Decided on August 28,1973

Raghunath Sabut Appellant
Gangadhar Sahu And Anr. Respondents


S.K. Ray, J. - (1.) THE Plaintiff -Appellant filed his suit for declaration of title and recovery of possession of the suit land by evicting the Defendants therefrom. The suit land is 0.07 decimals in extent and appertains to plot No. 273 in holding No. 226 of village Birakishorepur. This plot was recorded as plot No. 307 in the latest settlement. His case is that he purchased this land from one Laxmi Bewa on 12 -12 -1944. This land adjoins to the east of the lands of the Defendants. It is alleged by the Plaintiff that the Defendants forcibly amalgamated it with their land on 23 -5 -1965. The suit land admittedly appertains to an estate and the Plaintiff is an intermediary in respect thereof. This estate has been vested in 1963 in the State of Orissa in pursuance of the general notification of vesting issued by the Government on 27 -4 -1963. Subsequent to the vesting the Plaintiff has got the rent schedule in his name. This schedule is Ex. 3 and bears the date 13 -11 -1967. It is said that this schedule was drawn up in his favour in Land Settlement Case No. 1102/66. He also produced certain rent receipts which are Exts 2 series appertaining to year 1964 -1965. These rent receipts bear the stamp "without prejudice".
(2.) THE original title of the Plaintiff is not denied by the Defendants. Their contention is that they have been in possession of this land for more than 30 years and accordingly, they acquired title to it by adverse possession. In proof of their case of possession they have proved a notice issued to their father on behalf of the Plaintiff for relinquishing possession of the suit land. This notice was proved as Ex. A dated 13 -7 -1951. Apart from this documentary evidence the Defendants have also adduced oral evidence in support of their case of possession. The trial Court held that the oral evidence of possession adduced by the parties are not satisfactory. Relying upon right schedule Ex. 3 and rent receipts Ex. 2 series he came to the conclusion that the Plaintiff was in possession of the suit land within 12 years of the suit, which was filed on 25 -81965. He also found that the Defendants have failed to establish the case of adverse possession.
(3.) THE lower appellate Court has, however, come to the conclusion disagreeing with the trial Court that the Defendants Appellants have successfully established their actual physical possession over the suit land since the year 1951 '. In reaching this conclusion he has relied upon Ex. A, the Lawyer 's notice issued on behalf of the Plaintiff to the father of Defendants on 13 -7 -1951 and the oral evidence of possession on record. He has discarded Ex. 3 on the ground that it is only a paper transaction and as such it has no relevancy so far as actual physical possession of the land is concerned. That apart, this Ex. 3 appears to have come into existence in 1967 about 2 years after the institution of the suit. Similarly, no reliance was placed on Ex. 2 series which are for the year 1964 -1965, but bear the stamp of "without prejudice". He has placed reliance upon p.w. 2 who in his cross -examination has stated that the suit land was amalgamated with the land of the Defendants in the year 1955 and they are growing betel thereon for the last 3 years. This apparently militates against the Plaintiff 's story of dispossession on 23 -5 -1965. Therefore, according to the lower appellate Court, the preponderance of probabilities is that the Defendants were in possession for mere than 12 years in their own right. This finding is unimpeachable in the Second Appeal.;

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