R.K. Pattanaik, J
1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the instance of the appellant assailing the impugned judgment and decree dated 14th March, 2007 promulgated in R.F.A. No.5 of 2005 by the learned Additional District Judge, Jagatsinghpur, whereby, the decision of the learned Civil Judge (Junior Division), Jagatsinghpur in T.S. No.94 of 2002 was confirmed on the grounds inter alia that the findings of the courts below are illegal, arbitrary and not tenable in law and hence, liable to be set aside.
2. The respondents as plaintiffs instituted the suit in T.S. No.94 of 2002 seeking a relief of permanent injunction against the appellant vis-à-vis the suit schedule land claiming title over the same. The appellant as defendant entered in appearance and filed W.S. and though admitted the title of the original owner but claimed possession over and in respect of the suit schedule land since 1932 which is from the time of his grandfather and from then to be in possession continuously with the full knowledge of the respondents. In other words, the appellant disputed the possession of the land in question by the respondents, however, advanced no counter claim. The learned Civil Judge (Junior Division), Jagatsinghpur framed major issues as to if the respondents are entitled for a decree of injunction in absence of declaration of title and possession and whether the appellant to be in possession of the suit schedule land from 1932 and discussed the evidence adduced by both the sides and finally, decreed the suit restraining the appellant permanently from interfering with the possession by the respondents. The Trial Court disbelieved the evidence of the appellant with regard to possession and decreed the suit on contest but without cost. Being unsuccessful, the appellant approached the learned Lower Appellate Court in R.F.A. No. 05 of 2005 but the same was dismissed by impugned judgment and decree dated 14th March, 2007.
3. Heard Mr. Bose, learned counsel for the appellant and Mr. Pradhan-2, learned counsel for the respondents.
4. While admitting the appeal, this Court by order dated 31st July, 2008 formulated the following substantial questions of law, which are stated herein below:
(i) In view of Ext. A, how can there be a decree of injunction in favour of the respondents?
(ii)Whether the suit framed without a prayer for recovery of possession is maintainable?
5. Mr. Bose, learned counsel for the appellant would submit that the learned courts below could have considered the aspect of possession claimed by the appellant while reaching at a conclusion to decree the suit in favour of the respondents, however, fairly being admitted that no counter claim was advanced. Mr. Pradhan-2, learned counsel for the respondents on the other hand submits that the possession so claimed by the appellant could not be established by any evidence as there were contradictions noticed by the Trial Court and that apart, the same was rejected due to confirmation of title and possession in favour of the respondents in Mutation Case No. 2148 of 1999 and finally upheld in Mutation Appeal No.16 of 2001, so therefore, the learned courts below did not commit any error or illegality and rightly, decreed the suit and hence, the impugned judgment and decree in R.F.A. No. 5 of 2005 is in accordance with law.
6. Before the Lower Appellate Court, the respondents adduced additional evidence under Order XLI Rule 27 C.P.C. which is with respect to a certified copy of the order in T.S. No.362 of 2001, whereby, the suit instituted was dismissed for default and the same was at the instance of the appellant for declaration of right, title and possession vis-à-vis the suit schedule land as against the wife of the vendor of the respondents and as such, was admitted as Ext.12, the fact which was not disputed by the appellant. It does mean that the title over the land in question was challenged by the appellant earlier in T.S. No.362 of 2001 but the same had an abrupt end for having been dismissed for default and not restored thereafter. In so far as the respondents are concerned, they said to have purchased the suit schedule land from the husband of the original owner, namely, Ramarani Mishra through a registered sale deed dated 16th September, 1998. The vendor of the respondents had acquired title over the suit schedule land after successive transfers which was originally belonged to one Kapila Mohapatra. It is made to appear that after the death of the said owner, his daughter-in-law being in exclusive possession, sold the suit land to the vendor of the respondents. In fact, the husband of the vendor of the respondents in the capacity of a power of attorney holder executed the sale deed vide RSD No.1655 dated 16th September, 1998.
7. In so far as the title of the respondents over the suit schedule land is concerned, the same was faintly challenged by the appellant on the ground that the execution of the sale deed is not properly proved which did not find favour with, rather, claimed possession and acquisition of prescriptive title by being in possession from 1932 and onwards since the time of his grandfather. According to the Court, in absence of any challenge to the title from the side of the appellant on justifiable ground, there was no reason for the respondents to seek any relief as to declaration of title. Rather, the Court finds that the challenge is confined to possession of the respondents over the suit schedule land. In the instant case, the possession by the appellant was claimed and for having acquired title by prescriptive means but without a counter claim. In so far as Ext.A is concerned, the learned Trial Court noticed that the appellant was not to be in possession of the suit schedule land. The mutation proceeding favoured the respondents and also in Mutation Appeal No.16 of 2001. The oral evidence received from the side of the appellant was not worthy of acceptance and therefore, the same was not relied on by the learned Trial Court so also the Lower Appellate Court, which found the evidence from the side of the respondents as credible. In so far as adverse possession is concerned, the law is well settled that it has to be specifically pleaded. In absence of any counter claim, it is to be held that there was no foundation laid by the appellant seeking any such relief of acquisition of adverse title vis-à-vis the suit schedule land. From the evidence received, the learned courts below were rather convinced for the appellant having his homestead in the suit village contrary to the claim that it stands over the land in question. The entire evidence of the appellant was found not desirable and thus, was rejected by both the courts below. So therefore, when the title lies with the respondents and they have been held as the owners in respect of the suit schedule land which is possessed by them duly proved by evidence and in view of the rejection of the plea of the appellant, the inevitable conclusion is that the learned courts below did not err on facts and law and rightly decreed the suit. In other words, the findings and decision of the learned Lower Appellate Court confirming the decree in T.S. No. 94 of 2002 suffers from no legal infirmity.
8. Hence, it is ordered.
9. In the result, the appeal stands dismissed.
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