Possession derived from an invalid lease cannot mature to a claim of title through adverse possession if it is deemed permissive in nature.

JUDGMENT :

D. Dash, J.

The Appellant, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree 02.04.2002 and 08.04.2002 respectively passed by the learned Additional District Judge, FTC No.2, Bhubaneswar in T.A. No.79 of 1997 (6/01).

By the same, the Appeal filed by the Appellant (Plaintiff) under section 96 of the Code in challenging the judgment and decree dated 23.10.1997 and 06.11.1997 respectively passed by the learned Civil Judge, Junior Division, Bhubaneswar in T.S. No.181 of 1993, has been dismissed.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. The Plaintiff’s case is that the Defendant has leased out the suit land in favour of one Upendranath Das on 02.07.1947. Said Upendranath remained in possession of the said land, which is the subject matter of the suit till 01.05.1970. He then alienated the suit property measuring Ac.0.216 decimals in favour of the Plaintiff by registered sale deed dated 01.05.1970. The Plaintiff, after purchasing the suit land, got the same mutated in his name and is continuing to possess the same by paying the rent. It is stated that he has constructed a house over it and has been paying the holding to Bhubaneswar Municipality Corporation for the said house.

Alternatively, it is stated that even considering the lease and the sale deed as invalid in law; the Plaintiff, having remained in possession of the property in question for over the statutory period which too has been recognized in the record of right finally published on 21.03.1989 prepared erroneously in the name of the Defendant, but with a note of illegal possession of the Plaintiff under illegal purchase, the Plaintiff has acquired title over the suit land by way of adverse possession.

4. The Defendant, in his written statement, having raised the technical pleas as to the maintainability of the suit, lack of cause of action, suit being barred by limitation and undervalued etc., has also pleaded that the suit is barred by the provision of section 39 of the Orissa Estate Abolition Act and section 69 of the Orissa Hindu Religious Endowment Act. It is asserted that no such lease was ever granted to that Upendranath and the sale of the suit land said to have been made by Upendranath in favour of the Plaintiff is wholly impermissible in the eye of law. It is stated that the documents like rent receipts etc. have been created by the Plaintiff for the purpose and those are also not genuine. It is pleaded that the Record of Right in respect of the suit land has been correctly prepared by the Settlement Authority.

5. On the above rival pleading, the Trial Court has framed as many as six issues. Answering Issue No.1, which is crucial one as to the competing claim of the title over the suit land by the Plaintiff and the Defendant, upon examination of evidence and their evaluation, the answer has been rendered against the Plaintiff, which has practically led to the dismissal of the suit.

The unsuccessful Plaintiff, having carried the First Appeal, has again been unsuccessful. Hence, the Second Appeal against the findings and decisions of the Courts below that the Plaintiff has no right, title and interest over the suit land and is not entitled to the reliefs and claimed.

6. The present Appeal has been admitted to answer the following substantial questions of law:-

“i. Under the given facts and circumstances whether legally a case of adverse possession as raised by the plaintiff-appellant is available in his favour.”

7. Mr.S.P.Mishra, learned Senior Counsel for the