BHAIGA PRADHAN Vs. ISWAR ADHIKARI

JUDGEMENT

(1.) The appellants who were respectively defendants 1 and 2 in the suit have preferred this appeal against the confirming judgment of the Additional District Judge, Canjam -Boudh decreeing the plaintiff's suit so far as item No. 2 of the suit scheduled properties are concerned. The suit was instituted by Iswar Adhikari who having died has been substituted by respondent Nos. 1/a to 1/i. Appellant No. 2 has been deleted from being a party by order No. 16 dated 17 -4 -1985 passed in Misc. Case No. 44/85. The respondent No. 1 who was the plaintiff in the trial Court instituted the suit for two Items of properties for relief that the judgment of the Executive Magistrate, Chatrapur, Under Section 145, Cr. P. C. in M C No. 65/78 in respect of item No. 1 of the suit property is not binding upon him and for recovery of possession so far as both item Nos. 1 and 2 of the suit properties are concerned. The suit was dismissed with regard to item No. 1 of the suit property. So far as item No. 2 of the suit property is concerned, the plaintiff's case is that S. No. 47/3 was Banjar land in the ex Estate of Khalikote and that on 3 -7 -1950 he got a Banjar Patta in respect of that property. i.e.. for AO. 80 cents of land and was in possession of the same. After abolition of the Estate he has also paid 'Taram Assessment' which is the penalty levied in' encroachment cases. Subsequently a 145 Cr. P. C. proceeding was started against item No. 1 of the suit property to which he was not a party but however the proceeding ended in favour of defendants 1 and 2 in pursuance of which; those defendants dispossessed the plaintiff not only from item No. 1 of the property but also from item No. 2 of the properties in 1971 The defendants 1 and 2 who contested the suit jointly contended so far as item No. 2 of the suit property is concerned that they have encroached upon No. 61 cents of land out of the Banjar land and were assessed with Taram assessment. Their case is that the plaintiff never possessed the land. After stating the contentions of counsel and other findings which are not necessary, His Lordship observed: Mr. Mohanty next contended that the suit of the plaintiff was liable to be dismissed since he came with a case of title and possession in respect of the suit property, but however his title having not been proved, the decree passed by the Courts below only on the basis of the prior possession of fhe plaintiff is misconceived and that the suit is liable to have been dismissed As stated above, it was found by the Courts below that Ext. 2, the patta granted by the ex -jamindar of Khalikote in respect of item No. 2 of the property was a genuine document and that the patta was also followed by payment of rest and plaintiff was paying Taram assessment upto 1963 and that the receipts covered a period of more than 12 years. The learned lower appellate Court thus held that claim to item No. 2 of the suit property was really a competition between two trespassers and hence in such event a prior trespasser is bound to succeed. Accordingly, he dismissed the appeal of the defendants 1 and 2 and decreed the suit in respect of that item of the property.

(2.) The submission made by Mr. Mohanty that a suit originally brought on the. basis of possession based on title is bound to fail if title is not proved, is wholly untenable. There is no authority for such a proposition. Reliance was placed on AIR 1977 S. C. 1123 (Smt. Raj Rani and Anr. v. Kailash Chand and another), 1978 (46) CLT 287 (Budhi Mahal and Ors. v. Gangadhar Das and others) and 1974 (I) CWR 46 (Gobinda Pradhan and Ors. v. Chaturbhuja Parida and others). On a perusal of these decisions, the least that can be said is that they have no application to the case, AIR 1977 S. C. 1123 was a case where the scope of Arts, 64 and 65 of the Limitation Act vis -a -vis Arts. 142 and 144 of the Old Limitation Act were discussed and the change in the law was indicated. 1976(46) CLT 287 is a decision to the same effect and in no way supports the proposition advanced by Mr. Mohanty. The decision merely explains that under Art. 65 of the New Limitation Act all that the plaintiff is required to prove is only his title and that if the defendant wants to defeat the right of the plaintiff he has to establish that he has perfected a prescriptive title by adverse possession for a period of 12 years. 1974 (1) CWR 46 cited by Mr. Mohanty is an authority to the same effect and has no bearing on the question raised by him. It is well -established that if a suit is instituted on the basis of both title and possession and while title fails the plaintiff is found to be in possession, then the suit can be decreed on the basis of his possessory title only against all others except the true owner. The matter was conclusively decided in AIR 1970 S.C. 846 ( Somnath Barman v. Dr. S. P. Raju and another) in which the facts were that the plaintiff brought the suit on the basis of purchase of the suit land under two sale deeds and claimed that he is in possession of the land after the purchase. The cause of action for the suit was the trespass by the second defendant on the suit property, taking over possession of the same and selling It to the first defendant. The defendants denied the plaintiff's title to the suit property as also his possession and on the contrary it was claimed that the second defendant had acquired title to the property by adverse possession and had sold the land to the first defendant Both the trial Court and the High Court found that the plaintiff had not been able to prove his title to the suit property but however the High Court held, disagreeing with the trial Court, that the plaintiff was in possession of the suit property from the date of his purchase in about the year 1980 till 1945 when the second defendant trespassed upon the same and took over possession. The High Court thus rejected the plea of adverse possession of the defendants. Before the Supreme Court it was contended that since the suit was for possession on the basis of title and the plaintiff failed to prove her title, the suit was to be dismissed as it was not a suit Under Section 9(Old) of the Specific Relief Act. Negativing the contention the Supreme Court held that the prior possession of the plaintiff is a good title against all but the true owner and the defendants are mere trespassers and hence cannot defeat the plaintiff's lawful possession. Possessory title is a good title as against every body else other than the lawful owner. A similar question arose in AIR 1979 Cal. 1 (Biswanath Bandapsdhyay v. Smt. Purnamani Dassi and another) Which was also decided on the basis of the decision of the Supreme Court in AIR 1970 S. C. 846. In the same context AIR 1968 S. C. 1165 ( Nair Service Society Ltd. v. K. C. Alexander and others) AIR 1971 Ori. 135 (Panchabati Ramachandra v. Satyabhama Devi and others) and AIR 1972 Pat. 241 (Mt. Koki and Ors. v. Chetwa Chamar and others) may also be usefully referred to. It is thus indisputable that the suit of the plaintiff for item No. 2 of the suit property was perfectly maintainable. In the result the appeal has no merit and it is accordingly dismissed with costs.