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2014 Supreme(Ori) 445
HIGH COURT OF ORISSA
D. DASH, J.
Sarat Kumar Panda and another - Appellants
Versus
Sashibhusan Tripathy and another - Respondents
R. F. A. No. 199 of 2003
Decided On: 11th July, 2014
For Appellants: M/s. Susanta Ku. Dash, S.K.Mishra, B.Mohapatra, S.K.Das, Miss A.Dhalasamanta
For Respondents: M/s. S.B.Jena, S.R.Patnaik, P.Patnaik, J.Bhagat, R.K.Mohanty, D.K.Mohanty, A.P.Bose, S.K.Mohanty, P.K.Samantaray, S.Mohanty, M.R.Dash, D.Pradhan, T.K.Jena
Headnote:1. ADVERSE POSSESSION - Acquisition of title by adverse possession - Possession to become adverse must be actual, visible, exclusive, hostile and continued during the time necessary to create bar under the statute of limitation - Detail stated.
The classical requirements stand that the possession must be nec vi, nec calm and nec precario that is to say, the possession must be adequate in continuity, in publicity and in extent. It means possession by a person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession provided the true owner is under a disability or incapable of suing. Adverse possession is a possession that is hostile, under the claim or colour of title, actual, open, notorious, exclusive, and continuous continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by the operation of limitation of action. Mere possession even of a trespasser will not constitute adverse possession unless accompanied by open assertion of hostile title. It is also the settled law that adverse possession commences in wrong and is aimed against right and matures as such by holding such property adverse to the real owner wholly excluding him from enjoyment of his property in any manner. (Para - 9)
2. LAND - Possession - Permissive possession and hostile animus operate in conceptually different fields - Adverse possession designates a possession in opposition to the true title and real owner and implies that it commenced in wrong and maintained against right - Possession commencing with the permission of the owner does not become adverse by mere change in the mental attitude of the person in possession - When the origin of the entry is permissive, there is presumption that the possession is continuing as permissive.
Permissive possession never becomes hostile possession till there is assertion of hostile possession about the knowledge of the true owner. When the party accepts that possession was given on the basis of agreement for sale, the possession can never be adverse but it is permissive and the party cannot be said to be in possession in assertion of his own title adverse to the real owner. (Para – 11 & 15)
3. ADVERSE POSSESSION - Establishment of plea - Not sufficient to prove mere possession for the required period but such possession should be adverse and hostile to the claims of the true owner Burden to establish the possession lies upon the person pleading the case of adverse possession. (Para - 9)
4. MAXIM - "nec vi, nee calm and nee precario" - Possession must be adequate in continuity, in publicity and in extent. (Para - 9)
5. MAXIM - "Corpus possidendi and animus possidendi" Physical possession of one hand and intention to exclude adversary from the possession overtly without admitting any concealment and must be adequate in continuity. (Para - 9)
JUDGMENT
The unsuccessful defendant No.1 and 2 are the appellants before this Court, being aggrieved by the judgment and decree passed by the learned Ad hoc Additional District Judge (FTC-4), Bhubaneswar in T.S. No. 380 of 2001 and they have called those in question in this appeal. By the said judgment, the suit of the plaintiff (respondent no. 1) for declaration of right, title and interest over the property described in A and A-2 of the plaint as prayed for has been decreed.
2. For the sake of convenience, clarity and to avoid confusion the parties hereinafter have been referred to as they have been arrayed in the Court below.
3. The case of the plaintiff is that he is the owner of a piece of land under hal plot No. 577 described in Schedule A-1 of the plaint. The land under Plot No. 578 originally belonged to defendant No.3 who is the cousin brother of the plaintiff and that adjoins the land under Plot No. 577. Plaintiff's further case is that he and defendant No.3 had purchased Plot No. 577 and 578, two adjoining plots in the year 1965. During Dushera period of the year 1968, when they were in the village in the district of Bargarh, defendant No.3 expressed his desire to alienate the land under Plot No. 578 for a consideration of Rs. 10,000/- and the plaintiff agreed to purchase the same. It is stated that the plaintiff paid a sum of Rs. 5,000/- while agreeing to pay the rest amount before the registration of the document in that regard. The arrangement is said to have been an oral one and that is because of the relationship. Defendant No.3 thereafter permitted the plaintiff to possess the said piece of land and the plaintiff continued to possess the said land of defendant No.3 since then. In the year 1969, towards the end, plaintiff cleared the land which were having some wild shrubs and also filed the low lying portion by stone and earth by engaging labourers and spending money from his purse: It is further stated that in January, 1970, the plaintiff construed a boundary wall with stones on the eastern side of his land and the land of defendant No.3 and stone pillars were fixed within the short distance of the eastern boundary followed by fencing of the some with a barbed wire and fixing of a gate. It is further stated that on the southern side, the plaintiff constructed stone pillars fenced with barbed wire and there was no necessity to fence the northern side as the adjoining land of one Damani Devi had the green fence in existence. So, the plaintiff claims to have been in possession of his land as well as the land of the defendant No.3 in one compact block. The plaintiff further states that he planted some trees over his land as well as the land of the defendant No.3 and in the year 1971, he construed a pucca house consisting of two rooms with asbestos roof on his land and had dug a well. In the said house, the plaintiff stayed with his family members. In the year 1987, plaintiff again construed a pucca building on his own land and thereafter in 1988, he also construed an industrial shed on the land of defendant No.3 for its utilization in manufacturing plastic and polished doors.
The defendant No.3 although promised to execute the registered sale-deed on receiving rest consideration of Rs. 5,000/- did not come forward to do so despite several request from the side of the plaintiff. More specifically even in the month of November, 1978, the plaintiff when lastly requested the defendant No.3 to execute the sale-deed, the defendant No.3 declined to do so and rather on 26.01.1979 made attempt to dispossess the plaintiff from the land with the assistance of some hooligans, but he failed in his attempt to do so. Thus the plaintiff claims to have been in possession of the suit land peacefully and continuously with necessary hostile animus till filing of the suit. However, it is the further case of the plaintiff that during settlement, the defendant No.3 managed to record his land in respect of land measuring an area of Ac. 0.20
