The main legal point established in the judgment is the requirement of peaceful, open, and continuous possession to establish adverse possession, and the contradiction between claiming title and adverse possession.

JUDGMENT :

Dr.A.K.RATH, J.

These appeals are directed against a common judgment and decree passed by the learned 2nd A.D.J., Berhampur in Title Appeal No.38 of 1988 (T.A.No.3/86 GDC) & T.A.No.39 of 1988 (T.A.No.2/86 GDC), whereby and whereunder, the learned appellate court dismissed the appeals and confirmed the judgment and decree passed by the learned Subordinate Judge, Berhampur in T.S.No.43 of 1984 and T.S.No.42 of 1984 respectively.

2. This is a dispute between the father and sons. The plaintiff-appellant instituted T.S.No.43 of 1984 for declaration of title and certain ancillary relief. The plaintiff’s case was that on 27.2.1959, the suit house was jointly purchased by Radhakrushna Panigrahi and his father Raghunath Sabat, defendant no.1. Defendant no.1 was a benamidar. The plaintiff paid the money. The plaintiff requested his father to execute a nominal sale deed in his favour, but his father did not agree. His brother, defendant no.2, Arjun Sabat tried to get the sale deed in his favour.

3. Defendant no.1 filed a written statement pleading inter alia that in the year 1953, there was a partition between the father and his sons. He paid the consideration amount. He was the owner of the suit house. Transaction was not benami. The plaintiff had not paid any amount. On 8.5.1971, he sold the house to his son, defendant no.2. Defendant no.2 filed a written statement stating therein that his father was owner of the suit house. On 8.5.1971, his father sold the same to him. The plaintiff occupied a portion of the suit house with his permission. Thereafter, he did not vacate the same. T.S.No.42 of 1984 was instituted by Arjun against his brother, Kishore for recovery of possession. Pleadings in both the suits are same. Both the suits were tried analogously. The parties led evidence, oral and documentary to substantiate their case. On an anatomy of the pleadings and evidence on record, the learned trial court came to hold that Kishore did not purchase the suit house. Arjun was the rightful owner in possession of the suit house. Kishore was staying over the same with permission. Held so, it dismissed the suit. Assailing the said judgment and decree, the plaintiff filed two appeals i.e., T.A.No.3/86 & T.A.No.39 of 1988, before the learned District Judge, Berhampur, which were subsequently transferred to the court of the learned A.D.J., Berhampur and renumbered as Title Appeal No.38 of 1988 (T.A.No.3/86 GDC) & T.A.No.39 of 1988 (T.A.No.2/86 GDC). Both the appeals were eventually dismissed. It is apt to state here that during pendency of this appeal, the sole appellant died, whereafter his legal heirs have been substituted. Similarly, after death of respondent no.1, his legal heirs have been substituted.

4. Second Appeal No.26 of 1984 was admitted on 3.8.1989 on the substantial questions of law enumerated in ground nos.1 & 5 of the appeal memo. The same are :-

“1. If there is sufficient nucleolus for acquisition of joint family property and if a coparcener alleges that the properties are his self acquired properties, in such circumstances, whether onus would lie on the party to prove that the properties acquired by him is his self acquired property and the onus lies on him to prove that the property was not acquired from the joint family nucleous on the principle that the plaintiff must prove his case. In such view of the matter whether the plaintiff in T.S.No.42/84 prove his case and as such the impugned judgment and decree are illegal and liable to be set aside.

5. Whether judgment and decree passed by the learned courts below are bad in law on account of errors apparent in the face of record and whether the impugned judgments and decrees are vitiated on account of such errors apparent ?”

5. Second Appeal No.25 of 1989 was also admitted on the substantial questions of law enumerated as above. A Bench of this Court observed that both the appeals be heard analogously.

6. Heard Mr.Sidartha Mishra, learned Advocate on behalf of Mr.B.B.Ratho, lea