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Basanti Dei Vs. Bijayakrushna Patnaik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 362 of 1973
Judge
Reported inAIR1976Ori218
ActsLimitation Act, 1963 - Schedule - Articles 64 and 65
AppellantBasanti Dei
RespondentBijayakrushna Patnaik and ors.
Advocates:R.C. Patnaik and ;P.K. Misra, Advs.
DispositionAppeal dismissed
Cases Referred(Bhabagrahi Misra v. Mangovinda Moharana
Excerpt:
.....could be no better than that of licensees. it is well settled that when possession commences in a permissive character it does not become adverse unless by some positive overt act it is indicated that such possession became adverse either in the hands of the successor or even in the hands of the original permissive occupant......contentions:(i) that the courts below were not justified in rejecting the defence plea that the suit land had been purchased by trailokya biswal; and(ii) that in view of the evidence on record that trailokya biswal, the licensee died about 30 years prior to the suit and that the defendant no. 1 continued to possess the suit land, the courts below should have held that her possession became adverse to the true owners of the property since the date of death of the licensee.6. regarding the first contention, it is argued that exts. b, b-1 and c have not been properly considered by the courts below. exts. b and b/1 are the receipts dated 20-3-1931 and 28-1-1936 granted to trailokya biswal for payment of conservancy tax. ext. c is a letter of the tax collector intimating trailokya biswal.....
Judgment:

P.K. Mohanti, J.

1. This appeal by defendant No. 1 is against the confirming judgment of the learned Addl. District Judge, Dhenkanal passed in a suit for declaration of title to and recovery of possession of 0.55 acre of land appertaining to plot No, 3000 situated within the town area of Dhenkanal.

2. Plots Nos. 2999 and 3000 are adjacent to each other. In the current settlement record-of-rights finally published in December, 1965 plot No. 2999 was recorded in the name of defendant No. 1 and plot No. 3000 in the name of the plaintiffs, vide Exts. D and 2. The plaintiffs' case was that their ancestors had allowed the father of defendant No. 1 to possess a portion of the homestead plot No. 2999 and after his death the defendants have been residing there. During the current settlement operations there was dispute between the parties with regard to plot No. 2999 but it was ultimately recorded in the name of defendant No. 1. When the plaintiffs were contemplating to file a suit against the defendant No. 1 in respect of that plot the defendants forcibly possessed the disputed plot No. 3000 in January, 1966. So the plaintiffs filed the suit for the aforesaid reliefs treating the defendants as trespassers.

3. The defence case was that Trailokya Biswal, the father of defendant No. 1 possessed both the plots Nos. 2999 and 3000 with the permission of late Lambodar Patnaik, one of the ancestors of the plaintiffs. Subsequently, he purchased both the plots from the said Lambodar Patnaik for a sum of Rs. 80/-by an unstamped and unregistered sale deed which was lost about 40 years back when the house of the defendants was burnt by fire accident. Trailokya Biswal died about 30 years prior to the suit and after his death defendant No. 1 has been in possession of the disputed land along with plot No. 2999 as before. Their alternative case was that defendant No. 1 had perfected her title by adverse possession being in continuous possession of the land for over 12 years.

4. Both the Courts below disbelieved the story of purchase of the disputed land by Trailokya Biswal. As regards the plea of adverse possession both the Courts concurrently held that possession at the inception being permissive it could not be converted into adverse possession as there was no proof that the defendant No. 1 asserted an adverse title to the property to the knowledge of the true owners at any time. Upon these findings the plaintiff's suit was decreed for the reliefs claimed.

5. Mr. R. C. Patnaik, the learned counsel appearing on behalf of the appellant raised the following contentions:

(i) That the Courts below were not justified in rejecting the defence plea that the suit land had been purchased by Trailokya Biswal; and

(ii) that in view of the evidence on record that Trailokya Biswal, the licensee died about 30 years prior to the suit and that the defendant No. 1 continued to possess the suit land, the Courts below should have held that her possession became adverse to the true owners of the property since the date of death of the licensee.

6. Regarding the first contention, it is argued that Exts. B, B-1 and C have not been properly considered by the Courts below. Exts. B and B/1 are the receipts dated 20-3-1931 and 28-1-1936 granted to Trailokya Biswal for payment of conservancy tax. Ext. C is a letter of the Tax Collector intimating Trailokya Biswal that he had been exempted from payment of conservancy tax with effect from 1st April, 1941 under orders of the then Chief Minister of the Durbar Administration. There is no evidence on record to connect these documents with the suit land. D. W. 4 Gourahari Biswal proved the handwritings and signatures appearing on these documents and said that he had no personal knowledge about their contents. Even assuming that the documents relate to the suit lands, they cannot be regarded as evidence of purchase. Even an occupier of the holding can pay conservancy tax. Save and except the sole uncorroborated testimony of the defendant No. I there is no other oral evidence to prove the story of purchase. She said that she came to know about the purchase when she was 12 years old and that she had not seen the document of sale. The Courts below disbelieved the evidence of defendant No. 1 on cogent grounds and I see no compelling reason to come to a different finding. This contention is, therefore, without any merit.

7. As regards the second contention, it is argued that from the date of death of Trailokya Biswal, the possession of defendant No. 1 became adverse to theowner of the land and that she being in continuous possession for about 30 years prior to the suit she acquired title to the same by adverse possession. For this proposition reliance is placed on a decision reported in AIR 1931 Mad 216, (Chinnan v. Ranjithammal). In the facts and circumstances of the present case it is not possible to hold that possession of defendant No. became adverse to the plaintiffs since the death of Trailokya Biswal. There was absolutely no allegation in the written statement that on the date of death of Trailokya Biswal possession of defendant No. 1 became adverse to the true owner. There was also no averment that the original licence did not survive after the death of Trailokya Biswal. Since defendant No. 1 was living with her father, the implied intention must have been to allow her to continue to possess the land as licensee. In paragraph 7 of the written statement she stated as follows:--

'That the father of the defendant No. 1 died at the age of about 80 years, thirty years back and the defendant No. 1 has been in possession of the disputed land along with plot No. 2999 of current settlement after the death of her father as before. None of the plaintiffs, not even anybody on their behalf, have ever questioned the possession of the father of defendant No. 1 and after his death, the possession of defendant No. 1 over plot No. 2999 and the suit land appertaining to plot No. 3000 of current settlement'

This shows that defendant No. 1's possession even after the death of her father was permissive. If her possession was permissive she cannot claim title to the land on the ground of possession however long, unless she shows that her possession was adverse to the plaintiffs (owners) to their knowledge and with their acquiescence.

8. Even assuming that the licence terminated on the date of death of Trailokya, defendant No. 1's possession thereafter became unlawful. But mere unlawful possession does not mean adverse possession. A trespasser's possession is adverse to the true owner only when the adverseness of the trespasser's claim is within the owner's knowledge. There must be on the part of the trespasser an express or implied denial of title of the true owner and an animus of exclusive ownership. In the present case even if it is held that the possession of the land by the defendant No. 1 after her father's death was unlawful it cannot be regardedas adverse to the plaintiffs. It was during the settlement operations of 1965 that the defendant No. 1 for the first time denied the plaintiffs' title when she raised a dispute before the settlement authorities. Therefore, the contention that her adverse possession commenced after the death of her father cannot be accepted. I am supported in this view by the case of Nand Gopal v. Brij Mohan Lal, ILR (1966) 2 All 74 wherein it was held:

'...... ...If the licensee and othermembers of his family reside in the house without any objection from the licensor who knew full well who the persons living in the house were it can very well be inferred that the licence was that the original licensee (in the present case Lala Kabbomal) and all the members of his family should live in the house. In that manner the possession of the sons and other members of the licensee's family being permissive in nature, their position could be no better than that of licensees. Although the express licence was in the name of one person only the implied licence must be deamed to be in favour of other members of the family also ... ... ... ...'

In AIR 1959 Madh Pra 23, (Beni Madavprasad v. Rasklal Ambalal) the Court held:

'... ...... ...Even if it is held that thelicence granted to Chunnilal terminated with his death and that, therefore, the defendants were not entitled to remain in possession of the house, the fact that after Chunilal's death the plaintiff acquiesced in the defendant's possession of the house and the defendants remained in possession of it acknowledging the plaintiff's title to the property as is obvious by entries in the Cantonment Register and the payment of municipal rates and taxes in respect of the house by the plaintiff, amply shows that the defendant's possession even after the death of Chunilal was permissive.'

In AIR 1950 Nag 127, (Mohammad Dawood Khan v. Mt Banubi) the plaintiff-licenser had sued the heir of the deceased licensee for possession of some land. Hidayatullah, J. (as he then was) held as follows:--

'possession will always be referred to a lawful title, and unless it can be shown there was such assertion which the party prescribed against could have known there would be no adverse possession particularly where the initial possession begins in a license. In such a case, it mustbe shown that the possession was adverse to that of the licenser, to his knowledge and with his acquiescence.'

In AIR 1971 Ori 195, (Bhabagrahi Misra v. Mangovinda Moharana) this Court held:--

'There is material on record that the permissive occupation was in respect of the entire family and the son was also living in the family along with the father during the lifetime of the father. In such circumstances, it cannot be held that merely because the father died and the son came into possession, the son's posses-sion became adverse. It is well settled that when possession commences in a permissive character it does not become adverse unless by some positive overt act it is indicated that such possession became adverse either in the hands of the successor or even in the hands of the original permissive occupant.'

9. Having considered the entire evidence on the record and all the circumstances of the case I am of the opinion that the possession of the defendant No. 1 over the suit land continued to be permissive after the death of her father Trai-lokya Biswal and therefore no question of adverse possession could arise.

10. There is no merit in this appeal and it is accordingly dismissed. As there is no appearance for the respondents there would be no order as to costs.


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