The legal principle established is the requirement of physical/actual, exclusive, open, uninterrupted, notorious, and hostile possession for adverse possession, and the inconsistency between claims based on title and adverse possession.

JUDGMENT :

A.K. RATH, J.

Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, confirmation of possession and permanent injunction.

2. Case of the plaintiff is that he is the owner of the suit land. The suit land has been recorded in his name. He is in possession of the same. He is paying rent. Defendant no.1 is the friend of his brother. Defendants 2 to 5 are the family members of defendant no.1. The plaintiff entrusted defendant no.1 to supervise the suit land. Taking advantage of the same, defendant no.1 created a forged unregistered sale deed in his favour in respect of the suit land. He had not executed any document in favour of any body. Neither any consideration amount was paid nor possession was delivered. On 16.11.1988 the defendants made an attempt to enter into a portion of the suit house, but due to resistance of the plaintiff, they failed in their attempt. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

3. The defendants filed a written statement denying the assertions made in the plaint. According to them, the suit land was originally Gramakantha Paramboke. The Government of Orissa was the owner of the same. The father of the plaintiff, Kantha Nayak was in possession of the said land. After him, the plaintiff was in possession of the same. For legal necessity, he sold the said land to defendant no.1 for a consideration of Rs.2,400/- by means of an unregistered sale deed dated 12.4.1970. At the time of the sale, there was a small thatched house over the suit land. Possession was delivered to defendant no.1. They are in possession of the suit land since then. They have acquired title by way of adverse possession.

4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary, to substantiate their cases. The suit was dismissed. Unsuccessful plaintiff filed T.A.No.4 of 1990 before the learned Civil Judge (Sr.Division), Bhanjanagar, which was eventually dismissed. It is apt to state here that during pendency of this appeal, respondent no.2 died.

5. The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.1, 2 and 3 of the appeal memo. The same are:-

“(1) Whether in view of the admission of the defendants regarding the title of the plaintiff over the suit property and in view of the Record of Right in respect of the suit property which stands in the name of the plaintiff, the impugned finding that the plaintiff-appellant has no title to the suit property is illegal being an error of record.

(2) Whether in view of clear denial of execution of Ext.H and rejection of prayer for sending the document for examination of hand writing expert, findings of the learned courts below relying on said Ext.H are perverse ?

(3) Whether in view of mention in the R.O.R. Ext.1, that the suit property is not transferable and in view of the evidence on record that the plaintiff is in possession over the suit property having title over the same, impugned finding that the plaintiff cannot get any relief prayed by him is illegal and perverse ?”

6. Heard Mr.P.K.Das, learned Advocate on behalf of Mr.M.K.Mishra, learned Senior Advocate for the appellant and Mr.H.K.Behera, learned Advocate on behalf of Mr.S.D.Das, learned Senior Advocate for the respondents.

7. Mr.Das, learned Advocate for the appellant submitted that plaintiff is the owner of the suit land. He used to pay rent. The defendant no.1 created an unregistered sale deed in respect of the suit land. The same is tailor-made. He has no right, title and interest over the suit property. The R.O.R. has been published in the name of the plaintiff. The plaintiff filed an application to send the unregistered sale deed, Ext.H, to the handwriting expert. The same was rejected by the learned trial court. Learned trial court committed a manifest illegality in relying upon Ext.H.

8. Per contra, Mr.Behera, learned Advocate for the respon