1. Luxman Behera and Bida Behera were brothers. Luxman died in about 1910 leaving behind four daughters--Ani (defendant-2), Bhani (Plaintiff), Jatri (defendant-3) and Gura (who died long ago). The entire disputed land consists of about 17 acres and is described in Schedule Ka of the plaint. Schedule Kha is 2.69 acres and is a part of Schedule Ka. Schedule Ga constitutes a part of Schedule Kha. Plaintiff's suit was for partition of Ka schedule property amongst the sisters in three equal shares excluding Kha schedule property, for declaration of title to Kha schedule property, for confirmation of possession of the Ga schedule property and for recovery of possession of Ka schedule property excluding Ga schedule. Defendant-1 if the natural born sou of Bida Behera. Defendants 1(ka) to 1(gha) are the sons of defendant-1.
Plaintiffs case is that at the time of death of Luxman, she and her sisters were minon and the suit properties were looked after by Bida Behera who performed the marriage of the last two daughters and remarriages of all the four daughters. Bida Behera got the disputed properties fraudulently recorded in the name of defendant-1 in the settlement of 1322 V. S. (1915). Till remarriage the sisters were living in the residential house of Luxman and were enjoying the produce of the land. After their remarriage they used to get their sharei of the produce of the land from Bida Behera and, after his death, from defendant 1.
Sometime after her remarriage plaintiff came to reside in the village of her father and constructed a house upon Ga schedule land and is residing in that house for the last 30 years. In 1953 plaintiff's husband wanted to cultivate the suit land personally, but defen-dant-1 obstructed him from doing so. Thereupon she filed an application before the Mutation Officer for recording Kha schedule property in her name as it was given to her by her father as dowery at the time of her marriage. The Mutation Officer partly allowed her claim. In appeal, the mutation petition was dismissed. Hence the suit.
2. Defendants 2 and 3 supported the case of the plaintiff in toto.
Defendant-1 contested the suit alleging that Luxman adopted him and the disputed properties were recorded in his name in the settlement of 1322 V. S. as the son of Luxman. His natural father Bida Behera cultivated the disputed lands on his behalf and defendant-1 is cultivating the same after his father's death. Bida Behera performed the marriages of two sisters and the remarriages of all as it was the duty of defendant-1 to perform the marriage as a brother. No part of the produce of the land was ever given to the plaintiff or to her sisters and defendant-1 was not in permissive possession on behalf of the sisters. On account of the poverty striken condition of the plaintiff defendant-1 got a house constructed on Ga schedule property and allowed her to reside therein.
3. The learned Subordinate Judge recorded the following findings --
(i) Defendant-1 failed to establish the story of adoption;
(ii) Plaintiff failed to establish that Kha schedule property was given to her by her father by way of dowery at the time of her marriage;
(iii) Plaintiff also failed to establish that she constructed the house on Ga schedule land and was exclusively entitled to it;
(iv) Bida Behera was, and after him, defendant 1 is in actual physical possession of the disputed properties till the date of the suit after Luxman s death; and
(v) the character of possession of Bidt Behera and defendant-1 was that of a trustee, and, as such, defendant-1 acquired no title by adverse possession.
On the aforesaid findings, the learned Subordinate Judge negatived exclusive claim of the plaintiff to Kha schedule property. On the conclusion that defendant-1 did not acquire title by Adverse possession to Kha schedule properly and did not inherit the same as an adopted son, the suit for partition was decreed and a direction was issued to divide Ka schedule property into three equal shares.
4. Two questions arise for consideration In this appeal --
(i) Is the possession of defendant-1 permissive? and
(ii) Is defendant-1 the adopted son of Luxman?
5. Admittedly defendant-1 natural father Bida was in possession of the disputed lands till his death in about 1944 and, after him, defendant-1 is in possession till the date of the suit in 1961. Unless possession is permissive, the possession of defendant-1 for more than the statutary period would result in acquisition of a title by prescription. The sole question for consideration in this regard is whether his possession is permissive and that of a trustee. If at the inception the possession was permissive and that or a trustee, subsequent possession for any length of time would continue to be permissive unless hostile animus ig pleaded and proved by defendant-1. The onus is on the plaintiff to establish that the initial possession was permissive.
6. Mr. Acharya placed reliance on the following circumstances in support of the argument that the possession was permissive. Luxman's wife died 15 days after the death of Luxman. Bida was the paternal uncle of the plaintiff and her sisters and was taking their care after the death of Luxman, During their minority he performed the marriage of two sisters and the remarriage of all. At the time of Luxman's death, defendant-2, plaintiff. Gura and Jatri were respectively 14, 12, 5 and 1 year old. Pindika, another paternal uncle and Bida cultivated the lands after Luxman's death. Bida was paying rent for all the lands. Defendant-3 continued to live in the house of Luxman till her remarriage.
None of the circumstances, either by itself or cumulatively, establishes a case of permissive possession. The last daughter attained majority in 1929. In the settlement of 1322 V. S., defendant-1 was recorded as the son of Luxman Behera. For more than 30 years prior to the suit, even though all the daughters are major, they did not take possession of the land from defendant-1. There is no satisfactory evidence to show that at any time defendant-1 gave any part of the produce of the land to the sisters. In the mutation case, plaintiff deposed to the following effect --
All lands of my father's land are in posses-lion of the objector since my father's death. He cultivates all the lands. I asked him to enjoy half the produce and give the half for the last four or five years,
Thus on plaintiff's own case, as presented before the Mutation Court, she asked for half the produce only for 4 to 5 years before that and not earlier. Admittedly Bida was, and after him defendant-1 is paying rent. There is no evidence to show that at the inception the possession was permissive. When Luxman and his wife both died in course of 15 days in 1910, Bida was likely to take care of the children and to perform the marriage and remarriage of the daughters. The mere fact of taking care of the children and performing their marriages and remarriages would not necessairly lead to the conclusion that the possession was permissive. In the absence of any other evidence that Bida and defendant-1 possessed the lands as trustees, plaintiff's case of permissive possession cannot be accepted.
Even assuming that the possession was permissive at the inception, it was clearly indicated to be adverse when in 1915 the lands were recorded in the name of defendant-1. Even if some of the sisters were minors at that time, the fact remains that from 1929 onwards all the sisters were major. They did not raise any protest or objection to the continuance of the record-of-rights in the name of defendant-1, and payment of rent in his own right, title and interest. Thus even if the possession might have been permissive at the inception, hostile animus was expressed for over the statutory period and the possession of defendant-1 in his right title and interest thereafter creates a title in his favour by prescription. Plaintiff has no title to the disputed property and the suit for partition must accordingly be dismissed,
7. In view of the fact that defendant-1 has acquired title to the disputed land by adverse possession, it is unnecesary to examine whether he was the adopted son of Luxman.
8. There was a talk of compromise at one stage of the hearing of the appeal. Defendant-1 had agreed to part with Ga schedule property to the plaintiff and some portions of Kha schedule property. As the compromise failed, the appeal was argued fully and we reached the conclusion that the plaintiff's suit was to be dismissed, we asked Mr. Ray to show some sympathy to the plaintiff.
In response to our suggestion, Mr. Ray stated that defendant-1 was willing to part with Ga schedule property in favour of the plaintiff and to pay her Rs. 2000/- by way of sympathy. Defendant-1 was present in Court and Mr. Ray paid Rs. 2000/- in our presence to Mr. Acharya to be paid to the plaintiff. This payment of Rs. 2000/- and abandonment of claim in Ga schedule property by defendant-1 are only by way of sympathy shown by defendant-1 to the plaintiff alone and not to other sisters and have nothing to do with the merits of the case on which we have expressed our view. As a result of this concession, plaintiff's title to Ga schedule property it declared and she is entitled to confirmation of possession. The suit for partition must, however, fail.
9. In the result the judgment of the trial Court is set aside and the appeal is allowed in part as indicated above. In the circumstances, parties to bear their own costs throughout.
10. I agree.