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1979 Supreme(Ori) 119
IN THE HIGH COURT OF ORISSA
S. Acharya, J.
RUPA MERLI AND OTHERS - APPELLANT
Versus
KRUPA PADHAN AND OTHERS - RESPONDENT
Second Appeal No. 95 of 1976
Decided On : 25-07-1979
R.C. Patnaik and P.K. Mirra, for the Appellant; S.S. Misra, H.B. Swain, B.P. Tripathy and P.C. Kar and S.S. Swain, A.S., for the Respondent
A man does not acquire adverse possession over immovable properties merely because a deed of conveyance in respect thereof is executed in his favour and the said deed turns out to be an invalid one.
Headnote:
ADVERSE POSSESSION - INVALID DEED OF GIFT - SECTION 28, LIMITATION ACT, 1963 - A man does not acquire adverse possession over immovable properties merely because a deed of conveyance in respect thereof is executed in his favour and the said deed turns out to be an invalid one. The man, who seeks to assert adverse possession on the basis of an invalid deed of conveyance, must prove that he acquired exclusive possession of the property under or in consequence of the said deed, and that he continued in possession of the said property from that time in the manner in which adverse possession is acquired.
Fact of the Case:
Plaintiffs claimed title to the suit lands based on a plain paper deed of gift executed by Ghana Padhan in favour of Asharam, the husband of Ghana's daughter Bedi. The Defendant, Ghana's son, denied the execution of the gift deed and claimed that he was in possession of the suit lands all along.
Finding of the Court:
The trial court found that the gift deed did not confer any title on the Plaintiffs but that they acquired title by adverse possession from 1950 onwards. The appellate court reversed the trial court's decision, finding that Asharam was not in exclusive possession of the suit lands and that the Plaintiffs failed to prove acquisition of title by adverse possession.
Issues: Whether the Plaintiffs acquired title to the suit lands by adverse possession.
Ratio Decidendi: The court held that Asharam's possession of the suit lands was not under the invalid gift deed but was under Ghana, either jointly with him or with his permission and/or consent. Therefore, Asharam's possession was not overt and/or hostile against Ghana, and it did not become so merely because an invalid gift deed was executed in his favour. Moreover, the Plaintiffs failed to establish their exclusive and continuous possession over the suit lands for the prescribed period.
Final Decision: The court dismissed the Plaintiffs' appeal, holding that the appellate court's decision was correct.
JUDGMENT :
S. Acharya, J. - The Plaintiffs have preferred this appeal against the reversing decision of the District Judge in Title Appeal No. 22 of 1972.
2. Plaintiffs 1 to 4 are the sons of Bedi, the deceased daughter of Ghana Padhan, and Plaintiff No. 5 is the son of Plaintiff No. 2. Krupa Padhan (the Defendant) is the son of Ghana Padhan. The Plaintiffs filed the suit for declaration of title and recovery of possession of the suit lands which admittedly belonged to Ghana Padhan. According to the Plaintiffs, Ghana by about 1916, fell out with the Gountia of the village. So in August, 1918 he executed a plain paper deed of gift in respect of the suit lands in favour of Asharam, the husband of Bedi (daughter of Ghana) and left the village and went to Boudh. Since the execution of the said deed Asharam and after his death the Plaintiffs remained in possession of the suit lands. In 1951 the Defendant came to the village and from that time he started various proceedings in respect of the suit lands. In 1966 the Defendant initiated a proceeding u/s 145, Code of Criminal Procedure and that proceeding, and another proceeding u/s 145, Code of Criminal Procedure initiated later, terminated in favour of the Defendant in 1967. So the Plaintiffs instituted this suit.
3. The Defendant in his written statement denied the execution of the gift deed and challenged, the same as a sham transaction. According to him, he continued in possession of the suit lands all along, and Asharam, being the son-in-law of Ghana, was merely helping Ghana in cultivating the suit lands during Ghana's life time. Asharam's surreptitious efforts to get the lands mutated in his name during the temporary absence of Ghana and Krupa from the village proved futile. After the death of Ghana, the Defendant for all Intents and purposes remained in possession of the suit lands, but the Plaintiffs at times created disturbance in his possession.
4. The trial Court inter alia arrived at the finding that the gift deed executed by Ghana did not confer any title on the Plaintiffs but the Plaintiffs by possessing the suit lands from 1950 onwards acquired title to the same by adverse possession. On that finding the Plaintiffs' suit was decreed.
5. The appellate Court on a reappraisal of the evidence on record has arrived at the finding that Asharam was not in exclusive possession of the suit lands but was in possession of the same jointly with the Defendant or with his help or permission, and that the Plaintiffs have signally failed to prove acquisition of title to the suit lands by adverse possession.
6. The finding of the appellate Court that the Plaintiffs have nut perfected their title to the suit lands by adverse possession is based purely on consideration and assessment of the oral and documentary evidence on record. In arriving at that finding the Court has taken into consideration the candid admission of Asharam in Ext. D, of the year 1936, that after the departure of Ghana from the village he (Asharam) was cultivating Ghana's lands with Krupa (Defendant) jointly, and he (Asharam) prayed that the name of Ghana he recorded In respect of the suit lands in the settlement records, and those lands were recorded accordingly. From that it is evident that the possession of Asharam of the suit lands even after Ghana left the village was merely permissive.
From that document (Ext. D) it also transpires that he was jointly possessing the said lands with Ghana, indicating thereby that Ghana was at time's coming to the village to look after the lands. That falsifies the Plaintiffs' case that after the execution of plain paper gift deed Asharam exclusively possessed the suit lands. Ext. G shows that in the year 1952 Asharam tried to the suit lands mutated in his name, but as the Defendant opposed the same he did not press his said petition. Ext. 6 indicate's that the Defendant had complained before the Revenue authorities that Asharam and his successors-in-interest were creating disturbance i
