Akshaya Kumar Rath JUDGMENT
Dr. Akshaya Kumar Rath, J.
1. Defendant No. 2 is the appellant against a confirming judgment.
2. Plaintiff-respondent No. 3 instituted the suit for declaration of title, recovery of possession and permanent injunction. The case of the plaintiff was that his mother, defendant No. 4 purchased the suit land. She constructed a thatched house over the same. Her name was recorded in the Municipal record. She executed a gift deed in his favour on 9.1.1980 and delivered possession. Defendants 1 to 3, who are brother-in-law, sister and nephew of the plaintiff, stayed in a portion of the suit house. As defendant No. 1 claimed title over the same before the Settlement Authority, he asked them to vacate the suit house. With this factual scenario, he instituted the suit.
3. The defendants 1 to 3 filed written statement denying the assertions made in the plaint. Their case was that after death of husband of defendant No. 4, she sought the help of defendant No. 1. Defendant No. 1 purchased 100 dec. of suit land from Kartika Sethi, the brother of defendant No. 4 by means of a registered sale deed dated 1.3.1961. As defendant No. 1 was a member of the joint family, to avoid any future claim over the said land by his brothers, he purchased the same in the name of defendant No. 4. Rest of the suit lands had been purchased by defendant No. 1 from one Nilakantha Rath in the name of defendant No. 4 (mother-in-law of defendant No. 1). Their further case was that the plaintiff gained over defendant No. 4 and obtained the gift deed in respect of the suit land. They were in possession over the suit land for more than 12 years and, as such, perfected title by way of adverse possession. They had constructed a house and planted different trees over the suit land. The plaintiff was occupying a portion of the suit land with the permission of defendant No. 1. It is apt to state here that during pendency of this appeal, respondent No. 3 died, whereafter his legal heirs have been substituted.
4. On the inter se pleadings of the parties, the learned trial court framed six issues. The parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that the plaintiff had successfully established his right and title over the suit land. Defendant No. 1 had failed to prove that the suit land was purchased benami in the name of defendant No. 4. Suit was not barred by time. Defendant No. 1 had failed to establish his title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful defendants 1 to 3 filed appeal before the learned District Judge, Puri, which was eventually dismissed.
5. The Second Appeal was admitted on the substantial questions of law enumerated in ground Nos. 1 to 4 of the appeal memo. The same are:-
"1) For that in view of the evidence of the D.Ws. coupled with the documentary evidence such as Ext. E series (Voter list), Ext. D (electric card) Ext. G series (the rent receipts), whether the learned Courts below committed serious illegality in holding that the defendant No. 1 has failed to prove his title by way of adverse possession.
2) For that plaintiff (P.W. 4) having admitted in his evidence the possession of defendant No. 1 over the suit land the learned Courts below should have held that the defendant No. 1 has proved adverse possession over the suit land.
3) For that the defendant Nos. 1 to 3 having categorically pleaded adverse possession in their written statement whether the learned trial court was justified in not framing an issue in that regard and the learned lower appellate court whether went wrong in not remanding the matter to the lower Court for framing an issue.
4) For that the defendant No. 1 having remained in possession admittedly since the date of execution of Ext. C. Dt. 1.3.61, whether the learned courts below failed to notice that defendant No. 1 had already perfected his title........