Back
HIGH COURT OF ORISSA
S. K. Ray, J.
KALI DEI - Appellant
Versus
BRUNDABAN MALIK - Respondent
Second Appeal 76 Of 1968
Decided On : NOVEMBER 15, 1971
ADVERSE POSSESSION - LIMITATION ACT, 1908 - ARTICLE 142 - POSSESSION - ONUS OF PROOF - ADVERSE POSSESSION - PROOF - DOCUMENT - EXECUTION BY ILLITERATE WOMAN - REQUIREMENTS - ERROR OF RECORD - DISCUSSION OF EVIDENCE.
Fact of the Case:
Plaintiff filed a suit for declaration of title and confirmation of possession of suit properties, or in the alternative, for recovery of possession and permanent injunction. The suit properties were sold in execution of a money decree against the husband of the original defendant and purchased by the plaintiff. The defendant claimed title by adverse possession.
Finding of the Court:
The lower appellate court erred in applying Article 65 of the new Limitation Act instead of Article 142 of the old Limitation Act, which was applicable to the case. The onus was on the plaintiff to prove not only his title but also his possession within 12 years of the suit. The lower appellate court also erred in accepting Ext. 1 as a genuine document without satisfying itself that the requirements of law for binding an illiterate woman with the contents of a document were fulfilled. Further, the lower appellate court failed to discuss the oral evidence adduced by the defendant in support of her claim of adverse possession.
Issues: 1. Whether Article 65 of the new Limitation Act or Article 142 of the old Limitation Act was applicable to the case. 2. Whether the onus was on the plaintiff to prove his possession within 12 years of the suit. 3. Whether Ext. 1 was a genuine document binding on the defendant. 4. Whether the lower appellate court erred in not discussing the oral evidence adduced by the defendant in support of her claim of adverse possession.
Ratio Decidendi: 1. Article 142 of the old Limitation Act was applicable to the case, as the suit was filed before the new Limitation Act came into force. 2. The onus was on the plaintiff to prove not only his title but also his possession within 12 years of the suit. 3. Ext. 1 was not a genuine document binding on the defendant, as the requirements of law for binding an illiterate woman with the contents of a document were not fulfilled. 4. The lower appellate court erred in not discussing the oral evidence adduced by the defendant in support of her claim of adverse possession.
Final Decision: The judgment and decree of the lower appellate court were set aside, and the case was remanded for rehearing and fresh disposal of the appeal in accordance with law.
S. K. RAY, J.
( 1 ) THIS is the defendant's appeal from the reversing decision of Sri D. P. Shanna, addl. Subordinate Judge dated 16-9-67 passed in T. A. No. 128/66. It arises out of a suit for declaration of plaintiff's right and title to the suit properties and confirmation or in the alternative for recovery of possession and for permanent injunction.
( 2 ) THE suit-properties described in Schedule A of the plaint originally belonged to the husband of the original defendant, Sakhi Bewa. In execution of a money-decree against him and his brother, these properties were sold in auction and purchased by the plaintiff. Possession was delivered to him through Court on 18-641. He continued in possession thereof till 1956 when he engaged the defendant as a watcher for a remuneration of Rs. 30/-per year and in evidence of such arrangement, defendant executed Ext. 1 on 28-3-56. This document is nomenclatured as "jaguali Patra". Subsequently the plaintiff being aware that the defendant was setting up an adverse claim to the disputed properties, filed the present suit on 23-12-63 for the aforesaid reliefs. This is the plaintiff's story.
( 3 ) ADMITTEDLY the properties in the suit belonged to her husband and was sold in execution of money-decree but despite such sale and consequent delivery of possession in execution case in favour of the plaintiff she continued in possession and the plaintiff never got actual physical possession thereof. She was paying rent throughout. Thus, she being in possession continuously for more than 12 years adversely to the plaintiff, has acquired title to it by adverse possession.
( 4 ) THE trial Court dismissed the suit on the finding that the plaintiff never got possession through Court even though he purchased the same in Court auction. The defendant continued in possession thereafter and acquired title thereto by adverse possession. He further held that as the plaintiff has filed the suit for declaration of title and for recovery of possession the onus is on him to prove not only his title, but also his possession within 12 years of the suit, and he having failed to discharge the same, the suit is bound to fail.
( 5 ) THE lower appellate court reversed the decision and decreed the suit. He held that Article 65 of the new Limitation Act is applicable to the case and according to him, the plaintiff having proved his title, is under no further obligation to prove his possession within 12 years of the suit. It is for the defendant who puts up a claim of acquisition of title by adverse possession to establish the same by clear and cogent evidence. In his opinion, the defendant failed to prove her possession adversely to the plaintiff for a continuous period of 12 years. He accepted Ext. 1 (Jaguali patra) as a piece of genuine document, but held that the said document having been executed by the defendant, her possession was permissive. The suit was, therefore, decreed.
( 6 ) THE learned counsel for the appellants has advanced four points. His first contention is that Article 142 of the Limitation Act of 1908, and not Article 65 of the new Limitation Act is applicable to the case. According to it, the plaintiff has not only to prove his title, but also subsisting possession within 12 years of suit. Thus having applied the wrong Article of the Limitation Act he has thrown the initial onus on the defendant and has appraised evidence from that angle and so his decision has been vitiated. The second contention is that the defendant who is an illiterate lady, having denied execution of Ext. 1, and there being no endorsement on it that it was read over and explained to her and the scribe having also failed to depose about such legal requirements having been complied with, no legal liability should attach to her on basis of that document. The third contention is that the decision of the lower appellate Court is vitiated on account of the commission of a number of errors on record. Fourthly, it is contended that
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
