BANA NAIK Vs. DINAMANI BEHERA

JUDGEMENT

(1.) This appeal has been preferred against the reversing judgment in a suit filed by the respondent, being T.S. No.16 of 1983, before the Munsif, Keonjhar. The plaintiff filed the said suit with a prayer to declare his right, title and interest over the plaint Schedule 'A', 'B' and 'C' properties and confirm his possession thereon, in the alternative, in the event the Court finds that he has been dispossessed in the meantime to pass a decree for recovery of possession through Court. A further prayer for permanent injunction was made to injunct the defendants from coming over the suit land and creating disturbance in the possession of the plaintiff. This Second Appeal has been preferred by the defendant nos. 2 and 3, who are concerned with Schedule 'C' land.

(2.) Mr. Mishra, learned counsel for the appellant submits that the appeal is not concerned with Schedule 'A' and 'B' lands. With regard to Schedule 'C' land, the plaintiff by way of amendment introduced a pleading in the plaint that the land under Schedule 'C' has been under uninterrupted possession of the plaintiff to the knowledge of the recorded tenant i.e. defendant no.2 and the plaintiff has acquired title thereon on the basis of adverse possession, in consideration of which a note of possession of the plaintiff has been recorded in the settlement records. In paragraph-8 of the plaint, while claiming to be the rightful owner of the Schedule 'A' and 'B' properties, it was pleaded inconsequentially that the plaintiff has acquired title over the Schedule 'C' property on the basis of adverse possession. The defendant nos. 2 and 3 filed a separate written statement denying all the allegations made in the plaint with regard to 'C' Schedule property and further specifically denying the allegation with regard to claim of the plaintiff to have perfected his title on the basis of adverse possession over the Schedule 'C' property. The trial Court amongst other issues framed a specific issue, being Issue no.5, to the effect "Has the plaintiff acquired right, title and possession over 'C' Schedule land by way of adverse possession ?". The trial Court on scrutinizing the oral and documentary evidence adduced before it, while declaring the title of the plaintiff in respect of 'A' and 'B' Schedule properties and confirming his possession over the same dealing with the claim of adverse possession in Issue no.5, answered the issue against the plaintiff. At this juncture, it may be mentioned that Schedule 'C' property consists of two plots, being plot no. 385 measuring Ac.0.15 decimals out of Ac.0.48 decimals and plot no.386 measuring Ac.0.10 decimals out of Ac.0.11 decimals. The trial Court while answering Issue no.5 discussing the meaning of adverse possession and recording that in Ext.8 plot no.385 constituting an area of Ac.0.48 decimals has been recorded in the name of Bana Naik and in the remarks column, forcible possession note of one Nilamani Behera, son of Kanhei Behera has been made and in respect of plot no.386 measuring an area Ac.0.11 decimals, forcible possession note has been made in the name of the plaintiff, finding that the ingredients to establish title on the basis of adverse possession are absent in the case, rejected the claim of the plaintiff over 'C' Schedule property. The plaintiff being aggrieved filed T.A. No.11 of 1986 before the learned District Judge, Keonjhar, who by judgment dated 02.01.1990 reversed the finding of the trial Court, dismissing the suit of the plaintiff in respect of 'C' Schedule property and came to the conclusion that the plaintiff has proved to have perfected his title over the said 'C' Schedule property by way of adverse possession. Hence, this Second Appeal at the instance of the defendant nos. 2 and 3.

(3.) The Second Appeal has been admitted on the substantial question of law which is as follows: