BANAMALI DALBEHURA Vs. SRIMATI RATNAMANI DEI AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal against the judgment dated 2 -8 -48 of Sri D.N. Das, Addl. Dist. Judge of Cuttack, reversing the judgment of the trial court arising out of a suit brought by the Plaintiff in ejectment on the fact that Plaintiff purchased the superior rights from Defendants 2 to 5 and from Defendant No. 6 in the year 1945 by virtue of two registered sale -deeds; that Defendant No. 1 prior to the year 1932 was in possession of the disputed land only by permission of the Plaintiff and he having refused to vacate the land and remove the structures thereon put by Defendant No. 1 and present suit in ejectment has been brought.

(2.) DEFENDANT No. 1, in contesting the suit, puts forth the defence that he has permanent tenancy rights in respect of the land by virtue of a lease dated 5 -11 -82, but prior to that he was in permissive possession.

(3.) MR . Dasgupta, appearing on behalf of the present Appellant, contends that the plea of adverse possession taken by Defendant No. 1 for acquisition of permanent tenancy rights cannot stand in view of the position that the initial possession of the Defendant is admittedly permissive. We find, there is some force in this contention, because on the position of law once possession is found to be permissive, the party in possession, in order to take advantage of adverse possession for the purpose of maturing his title, has got to show when exactly and in what circumstance the permissive possession terminated and the possession became adverse; and that the adverse possession must be to the knowledge of the real owner. In the present case, judge from this point of view, we find that there is no definite evidence on the point that the adverse possession was asserted by Defendant No. 1 and the permissive possession had terminated 12 years prior to the institution of the suit. Furthermore there is no finding of the lower appellate Court that in fact the possession was adverse to the knowledge of the present Plaintiff, or his predecessor beyond 12 years of the suit on the termination of the permissive possession as we find initial permissive possession is admitted by the defence and found by the trial Court and not reversed in appeal. The disputed land is situate in Cuttack and Defendants 2 to 6 admittedly belong to a distant place. The learned lower appellate Court has committed an illegality in having completely ignored the position that the initial possession was permissive. The trial Court, on a consideration of oral and documentary evidence, had come to the finding that in fact the Defendant had not been able to prove a continuous possession of the house standing on the land for more than 12 years. The lower appellate Court has reversed the finding merely relying upon the permission granted by the Municipality (Ext. A) for the purpose of construction of a house in the year 1932 by Defendant No. 1. The permission for construction is no definite evidence as to when exactly the construction was made or started. But that apart, I am of the view that even if Defendants No. 1 started construction more than 12 years before the suit that cannot be taken to be the starting point of adverse possession inasmuch as here is nothing to indicate that it was to the knowledge to the Plaintiff, and further more he might have constructed with the risk of removing it when called upon. The construction has not been proved to be of a substantiated nature. In this view of the matter therefore, the plea of adverse possession taken by Defendant No. 1 fails.