Decided on November 29,1973

AHALYA DEVI Respondents


- (1.) PLAINTIFFS are the appellants. Defendant No. 1 is the wife of the defendant No. 2. Defendant No. 3 is the father of defendant No. 1. Defendant No. 4 is the Marfatdar of the deity-landlord from whom defendants 1 and 2 claim to have obtained a lease. Deceased defendant No. 5 transferred the disputed land to the plaintiffs by a registered sale deed Ext. 2 dated 5-7-1961 for Rs. 200/ -. She died during the pendency of the suit without leaving any heirs and has not been substituted. Plaintiff's case is that the disputed property belonged to P. Somalingam, the husband of deceased defendant No. 5. He was unheard of and was presumed to be dead. Plaintiffs base their title on Ext. 2. The suit was filed in 1965. The suit is for declaration of title and recovery of possession. Defendant No. 1 claims title to the disputed property on the strength of a registered deed of lease Exhibit A dated 73-1944 from defendant No. 4. Defendants 1 and 2 also claim title by adverse possession. Plaintiffs made out a case in the plaint that when defendant No. 5 and her husband decided to go away to Parlakhemundi they wanted somebody to look after their house. Defendant No. 3 was known to them. At his instance the first two defendants were appointed caretakers and accordingly an unregistered and unstamped agreement (Anumati Patra) was executed by P. Somalingam on 25-121943 in favour of defendants 1 and 2. Therein, defendants 1 and 2 were permitted to occupy the house and to pay all taxes and a clear prohibition was made that they would not commit any injury to the house or convert the land to their own purposes. Defendants 1 and 2 in their turn executed on the very same day a similar document admitting the title of P. Somalingam and his wife and agreeing to look after the house. In the written statement there was a denial of such a case. The trial Court decreed the plaintiffs' suit holding that their predecessor-in-interest had interest in the disputed property and they acquired valid title by Exhibit 2; the first two defendants were in possession of the disputed property by an amicable arrangement and that they constructed a pucca house in 1958 whereby they exercised a right in their own favour. The learned1 lower appellate Court agreed with the trial Court so far as plaintiffs' title is concerned and both the Courts rejected the defence case of acquisition of title on the strength of the lease. The lower appellate Court, however, held that the first two defendants acquired title by adverse possession by being in possession of the disputed land from 1943 to 1965 for more than the prescriptive period. On this finding, the suit was dismissed. It is against the judgment of the appellate Court that the plaintiffs have filed the second appeal.
(2.) BEFORE examining the infirmity in the judgment of the lower appellate court it would be appropriate to give a clear picture of the law in the light of which the case would be determined. Plaintiff's suit for recovery of possession is based on title. If plaintiffs' title is established, the onus is on defendants 1 and 2 to prove acquisition of title by adverse possession. The suit was filed subsequent to the new limitation Act, 1963 having come into force and Article 65 of that Act will apply in terms.
(3.) ARTICLE 65, so far as relevant, runs thus : description of suit. Period of Time from which limitation. period begins to run. 65. For possession of Twelve years. When the possession immovable property of the defendant or any in. tereat becomes adverse to therein based on title. the plaintiff. Chandra Sekhar Pati and Anr. vs. Ahalya Devi and Ors. (29. 11. 1973 -ORIHC) Page 3 of 4 ya Devi and Ors. (29. 11. 1973 -ORIHC) Page 3 of 4 the onus is, therefore, on defendants 1 and 2 to prove that the title of the plaintiffs was lost by acquisition of title by adverse possession on their behalf. The concurrent finding of the courts below that the plaintiffs have title is to be taken as to have been determined by this court conclusively and is not to be re-agitated in the lower appellate court after remand.;

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