LAWS(ORI)-1998-9-21

BRAJA KISHORE SWAIN Vs. DAMBARU DHAR SWAIN

Decided On September 09, 1998
BRAJA KISHORE SWAIN Appellant
V/S
DAMBARU DHAR SWAIN Respondents

JUDGEMENT

(1.) This appeal is against the reversing judgment of the lower appellate court. The trial court dismissed the plaintiff's suit for declaration of right, title and interest claimed on the basis of adverse possession The lower appellate court reversed this finding holding that the plaintiff successfully proved title by adverse possession. The only substantial question of law formulated for consideration by this court is whether the lower appellate court committed gross error in accepting the case of adverse possession claimed by the plaintiff on the basis of the admission of the defendants in the previous sessions trial.

(2.) The plaintiff and the defendants are admittedly co-sharers in respect of plot Nos. 1337 and 1341. It is the admitted case of the parties that disputed plot No. 1338 belongs to Mayadhar Dhal whose sons are defendants 4 to 6 and they are in no way related to the family of the plaintiff and the other defendants. It is also the admitted case of the parties that plot No. 1338 situates on the adjacent western side of plot Nos. 1337 and 1341. There was dispute over the possession of plot Nos. 1337 and 1341 and because of such dispute, parties were involved in a murder case. While it is the case of the plaintiff that there was an amicable settlement between the parties in the year 1961 and after such settlement he purchased a portion of plot No. 1337 from his other co-sharers by registered sale deed in the year 1961. By that time an old thatched house which was standing over plot No. 1337 also covered a portion of plot No. 1338 on its north-western portion and since the year of purchase i.e. 1961 the plaintiff and his other brothers, defendants 7 to 9 possessed the land over plot No. 1338 along with plot No. 1337 and, therefore, they prescribed the title by adverse possession. The case of the contesting defendants 1 and 2 is that the murder case arose when the question of thatching the roof of the house over plot Nos. 1337 and 1341. In other words, according to their case, the house that stood over plot No. 1338 exclusively belonged to Mayadhar Dhal and after him, the said plot has been in possession of his sons, defendants 4 and 5 and there was no house which covered both plot Nos. 1337 and 1338. It is their further case that, in the year 1972 this disputed portion with house was sold by one of the sons of Mayadhar Dhal to defendant No. 2 Bhagaban Dhal and neither the plaintiff nor his brothers at any time purchased the land with the house nor at any time had possessed the same.

(3.) The trial cdurt dismissed the suit holding that the plaintiff failed to prove acquisition of title by adverse possession by any cogent evidence. It also gave a reason that since there was a scramble for possession over the land and the house over plot Nos. 1337 and 1341 admittedly amongst the co-sharers, in the absence of a case of ouster the plaintiff failed to prove acquisition of title by adverse possession. The lower appellate court, on the other hand, held that the possession of the plaintiff was admitted by the defendants in their evidence in the sessions trial. Those depositions have been marked as Exts. 11, 12 and 13.