PANDA KANOJIA Vs. SANKAR BAGHEL

JUDGEMENT

(1.) THIS appeal has been filed against a reversing judgment in a suit filed by the respondents for declaration of right, title and interest. The appeal was admitted on the following substantial question of law : - "Whether the lower appellate court has acted contrary to law by decreeing the suit filed by the plaintiffs on the finding that the plaintiffs have perfected their title over the disputed property by way of adverse possession even though no such case was pleaded by the plaintiff in the plaint and the plaintiff based his claim of title on an unregistered sale deed which was not accepted by either of the court below ?

(2.) MR . Mohanty, learned counsel for the appellant submits that the respondents as plaintiffs have never pleaded in the plaint that they have perfected their title over the disputed property by way of adverse possession except stating in paragraph - 8 of the plaint that the plaintiffs are entitled to declaration of their title over the suit land on the basis of a sale, alternatively, if the sale is held to be invalid for any infirmity whatsoever, by way of uninterrupted open possession over the suit land on the strength of such invalid sale since more than four decades, they have perfected their title by adverse possession. According to Mr. Mohanty, these pleadings cannot be construed to be specific pleadings claiming declaration of title by way of adverse possession over the disputed property. The defendant -appellant denied the plaint allegations by specific assertions.

(3.) THE learned lower appellate court confirmed the findings of the learned trial court with regard to the alleged sale deed executed on a plain paper, which was also not registered, i.e., Ext.1. The learned lower appellate court also disbelieved the endorsement made in the remarks column of the ROR with regard to the possession of the father of the plaintiffs over the suit property and, as such, in effect, disbelieved the case of the plaintiffs that they are in possession over the disputed property.