2005 Supreme(Ori) 560

2005 (II) OLR — 330
A. S. NAIDU, J.
Pragnya Rout... Appellant
Versus
Hemaprava Ray and others... Respondents
R.F.A. No. 80 of 2003
Decided on 12th August, 2005.

Headnote:1. CIVIL PROCEDURE CODE, 1908 - Sec. 96 - First appeal - Appeal preferred by the appellant-defendant against the decree passed by the Additional Civil Judge (J.D.) Cuttck declaring respondent-plaintiff and respondent Nos. 6 to 11 as original owners of the suit property - Claim of title by adverse possession - Collusive decree - Invalid agreement and sale deed - Vendor may not have any title to convey when title deed conveys no title - Appreciation of evidence - Criminal conduct and antecedents of defendant No. 4 (the husband of the appellant-defendant No. 5) - R.O.R. holding receipt, approved plan of C.D.A., Electric Bills etc. and agreements with tenants etc. stands in the name of the husband of the respondent-Plaintiff - The husband of the plaintiff, her son and she herself were possessing the suit land till 1996 exercising their various rights - The suit was filed in the year, 2000 - Plea of the defendant No. 4 for asserting adverse possession continuously for more than 12 years prior to the institution of the suit not acceptable - On consultative assessment of entire evidence, both oral and documentary held the trial Court has discussed the evidence in extenso, put right questions and has arrived at answers and the findings do not suffer from any illegality or infirmity necessitating interference of the High Court - Appeal fails and dismissed with costs - Judgment and decree of the Court below are confirmed.

       (Paras - 3, 20, 21, 24 and 25)

       2. CIVIL PROCEDURE CODE, 1908 - Order 41, Rule 22 - Cross objection - Cross objection is a matter of procedure - There are three situations, namely (1) The impugned decree is partly in favour of the appellant and partly in favour of the respondent, (2) The decree is entirely in favour of the respondent though an issue has been decided against him and (3) The decree is entirely in favour of the respondent and all the issues have also been answered in his favour, but there is a finding in the judgment which goes against him - Only the first category necessitates to take cross objection. (Para - 14)

       3. ORISSA ESTATES ABOLITION ACT, 1951 - Secs. 6 and 7 read with Government Circular dated 14.2.1977 - The entire Estate vests in the State free from all encumbrances rock, stock and barrel - The tenants inducted by an intermediary who were in possession of the land prior to or on the date of vesting are to continue in the same status, but under the State - Collectors have been directed to settle Bebandobasti lands suo motu in favour of the intermediaries in possession.(Paras - 10 and 15)

       4. ADVERSE POSSESSION - Possession is prima facie a proof of title, and a previous possession though title will constitute a good foundation for suit for eviction of a person who is equally a trespasser and has no better title to the disputed property - As between two persons who are unable to make out valid title, one who is in possession and has been in possession for several years, if dispossessed by another who had no better title than the person whom he dispossess, the person who was in possession earlier is entitled to be restored to possession - Classical requirement of adverse possession - "Nec vi nec calm and nec precario" (it should be peaceful, open and conspicuous). (Paras - 6 and 16)

       5. LIMITATION ACT, 1963 - Arts. 64 and 65 - To acquire title by adverse possession - The possession must be open, and without any attempt at concealment - It must be actual, viable, exclusive, hostile, continued for over the statutory period - The hostile character of possession is gauged by animous of the person setting up adverse possession - Sporadic possession being common, excites no particular attention. (Para - 16)

       6. TRANSFER OF PROPERTY ACT, 1882 - Sec. 54 - A registered document which is otherwise ab initio void need not be set aside - If the deed is void at the threshold, no steps need be taken to set it aside - The vendor may not have title to convey, and in such a case the title deed conveys no title and can be ignored as not worth the paper written on. (Para - 22)

       7. WORDS AND PHRASES - (i) Madhya Satwadhikari - It means and connotes a tenure holder, (ii) Tenure - Tenure is an Estate as has been defined in Section 2 (g) Section 7.

       8. SUIT - Title suit - Trial Court decreed the suit against defendant No. 5 holding that no person other than ‘S’ was the title holder and owner of the suit land and that the defendant had no legal right over the same - Trial Court also held that Defendant No. 4 had no right to enter into any agreement to alienate the suit property in favour of defendants 1 to 3 - Appeal - Held, a person can alienate only the right which he possesses over the property and the purchasers acquire only that right - Thus ‘S’ has acquired intermediary rights by sale deed - Findings of Court below as to possession is confirmed - Defendant No. 4 having acquired no title to the suit property, nothing could pass in favour or defendants 1 to 3 in whose favour defend¬ant had executed agreements to sell the suit land.

       (Paras - 5, 15, 20 and 21)

       9. DECREE - A decree and/or a registered document which is otherwise ab initio void need not be set aside - Such decree does not strip the right of a party who is the real owner and was not a signatory to the document in question or a party to the suit. (Para - 22)

       10. POSSESSION - Possession is prima facie a proof of title, and a previous possession though without title will constitute a good foundation for a suit for eviction of a person who is equal¬ly a trespasser and has no better title to the disputed property - As between two persons who are unable to make out valid title, one who is in possession and has been in possession for several years, if dispossessed by another who had no better title than the person whom he dispossesses, the person who was in possession earlier is entitled to be restored to possession. (Para - 6)