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2017 Supreme(Ori) 83
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Sadananda Dharua and others - Appellants
Versus
Debadi Bhue - Respondent
S.A. No. 35 of 1998
Decided On : 27-01-2017
For the Appellants :Mr. R.B. Mohapatra, Advocate.
For the Respondent:Mr. B. Dash, Advocate on behalf of Mr. N.C. Pati, Advocate.
The central legal point established in the judgment is the requirement to prove adverse possession and the principle that a person out of possession cannot seek the relief of injunction without claiming the relief of possession.
Headnote:
adverse possession - Property Dispute - Section 144 Cr.P.C., Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033, Sant Lal Jain V. Avtar Singh, AIR 1985 SC 857, Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 - The court discussed the legal provisions related to adverse possession and the requirement to prove peaceful, open, and continuous possession. The court also highlighted the principle that a person out of possession cannot seek the relief of injunction without claiming the relief of possession. The judgment emphasized the need to avoid multiplicity of suits and the importance of not denying relief merely because the plaint is in the form of a suit for mandatory injunction.
Fact of the Case:
The plaintiff filed a suit for declaration of right over a land, permanent injunction, and mandatory injunction to demolish unauthorized construction made by the defendants. The defendants claimed adverse possession and perfect title over the land.
Finding of the Court:
The trial court held in favor of the plaintiff, stating that the suit land belonged to the plaintiff's father and adverse possession claim by the defendants was negatived. The appellate court affirmed the trial court's decision.
Issues: The issues included the ownership of the suit land, adverse possession claim, and the maintainability of the suit for permanent injunction without the prayer for recovery of possession.
Ratio Decidendi: The court emphasized the requirement to prove adverse possession and the principle that a person out of possession cannot seek the relief of injunction without claiming the relief of possession. It also highlighted the need to avoid multiplicity of suits and not to deny relief merely because the plaint is in the form of a suit for mandatory injunction.
Final Decision: The appeal was dismissed, and no costs were awarded.
JUDGMENT :
Dr. A.K. Rath, J.
The defendants are the appellants against a reversing judgment.
2. The respondent as plaintiff instituted Title Suit No.15 of 1995 in the court of the learned Civil Judge (Jr.Division), Padampur for declaration of right over the suit land, permanent injunction retraining the defendants from creating any disturbance in his peaceful possession and for mandatory injunction to demolish the unauthorized construction made over the suit land. The case of the plaintiff is that his father Mangalu Bhue had purchased the suit plot comprising Ac.0.14 dec. appertaining to M.S. Plot No. 373 by means of an unregistered sale deed dated 27.4.1956. The said land is a portion of the suit plot comprising only Ac.0.02 dec. His father Mangalu Bhue was in possession of the suit land. After death of his father, he continued to possess the same. The defendants proclaiming themselves as the office bearers and members of Indira Club, Purena trespassed into the suit Bari, damaged the vegetables and forcibly started construction over a portion of the suit land. The defendants 1 and 2 initiated a proceeding under Section 144 Cr.P.C. before the S.D.M., Padampur on the plea that they had purchased the suit land in the year 1967 from the widow of Mahadeb Bhue. On 16.8.1995, the Executive Magistrate dropped the proceeding after lapse of the statutory time of two months. After the proceeding was dropped, the defendants unauthorisedly raised walls over the suit land in spite of protest by him.
3. Pursuant to issuance of summons, the defendants entered appearance and field a joint written statement denying possession of the plaintiff over the suit land or alleged purchase by the father of the appellant. It is stated that there was a Kacha house of one Jaga Kandha on the suit land. After his death, his sons, namely, Ramhari and Srihari remained there. Before migrating to another village, they entrusted the same to Indira Club in the year 1976, whereafter, Indira Club is in possession of the same. The club was registered in the year 1987. It made a pucca construction on the suit land. The club is in possession of the suit land for more than 12 years before institution of the suit and as such it perfected its title by way of adverse possession.
4. On the inter se pleadings of the parties, the learned trial court struck eight issues. To substantiate case, the plaintiff had examined four witnesses and on his behalf, five documents were exhibited. The defendants had examined five witnesses and on their behalf, two documents were exhibited.
5. The learned trial court held that Mahadeb was the owner of the suit land. He got the same by means of a unregistered sale deed dated 27.6.56, vide Ext.2. He had title over it and answered issue No.2. With regard to Issue No.3, it held that the sale deed, vide Ext.2, is genuine and valid. With regard to Issue No.4, it held that the suit land was never in possession of Ramahari and Srihari and, as such, it could not have been delivered in favour of Indira Club. With regard to issue no.5, it held that possession of the defendants to be just before the suit and did not believe the possession of the defendants over the suit land much less for 12 years and thereby concluded that Indira Club had never perfected its title over the suit land. With regard to issue nos.6 and 7, as the same were not pressed by the parties, no finding was given. With regard to issue no.8, even though the learned trial court held that the defendants forcibly possessed the suit land before institution of the suit and thereby concluded that in a case of this nature, the plaintiff should have sought for the consequential relief of recovery of possession from the defendants and since the plaintiff had filed the suit for a mere declaration without the prayer of recovery of possession that suit was not maintainable. Held so, the learned trial court dismissed the suit.
6. Aggrieved by and dissatisfied with the judgment and decree of the learned t
