The main legal point established in the judgment is the requirement for peaceful, open, continuous, and hostile possession to establish adverse possession, as well as the contradictory nature of claiming title to the property and adverse possession over the same property.

JUDGMENT :

A.K.Rath, J.

This is a defendants’ appeal against a confirming judgment.

2. Plaintiff instituted the suit for declaration of right, title and interest, confirmation of possession and in the alternative for delivery of possession. The case of the plaintiff was that her husband Banamali Pati was the owner of Sabik Khata No.26, Sabik Plot Nos.540/1828, Ac.0.4 dec. and 1883/1890 Ac.0.8 dec. During Hal settlement, area of Sabik Plot No.540/1828 was enhanced from Ac.0.4 dec. to Ac.0.6 dec. It was carved into Khata No.108, Plot No.766 and Khata No.147, Plot No.767 Ac.0.3 dec. She and her husband were in possession of Hal Plot Nos.766 and 767 peacefully, continuously and uninterruptedly. They used to pay rent. After the death of her husband, she is in possession of the land. In 1987, Narimangal Samiti House adjacent to the said plots collapsed. The defendants cleared up the same and forcibly occupied the plots despite her protests. On the requisition of the plaintiff, the Amin measured the land. The plaintiff came to know that plot no.767 Ac.0.3 dec. has been wrongly recorded in the name of defendant no.1 in Hal settlement. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. They did not claim title over plot no.766. As regards plot no.767, they averred that Banamali Pati transferred plot no.767 in favour of defendant no.1. ROR was issued in his name. The plaintiff has no right, title and possession over the suit land. Defendant no.1 is in possession of the land peacefully and uninterruptedly prior to the death of Banamali Pati.

4. On the inter se pleadings of the parties, learned trial court framed eight issues. Parties led evidence, both oral and documentary to substantiate their case. Learned trial judge decreed the suit. Unsuccessful defendants filed Title Appeal No.1 of 1994 before the learned Civil Judge (Senior Division), Bonai, which was eventually dismissed.

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

“Whether the courts below were justified in decreeing the plaintiff’s suit without examining the alternative claim of Defendant No.1 of acquisition of title to the suit land by continuous and uninterrupted possession as of right since the year 1952 for a period exceeding 12 years ?

6. Heard Mr. L.K. Moharana, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr. Buddhiram Das, learned counsel on behalf of Mr. A.K. Mishra, learned counsel for the respondent.

7. Learned counsel for the appellants submitted that the plea of the defendants is that they have perfected title by way of adverse possession. No issue has been framed and no finding has been rendered by the courts below. Elaborating his submission, he submitted that there was an oral exchange of land between Brundaban Pati, husband of the plaintiff and defendant no.1. Placing reliance on the amin report vide Ext. B and rent receipts, he submitted that the defendants are in possession of the suit land since 1952 peacefully, continuously and to the hostile animus of the plaintiffs.

8. Learned counsel for the respondents submitted that the defendants have failed to substantiate the plea of oral exchange. The same has been rightly negatived by the courts below. Defendants cannot blow hot and cold at the same breadth. They took the plea of oral exchange, but alternatively claimed title by way of adverse possession. The plea is mutually inconsistent.

9. The plea of oral exchange of land and adverse possession are mutually destructive. On the basis of the oral evidence defendants assert title. A person claiming assertive title on the basis of oral exchange cannot take prevaricating stand.

10. Adverse possession is not a pure question of law but a blended one of fact and law. In Bangalore Development Authority vs. N. Jayamma, (2017) 13 SCC 159, the apex Court held