defendants 3 and 4 who were later on added as defendants in the suit simply adopted the written statement filed by defendant No. 1.

5. The trial court held that the sale deed Ext. 1 was not a sham and nominal document; it was executed for consideration and legal necessity and it had been acted upon by delivery of possession? Laxman and defendant no, 1 were in permissive occupation of the suit house and they had not acquired any title to the same by adverse possession, Balabhadra died issueless before 1946 and thereafter Kalia and Laxman sold the suit house to the plaintiff on 10-12-46; and that the plaintiff lived in the suit house till she was forcibly driven out of the same by defendant No. 1 in the year 1971. On the above findings the plaintiff's prayer for recovery of possession of the suit house from the defendants was allowed and the suit was decreed.

6. The appellate Judge in para 10 of his judgment specifically states that he agrees' with all findings of the trial court which are unassailable' and on the said findings and conclusions, he has confirmed the decision of the trial Court.

7. It was contended by Mr. Mohanty, the learned counsel for the appellant, that in view of the admitted fact that Laxman continued in possession of the suit house even after the execution of the sale deed, Ext, 1, dated 10-12-46, and after his death his son defendant No. 1 with his wife continued in possession of the said house and is still in possession of the same, the suit instituted in the year 1969 is not maintainable because of the provisions of Sections 27 and 31 of the Limitation Act, 1963 and Article 142 of the old Limitation Act, There is absolutely no merit in the above contention. Article 142 of the old Limitation Act does not apply to the facts of this case as the premises on which the application of the said Article is dependant are absent in the present case. The trial court on proper and convincing discussion and consideration of the evidence on record arrived at the finding of fact that defendant No. 1 and his parents were all through in permissive possession of the suit house after the execution of the sale deed in December, 1946 followed immediately by delivery of possession of the said house by the vendors in favour of the plaintiff. The said finding has been confirmed by the appellate court in para 10 of its judgment.

In para 8 of its judgment, however, at one place it says that there is no evidence to support the plaintiff's assertion of permissive occupation of the said house by Laxman or Balunki. The trial court's finding on this aspect is founded on the relevant evidence appearing on record. On a perusal of the evidence on record and the finding of the trial court on this aspect, I am convinced that the above-mentioned observation of the appellate court was made inadvertently without adverting to the evidence on record. Hence the said observation is tarnished by patent errors of record and is manifestly incorrect, and the Ending of that court in para 10 confirming the finding of the trial court on this aspect is perfectly correct.

Both the courts, on independent assessment of the evidence on record and the law on the point, have held that defendant No. 1 has not acquired any title to the suit house by adverse possession. I do not find any reason to interfere with the aforesaid findings of fact. On the aforesaid findings it cannot be said that the plaintiff had been dispossessed from the suit house, or that she had discontinued from the possession of the said house, A suit for possession of immoveable property is barred after 12 years from the date of the dispossession or discontinuance from possession as per Sections 27 and 31 of the new Limitation Act and Article 142 of the old Limitation Act, As possession of the suit house by defendant No. 1 and/or his parents after the execution of the sale deed and delivery of possession of the suit house to the plaintiff was all through permissive, the plaintiff had never been dispossessed from nor had she discontinued the possession of the suit house.

The legal conception of 'possession' may be in various forms. 'Possession' is a flexible term and is not restricted to mere actual occupation of the property. In this connection it is worthwhile to quote the observations made in para 7 of the decision reported in AIR 1951 Ori 183 (2) (Rangulal Ram v. Makhan Lal):

'Mere acts of user which do not interfere and are consistent with the owner'stitle are not sufficient to constitute dispossession of the owner or start adversepossession in favour of the occupant. xx

xx xx xxWhether, in particular circumstances, theacts of the occupant amount to possessionand whether such possession is on behalfof the legal owner or in opposition to histitle are matters of inference to bedrawn from proved facts, xx xx

xx xx xxThe expression 'dispossession' has nowhere been defined but there can be no doubt about its meaning. Dispossession involves some element of farce or fraud end implies the coming in of a person and his driving out another person from his possession. There can, therefore, be no dispossession unless there is a termination of the possession of the rightful owner, followed by actual possession of another,'

In para 8 of the said decision it has been observed a

'There can be no 'discontinuance' within the meaning of the statute merely because of absence of physical possession

xx xx xxA mere repudiation of the plaintiff's title behind his back is not enongh to dispossess him unless St is followed by some overt act,'

In that paragraph it has also been held that the payment of house tax is not such en unequivocal act as would constitute an assertion of hostile intention so as to amount to adverse possession. It has been further held that 'without a voluntary abandonment of possession there can be no such discontinuance. Merely remaining quiescent cannot amount to discontinuance',

In the case reported in (1972) I Cut WR 102 (Kulwantrai Goel v. John Christian it has been held that until the defendant establishes loss of plaintiff's title on account of the defendant being in adverse possession for more than the statutory period, the plaintiff is entitled to succeed on the basis of his antecedent title,

On the facts found in this case by the two courts of fact, it can never be said that the plaintiff was ever dispossessed from the suit house or that she discontinued from possession of the house within the meaning of Article 142 of the old Limitation Act. At the best, on the concurrent findings of fact and the plaintiff's admission in paragraph 4 of the plaint that defendant No. 1 started setting up his own title to the suit house during the last Town Survey Settlement operations due to which by the order dated 26-2-69 of the Assistant Settlement Officer the house was recorded jointly in the name of the plaintiff and defendant No. 1, it can be said that only from 1968-69 defendant No. 1 started to openly repudiate the plaintiff's title to the suit property and asserted his title to that house by the said overt acts. Thus dispossession or discontinuance from possession, if at all, started only from that time. There is nothing on record to prove that 'dispossession' or 'discontinuance' from possession, as understood in the legal parlance, started or occurred earlier than that time, That being so, Article 142 of the old Limitation Act will not apply to this case, The residuary Art, 144 of the old Limitation Act is also not applicable to this case, as to bring a case under that Article defendant No. 1 has to prove that he was in adverse possession of the suit house for more than 12 years. As stated above, both the courts below have arrived at the unassailed finding of fact that defendant No. 1 and/ or his parents had not perfected their title to the suit house by adverse possession. It is also to be noted that in the written statement filed by defendant No. 1 and adopted by the other defendants there is no assertion of dispossession of the plaintiff from the suit house.

On the above considerations, I hold that the above-mentioned contention put forward by Mr. Mohanty is devoid of any substance.

8. The findings of fact that Balabhadra died issueless before the execution of the sale deed, Ext. 1; that sale deed in favour of the plaintiff was a genuine and valid document; that it was executed for consideration, and for legal necessity? that it had been acted upon by delivery of possession; that Laxman did not and the defendants have not acquired any title to the suit house by adverse possession; and that Laxman and/or defendant No. 1 were in permissive possession of the suit house are squarely based on convincing discussions and considerations of the evidence on record, and the said findings of fact could not be assailed on any acceptable ground. I am satisfied that there is no reason to interfere in any way with the said findings of fact in this second appeal.

9. On hearing the counsel for both the parties, I am satisfied that there is no merit in this second appeal and it is, accordingly, dismissed with costs.


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