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2007 Supreme(Ori) 29
2007 (I) OLR — 219
R. N. BISWAL, J.
Dandapani Sahu... Appellant
Versus
Budhuram Lohar and after him Smt. Fulmati Lohar and others... Respondents
Second Appeal No.48 of 1986
Decided on 10th January, 2007.
For Appellant:M/s. S. K. Padhi, S. S. Das, B. Rath, D. Mohapatra, B. K. Sahoo, S. K. Mohapatra and G. Misra
For Respondents:M/s. N. Patra, A. K. Patra, B. N. Sadangi and R. Sarangi
Headnote:SUIT - Plaintiff prayer for declaration of his title and possession over the suit land - Title may either be propriety or possessory - In the present case plaintiff filed suit basing on his previous possession over the suit land - First Appellate Court dismissed the appeal on the ground that the appellant-plaintiff failed to establish his adverse possession over the suit land - Prayer of the plaintiff in the pleading was for declara¬tion or possessory title, so he was not required to prove adverse possession over the same - No issue was framed by the trial Court with regard to adverse possession - On the present facts and circumstances held, it would be just and proper to remand the matter again to the First Appellate Court to assess the evidence of both the parties and pass appropriate order.
First appellate Court committed error in dismissing the appeal holding that the plaintiff-appellant failed to prove his adverse possession over the suit land. The plaintiff filed the suit as possession over the suit land was declared by the Executive Magistrate in favour of the defendant in a proceeding under Section 145 of Cr.P.C. He can succeed if he can prove his previous possession constituting possessory title, provided the defendant has not a better title than his. Admittedly, neither of the parties is the proprietory title holder of the suit land. A possessory title is good against every one who does not have a better title. In the case at hand the appellate Court did not at all consider the evidence adduced by the defendant. He ought to have assessed the evidence of both the parties to find out who was in possession of the disputed land prior to alleged forcible dispossession of the plaintiff and would have disposed of the appeal in accordance with law. (Para - 7)
JUDGMENT
R. N. BISWAL, J. — This Second Appeal is on behalf of the plaintiff.
2. As per the plaint, the plaintiff came to Rourkela in January, 1956 and occupied Ac.0.5 decs. and Ac.0.5.1/2 decs. of land out of plot No.411 and 412 respectively of mouza-Mahulpali, as the same were lying vacant then. He constructed three huts contiguously over an area measuring Ac.0.01.1/2 decs. appertain¬ing to plot No.411 and fenced the remaining portion of the said plot and the entire plot No.412 with AMARI bush and utilized the same as Bari and cowshed. He had been possessing the said land peacefully, openly and exclusively as a matter of right till 1971 when the defendant forcibly dispossessed him out o an area of 41' X 30' of land described in detail in the plaint schedule. So he was compelled to initiate a proceeding under Section 145 of Cr.P.C. vide Criminal Misc. Case No.137 of 1971 in the Court of Sri P. K. Jena, Magistrate First Class, Panposh at Uditnagar against the defendant wherein possession was declared in favour of the latter. The defendant is a stranger to the property and was never in possession of the said land, whereas the possession of the plaintiff matured to title. Hence he filed Title Suit No.26 of 1972 in the Court of the Munsif, Panposh with prayer for declaration of his title and possession over the suit land, as described in the schedule of the plaint, recovery of possession of the same and for declaration that the order passed in Criminal Misc. Case No.137 of 1971 is not binding on him.
3. Though summons were served on the defendant, he did not enter appearance before the trial Court and as such he was set ex parte on 24.11.1972. On 17.1.1973 the plaintiff examined himself as P.W.1 and one Simadri as P.W.2. After assessing their evidence and other documentary evidence the trial Court dismissed the suit on the same day. Plaintiff preferred Title Appeal No.9 of 1973 before the Sub-Judge, Rourkela against the said order of dismis¬sal which was allowed ex parte. An application for amendment of the plaint filed by the plaintiff in the said appeal was also allowed in absence of the Respondent. Misc. Case No.18 of 1974 filed on behalf of the defendant before the first appellate Court to set aside the appellate ex parte decree having been dismissed on 3.7.1975, the defendant-respondent preferred M.A. No.119 of 1975 before this Court wherein this Court set aside the ex parte appellate decree and remanded the matter to hear the appeal afresh. The first appellate Court allowed Title Appeal No.9 of 1973 vide order dated 6.7.1977. The defendant-Respondent chal¬lenged the said order before this Court in Second Appeal No.250 of 1977, which on being allowed on 12.12.1978 the matter was remanded back with direction to dispose of the amendment applica¬tion on hearing both parties once again before hearing the appeal on merit.
4. The defendant-Respondent in his written statement, filed before the first appellate Court in Title Appeal No.9 of 1973 on 7.4.1979 contended that Nabaghana Palei, Govinda Sahu and one Bisoi had constructed the three huts over plot No.411 and resided there. In or about the year 1971 plaintiff purchased the two huts belonging to Govinda Sahu and Nabaghana Palei and pos¬sessed the same. Defendant raised a temporary structure over 41' X 30' of land out of sabik plot Nos.411 and 412 and used the same as cowshed and store house of manure. The portion of land over which the defendant constructed his house along with the land over which he raised the structure for storing manure and the remaining portion of plot No.412 being re-numbered as plot No.1027 was recorded in his name in the current settlement. The rest portion of plot No.411 having been re-numbered as plot No.1027/1247 was recoded in the name of one Baidyanath Ganguly with note of possession in favour of defendant. In the year 1970 defendant demolished the kutcha house which was being used as cowshed and constructed a pucca house over it. When the construc
