JUDGMENT :

A.K.Rath, J.

This is a plaintiff’s appeal against confirming judgment. The suit was for declaration of right, title and interest, declaration that the sale deed no.1678 of 1980 as void, confirmation of possession and certain other ancillary reliefs.

2. Case of the plaintiff was that one Sriram Gardia was the owner of the suit land. He sold the suit property to the plaintiff by means of an unregistered sale deed dated 5.12.1997 for a consideration of Rs.1000/. Possession was delivered to him. Thereafter, he sold the suit land and other lands to the plaintiff by means of a registered sale deed dated 20.4.1990 for a valid consideration. Plaintiff made an application before the Addl. Tahasildar to mutate the land. The Addl. Tahasildar rejected the application on the ground that the suit land had been mutated in favour of defendant no.1. Plaintiff came to know that Sriram Gardia had executed a sale deed in respect of the suit land in favour of defendant no.1. Though notice was issued to the defendants, but then they chose not to contest the case and as such, were set ex parte. To substantiate the case, the plaintiff had examined one witness and on his behalf, six documents had been exhibited. Learned trial court came to hold that prior to execution of the sale deed vide Ext.3, the vendor had already executed a sale deed in favour of defendant no.1 on 9.12.1980. The plaintiff was not in possession of the suit land. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned District Judge, Sundargarh in Title Appeal No.24 of 1998, which was eventually dismissed.

3. The second appeal was admitted on the following substantial question of law;

“Whether the courts below have acted contrary to law in not decreeing the suit under Order 8 Rule 5 of the CPC as the defendant did not contest the suit and the oral and documentary evidence adduced by the plaintiff remained unchallenged.”

4. Heard Mr. Umesh Chandra Patnaik along with Mr. Somnath Patnaik, learned counsel for the appellant and Mr. Ramakanta Mohanty, learned Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for the respondent.

5. Mr. Patnaik, learned counsel for the appellant submitted that the defendants were set ex parte. In such a contingency, the courts below ought to have decreed the suit under Order 8 Rule 5 CPC applying the doctrine of non-traverse. He further contended that the evidence on record reveals that Sriram Gardia, vendor of the plaintiff, had executed an unregistered sale deed on 5.12.1997 and delivered possession of the suit land to the plaintiff. Thereafter, he executed the registered sale deed in favour of the plaintiff. During pendency of the appeal, defendant no.1 sold a part of the suit plot to one Rajiv Naik in the year 2012 and Dase Oram in the year 2011 respectively. The plaintiff filed Civil Suit No.51 of 2013 in the court of the learned Civil Judge (Senior Division), Sundargarh praying for declaration of title and permanent injunction. Learned trial court came to hold that the plaintiff is in possession of the suit plot. He further contended that the plaintiff is in possession of the suit land peacefully, continuously and to the hostile animus of the defendant no.1 for more than the statutory period and as such, perfected title by way of adverse possession. Learned courts below did not delve deep into the matter. On untenable and unsupportable grounds learned appellate court negatived the claim of the plaintiff. He placed reliance on the decisions in the case of Shri Bhagwan Sharma v. Smt. Bani Ghosh, AIR 1993 SC 398, Bondar Singh and others v. Nihal Singh and others, AIR 2003 SC 1905 and Mathew Elenjical and another v. The Nagpur Roman Catholic Diocesan Corpn. (P) Ltd., AIR 1978 MP 39.

6. Per contra Mr. Mohanty, learned Senior Advocate for the respondent submitted that Sriram Gardia sold the suit land to the defendant no.1 by means of a registered sale deed dated 9.12.1980 and delivered