Decided on March 09,1973



- (1.) THIS is a defendant's second appeal from the confirming decision of the lower appellate court. This appeal relates to a suit filed by the plaintiff for declaration of title confirmation of possession and permanent injunction restraining the defendant from interfering with his possession. The suit land is A. O. 60 decimals comprised in Survey No. 41/1 an village Pitatala in Chikiti Taluk. This land was a part of Paromboke, appertaining to estate of Chikiti. The plaintiff's case is that this land was in possession and enjoyment of one Sadi Appalswami who, after possessing the same for 35 years, sold it to the plaintiff's father under a registered sale deed, dated 21-7-48 for a consideration of Rs. 200/ -. Since after his purchase, his father possessed the land and after his father, the plaintiff possessed the same till the date of the suit on 1-6-53, Chikiti estate vested in the State under the provisions of the Orissa Estates Abolition Act. Thereafter, in November, 1967, action was taken under Section 8 of Orissa Prevention of Land encroachment Act, which is said to be the cause of action for the present suit, which was filed on 3-4-68.
(2.) THE plaintiff based his case on two planes, one was acquisition of title by purchase under the registered sale deed, dated 21-7-48 and the other was, in the alternative, acquisition of title by adverse possession. The defendant claimed the suit land to be Government land and denied the plaintiff's acquisition of title by both modes.
(3.) BOTH the courts below have negatived the title of the plaintiff on the basis of the sale deed. Ext. 1. The only question that arises for consideration is whether the plaintiff acquired title by adverse possession. In this case, since adverse possession is alleged to have commenced long prior to the commencement of limitation Act 36 of 1963, the title of the State would not be extinguished before 1971 (see Sections 27 and 30 of the new Limitation Act) and that assuming the concurrent finding of the Courts below that the plaintiff's vendor was in possession for 35 years before he sold the suit property to the plaintiff is correct, tacking that 35 years of possession of Appalswamy to the plaintiff's possession, the total period of adverse possession by 3-4-68 when the suit was filed did not exceed 55 years. The Courts below have declared acquisition of title by adverse possession despite the fact that the total period of adverse possession did not exceed 55 years and that the State's title had not been extinguished by the date of institution of the suit, on the basis of the doctrine of presumption enunciated by the Madras High court in case of Venkatarama Iyer v. Secy. of State for India in Council, (1910)ILR 33 Mad 362. Mr. B. B. Rath for the respondent also relies on that principle for dismissal of this appeal.;

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