SARAT CHANDRA NAYAK Vs. DAMODAR PATEL

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree passed by the learned Additional District Judge, Sambalpur in T.A. No. 8/22 of 1996- 97 allowing the said appeal in part and modifying the judgment and decree of learned Civil Judge (Senior Division), Kuchinda in title Suit No. 39 of 1990. The appellant as plaintiff filed the aforesaid suit for declaration of his right, title and interest over the Schedule 'A' land (in short, 'the suit land'), recovery of possession of that land and permanent injunction against the defendants, with an alternative prayer for recovery of possession of Schedule 'B' land and compensation of Rs. 6,000/- towards cost of the boundary wall constructed on three sides of the suit land.

(2.) THE case of the plaintiff in brief was that more than 35 years ago he took the suit land from the defendant No. 2 and in exchange gave him his land in Schedule 'B' and put a boundary wall around the suit land and Plot No. 423 on which he had his rice hauler and house and thereafter used the suit land as thrashing floor and bari. He alleged that after some time defendant Nos. 1 and 2 created disturbance in his peaceful possession over the suit land and in order to restore peace he transferred a portion of his bari land in favour of defendant No. 2 through a registered sale-deed without any consideration. But even after such negotiatory gesture defendant No. 2 executed a false sale deed in favour of Defendant No. 4 on 26.10.1989 fakely transferring Ac. 0.12 decimals of land out of the suit land for which he had to file the suit with the afore-mentioned reliefs. Plaintiff specifically pleaded that by virtue of continuous uninterrupted and open possession he has acquired title over the suit land by way of adverse possession.

(3.) LEARNED trial Court framed as many as 12 issues and on consideration of the evidence led by the parties came to the conclusion that there was exchange of land between the plaintiff and defendant No. 2 about 20 to 25 years back through an oral transaction and plaintiff was in possession of the suit land along with the plot No. 423, that defendant Nos. 1 and 2 forcibly took possession of the suit land and sold 12 decimals out of it to defendant No. 4 and defendant No. 4 is in possession of that land at present, that the plaintiff has not perfected his title over the suit land by way of adverse possession. He accordingly, dismissed the claim of the plaintiff, so far as declaration of right, title over the suit land and recovery of possession of the same is concerned, but decreed the alternative prayer relating to recovery of possession of Schedule 'B' land from defendant Nos. 1 and 2. The prayer for compensation in lieu of the boundary wall was also rejected. The plaintiff carried appeal. In the said appeal the appellant confined his contention to the plea of adverse possession over the suit land i.e. plot No. 423/369 only. Learned first appellate Court on reappraisal of the evidence came to the conclusion that the possession of the plaintiff over the suit land was permissive in nature and therefore ruled that despite possession for more than 20 years the plaintiff-appellant had not derived title over the same by way of adverse possession. The said Court, however, ruled that plaintiff is entitled to recovery of possession of Schedule 'B' land from defendant Nos. 1 and 2 and defendant No. 2 is liable to pay compensation of Rs. 6000/- towards the boundary wall constructed by the plaintiff over the suit land. The finding of the first appellate Court on the issue of adverse possession is now under challenge in the present appeal. So, the following substantial question of law is formulated to be decided in this appeal. (i) Whether the finding of the learned first appellate Court that the possession of the suit land by the plaintiff was permissive in nature, is legally correct particularly when the Courts below concurrently held that the plaintiff was in possession of the suit land for more than 20 years basing on a transaction of exchange ?