Title to immovable property cannot transfer through an invalid sale deed; possession based on such deed can lead to adverse possession under appropriate circumstances.

JUDGMENT :

SASHIKANTA MISHRA, J.

1. This is a plaintiffs’ appeal against a confirming judgment. The judgment dated 15.07.2006 followed by decree passed by learned District Judge, Phulbani in Title Appeal No. 2 of 2001 is impugned, whereby the judgment dated 18.12.2000 passed by learned Civil Judge (Sr. Division), Baliguda in Title Suit No.6 of 1993 followed by decree was confirmed.

2. For convenience, the parties are referred to as per their respective status before the Trial Court.

3. The case of the plaintiffs, briefly stated, is that the suit land under Schedule A of the plaint originally belonged to one Benu Nayak, the common ancestor. He had two sons, Daitari and Surendra. After their death, the plaintiffs possessed the suit land jointly. It was recorded in the name of Benu in 1923 settlement. However, in 1983 settlement, the suit plot was divided into two plots, i.e. 2038 and 2039. While Plot No.2038 was recorded in the name of plaintiff Nos. 3 to 7, that is the successors Surendra, Plot No. 2039 was recorded in the name of the defendant. The defendant initiated RMC No.10/1991 under Section 3(2) of Regulation-II of 1956 against plaintiff No.3 claiming that he had purchased suit Plot No.2039 on 29.09.1957 through an unregistered sale deal executed by Daitari Nayak for consideration of Rs.110/-. Since then, he is possessing the same. The plaintiffs claim that there had been no partition by metes and bounds between Daitari and Surendra. As such, the sale deed was void and never acted upon. The plaintiffs claim to be in continuous and peaceful possession. Since the defendant attempted to dispossess them on the strength of the ROR published in 1983, they filed the suit for declaration of right, title and interest, for confirmation of possession and for permanent injunction.

4. The defendant contested the suit by filing written statement. His case was that after partition between the sons of Benu Naik, Plot No. 2039 fell to the share of Daitari, who sold the same to him on 29.09.1957 through an unregistered sale deed. The suit land was recorded in his name in 1983 settlement, over which he constructed a house and has been possessing the same on payment of rent and holding tax etc. Since the plaintiff No.3 forcibly occupied a portion of the suit land in 1991, the defendant filed RMC Case No.10 of 1991, which is pending. The plaintiffs also forcibly constructed a compound wall over the suit land in 1993. The defendant has constructed three rooms over the suit land, which he has let out to different persons. He further claimed that having possessed the suit land from 29.09.1957 to the knowledge of the plaintiffs, he has acquired title by way of adverse possession.

5. Basing on the rival pleadings, the trial court framed the following issues for the determination.

“1. Is the suit maintainable?

2. Has the plaintiffs any cause of action to file the suit?

3. Is the suit barred by limitation?

4. Whether the suit is hit under section 80 of Civil Procedure Code?

5. Whether the suit property is the ancestral joint family property of the plaintiffs or the same has been partitioned and the suit land fell to the share of late Daitari Nayak who sold it to the defendant in 1957 followed by delivery of possession?

6. Whether the plaintiffs or the defendant are in possession of the suit land?

7. Whether the defendant acquired title by adverse possession or otherwise?

8. Whether the R.O.R. publi