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High Court Of Orissa
P. K. MISRA
GAURA NAIK - Appellant
Versus
ARJUN CHARAN DASH - Respondent
Second Appeal 50 Of 1984
Decided On : 03/26/1996
POSSESSION - CHANDANA RAIYATS - ABANDONMENT - ADVERSE POSSESSION - SUIT FOR DECLARATION OF TITLE, CONFIRMATION OF POSSESSION OR RECOVERY OF POSSESSION - NON-JOINDER OF PARTIES - SPECIFIC RELIEF ACT, 1963 - SECTION 6.
Fact of the Case:
Plaintiff filed a suit for declaration of title, confirmation of possession, or recovery of possession and permanent injunction over disputed properties. The defendant claimed that he was related to the original Chandana Raiyats and that the suit lands had been recorded in their names. The trial court dismissed the suit on the ground of non-joinder of parties, but the lower appellate court partly allowed the appeal and declared the possessory title of the plaintiffs in respect of two of the disputed properties.
Finding of the Court:
The High Court held that the trial court erred in dismissing the suit on the ground of non-joinder of parties, as the defendant did not claim any right over the property in question and the plaintiffs did not claim any right over the portion of land under the possession of the non-joined parties. The court also held that the lower appellate court erred in declaring the possessory title of the plaintiffs, as there was no evidence of abandonment by the recorded Chandana Raiyats and no categorical finding regarding the acquisition of title by adverse possession. However, the court found that the plaintiffs were in long possession of the disputed properties and were entitled to a decree for recovery of possession and injunction on the basis of their prior possession as against the defendant.
Issues: 1. Whether the trial court erred in dismissing the suit on the ground of non-joinder of parties? 2. Whether the lower appellate court erred in declaring the possessory title of the plaintiffs? 3. Whether the plaintiffs were entitled to a decree for recovery of possession and injunction on the basis of their prior possession?
Ratio Decidendi: 1. The court held that the trial court erred in dismissing the suit on the ground of non-joinder of parties, as the defendant did not claim any right over the property in question and the plaintiffs did not claim any right over the portion of land under the possession of the non-joined parties. 2. The court held that the lower appellate court erred in declaring the possessory title of the plaintiffs, as there was no evidence of abandonment by the recorded Chandana Raiyats and no categorical finding regarding the acquisition of title by adverse possession. 3. The court held that the plaintiffs were entitled to a decree for recovery of possession and injunction on the basis of their prior possession, as they had been in long possession of the disputed properties and the defendant had failed to prove that he was the successor-in-interest of the original Chandana Raiyats.
Final Decision: The appeal was dismissed, and the parties were directed to bear their own costs throughout.
P. K. MISRA, J.
( 1 ) DEFENDANT is the appellant against a reversing decision. Daitari Dash, the original plaintiff, had filed Title Suit No. 23 of 1979 in the Court of the Munsif, Keonjhar, for declaration of title, confirmation of possession or in the alternative, recovery of possession and permanent injunction. The disputed property has been described in Schedules A, A-1 and A-2 of the plaint.
( 2 ) ACCORDING to the plaintiff, properties described in Schedules A, A-1 and A-2 were being enjoyed by Dukhia Naik, Suban Naik and Sikhar Naik respectively as Chandana Raiyats under Brahmin landlords of the village and were recorded as such in 1914 Settlement. Subsequently, however, Dukhia Naik and Suban Naik abandoned the lands and left the village, Ourgadeipur. The plaintiff, who claims to be one of the co-sharerlandlords, occupied Schedule A land and other portion measuring Ac. 0. 04 decimals of land of Dukhia was given to Mangulu Naik and Sapana Naik, as they were the field servants. Similarly, the plaintiff occupied Schedules A-1 and A-2 lands for more than sixty years as of right and to the knowledge of all others including the defendant's family and the co-sharer Brahmins of the village. The plaintiff claims to have perfected possessory right. It is asserted that defendant was in no way related to Dukhia or Suban. During the current Major Settlement operation, it transpired that about Ac. 0. 11 decimals of Suban's land under possession of defendant, whereas Schedule A-2 land measuring Ac. 0. 04 decimals under possession of the plaintiff had been recorded in the name of defendant's grandfather Sikhar in the 1914 Settlement. It is asserted that as the lands were contiguous, either the Record-of-Rights of 1914 had been prepared erroneously, or there was an exchange between Sikhar and Suban. It is further asserted that taking advantage of the situation, defendant trespassed upon the disputed lands on 30-8-1979 and damaged some of the seedlings for which F. I. R. was lodged by the son of the plaintiff, but since no action was taken, the plaintiff was forced to file the suit.
( 3 ) ,. The defendant in his written statement while denying the plaint allegations claimed that he was related to Suban. It has been further claimed that the suit lands had been recorded in the names of Sikhar, Suban and Dukhia was possessing Schedule A land measuring Ac. 0. 05 decimals which is now under the possession of Suban and Mangulu who have not been impleaded in the suit. The defendant as the grandson of Sikhar Naik is possessing his lands as well as the lands recorded in the name of Suban. On the death of Suban without leaving any issue, Sikhar being the brother of Suban possessed Schedule A-1 lands. It is asserted that the plaintiff has manipulated the Current Settlement records and the suit is liable to be dismissed, as he does not have any right over the disputed property.
( 4 ) DURING the pendency of the suit, the original plaintiff having died, his legal representatives were impleaded as plaintiffs 1 to 5.
( 5 ) THE trial Court held that Dukhia, Suban and Sikhar had been recorded as Chandana Raiyats and there was no reliable evidence that Dukhia and Suban had abandoned the lands. It further held that Mangulu and Suban were not parties to the suit and it was difficult to come to a definite finding if they were in possession of Ac. 0. 04 decimals of land out of the lands of Dukhia Naik or the entire land of Dukhia Naik. It was further held that plaintiffs had failed to prove their long possession or possessory title in respect of the disputed property. On the aforesaid findings, the suit was dismissed.
( 6 ) IN Title Appeal No. 2 of 1983 carried by the plaintiffs, the lower appellate Court partly allowed the appeal and declared the possessory title of the plaintiffs in respect of the lands described in Schedules A and A- 1 of the plaint and directed for recovery of possession of the aforesaid lands and decree for permanent injunction was a
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