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Dhaneswar Mahanty and ors. Vs. Sitanath Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 157 of 1970
Judge
Reported inAIR1979Ori177
ActsLimitation Act, 1963 - Schedule - Article 65
AppellantDhaneswar Mahanty and ors.
RespondentSitanath Das and ors.
Appellant AdvocateB.K. Pal and ;B. Pal, Advs.
Respondent AdvocateS. Mohanty and ;A.S. Naidu, Advs.
DispositionAppeal dismissed
Excerpt:
.....the suit having been filed on 1-12-1965, the burden lay on the defendants to show loss of title of the plaintiffs and the learned subordinate judge came to the correct conclusion on the basis of the evidence on record that defendants had failed to discharge their burden. 6. so far as the repairs to the house are concerned, defendants have failed to prove that such repairs were at the behest of the plaintiffs and on the understanding that plaintiffs would bear the same. even if defendants had undertaken the repairs, once they failed to establish that the repairs had been undertaken at the request of the plaintiffs and with the express understanding that the same would be paid for, defendants are not entitled to ask for compensation. in the circumstances, we agree with the..........to it within municipal holding no. 426 of ward no. 8 of puri town happened to be their ancestral property. defendants 1 to 3 are close relations of the plaintiffs. father of defendants 2 and 3 came to seek service at puri and was allowed to remain with the plaintiffs' father in the disputed house as an act of compassion. he continued to live there till his death in 1930. defendant no. 3 was then a small boy and was brought up in the house by a maid servant who died in 1960. plaintiffs' father died in 1936 and their mother lived in the disputed house till she was moved to the village in 1956. the house was under the occupation of the maid servant and was taken care of by defendant no. 1. defendant no. 1 got service in radha-ballavi math. in 1961, plaintiff no. 1 came to know that.....
Judgment:

Misra, J.

1. Defendants are in appeal against the decree passed by the learned Subordinate Judge of Puri allowing plaintiffs' claim for title and recovery of possession of the disputed property.

2. Plaintiffs filed a suit on 1-12-1965 alleging that the disputed property which is a house and the property appurtenant to it within municipal holding No. 426 of Ward No. 8 of Puri Town happened to be their ancestral property. Defendants 1 to 3 are close relations of the plaintiffs. Father of defendants 2 and 3 came to seek service at Puri and was allowed to remain with the plaintiffs' father in the disputed house as an act of compassion. He continued to live there till his death in 1930. Defendant No. 3 was then a small boy and was brought up in the house by a maid servant who died in 1960. Plaintiffs' father died in 1936 and their mother lived in the disputed house till she was moved to the village in 1956. The house was under the occupation of the maid servant and was taken care of by defendant No. 1. Defendant No. 1 got service in Radha-ballavi Math. In 1961, plaintiff No. 1 came to know that defendant No. 1 had got himself mutated in the municipal records without plaintiffs' knowledge. As plaintiffs were living away with plaintiff No. 1 who was serving elsewhere, this fact had not been known earlier. On plaintiff No. 1's application, his name was mutated in the municipal record. When plaintiff No. 1 ultimately wanted to settle down at Puri on permanent basis in 1962 when he superannuated from service, he required the defendants to deliver vacant possession. Defendants did not do so though they had promised and, therefore, ultimately the suit was filed.

3. Defendants filed separate written statements, but essentially took the same defence. They pleaded that the suit was barred by limitation and they had acquired title by adverse possession. They further pleaded that they had undertaken substantial repairs to the house at their cost.

4. Several issues were framed and at the trial plaintiffs examined 3 witnesses including plaintiff No. 1 and defendants examined 4 witnesses. Khatian and municipal records were exhibited on the side of the plaintiffs. The learned Subordinate Judge ultimately held that plaintiffs had title to the property and their anterior title had not been lost by adverse possession of defendants. He found that the defendants had lived in the house as licensees and accordingly decreed the suit.

5. Mr. Pal for the appellants strenuously contended that the judgment of the trial court was wrong and the learned trial Judge should have accepted the defence plea of acquisition of title by adverse possession. Defendants did not clearly plead as to how they came into possession of the property. Inasmuch as the property belonged to the plaintiffs from the time of their ancestors, and the defendants were not able to show the manner of their getting into possession of the property and in view of the relationship between the parties, the learned trial Judge rightly accepted the plaintiffs' case that defendants were permissive occupants. Once possession began with permission, it could never become adverse unless hostile animus was expressed at any particular time to the knowledge of the plaintiffs. In the written statements of the several defendants, there was no plea as to when such hostile animus was exhibited. Plaintiffs admitted that defendants were living for more than thirty years in the house, but mere living for a long time extending over the statutory period would not lead to acquisition of title. In our view, the learned Subordinate Judge came to the right conclusion regarding plaintiffs' title. The suit having been filed on 1-12-1965, the burden lay on the defendants to show loss of title of the plaintiffs and the learned Subordinate Judge came to the correct conclusion on the basis of the evidence on record that defendants had failed to discharge their burden.

6. So far as the repairs to the house are concerned, defendants have failed to prove that such repairs were at the behest of the plaintiffs and on the understanding that plaintiffs would bear the same. Even if defendants had undertaken the repairs, once they failed to establish that the repairs had been undertaken at the request of the plaintiffs and with the express understanding that the same would be paid for, defendants are not entitled to ask for compensation. In the circumstances, we agree with the findings of the learned Subordinate Judge that the plaintiffs have title to the property and since the defendants have failed to establish any right or interest in the property, they are liable to be evicted and a decree for eviction has been appropriately passed against them. There is absolutely no merit in the appeal and it must accordingly be dismissed. We make no order for costs in this Court.

Mohanti, J.

7. I agree.


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