JUDGMENT
A.K. Parichha, J.
1. This appeal is directed against the Judgment and decree passed by Learned 2nd Additional District Judge, Cuttack in Title Appeal No. 2 of 1984 confirming the Judgment and decree passed by Learned Additional Sub-Judge, Cuttack in Title Suit No. 145 of 1981.
2. One Krushna Chandra Swain, the predecessor-in-interest of the present Respondent filed the above said title suit for declaration of his right, title, interest and possession over the suit land described in Schedule ‘C of the plaint and to permanently restrain the Defendant Rai Charan Swain from interfering with his possession over that land and in the alternative to allow transfer of the suit property in favour of the Plaintiff as per the provision of Section 4 of the Partition Act.
3. The Plaintiff’s case in essence was that the suit schedule ‘B’ property originally belonged to Madhu and Madha. In 1945 Madhu died issueless and property devolved on Plaintiff-Krushna, who was the only son of Madha, but schedule ‘C property, which was part of Schedule ‘B’ property, was wrongly recorded in the name of Defendant in the settlement papers on the basis of a gift deed dated 13.6.1933 allegedly executed by Madhu in favour of Bata and a sale deed dated 5.2.1963, allegedly executed by Radha in favour of the Defendant. The Plaintiff, who was working at Kharaghpur learnt about this wrong recording from the Revenue Inspector and filed the suit. It was specifically pleaded that the alleged gift deed dated 13.6.1933 by Madhu in favour of Bata and the registered sale deed dated 5.2.1963 by Radha in favour of the Defendant are fabricated documents and are not binding on him.
4. The Defendant’s case was that Madhu during his life time gifted Schedule ‘C property to Bata by gift deed dated 13.6.1933 and Radha, who was the widow of Sanei and mother of Bata executed a registered sale deed in favour of the Defendant on 5.2.1963 and therefore, the Defendant became the owner of the suit schedule ‘C land and as ‘an owner he possessed the homestead and mutation was also allowed in his name. As an alterative plea Defendant claimed title over the suit schedule ‘C property by adverse possession.
5. The Plaintiff examined two witnesses and proved documents which were marked as Exts. 1, 1/a, 2 and 3. Defendant examined four witnesses and proved documents, which were marked as Exts. A to H. On consideration of the evidences, Learned Trial Court decreed the suit with the findings that Schedule ‘B’ property was never partitioned between Madhu and Madha, and accordingly, Schedule ‘B’ property, which includes Schedule ‘C property was undivided joint Hindu Family homestead of Madhu and Plaintiff, Madhu had no power to gift away his half share in such joint family property without the consent of the Plaintiff and so, the alleged gift, vide Ext. H, was a void transaction, Radha Bewa was the widow of Ananda Swain and not the widow of Sanei Swain and Bata was not born out of any wed-lock of Sanei and Radha, Defendant is not a member of family of Madhu and Madha, the possession of Defendant over the suit property, even if believed, does not amount to adverse possession; the mutation of the suit iand in favour of the Defendant is of no avail as notice of the said proceeding was Not served on the Plaintiff. The Defendant appealed against that Judgment and decree. Learned first Appellate Court on consideration of the submission and the evidence concurred with the findings of the Trial Court and dismissed the appeal. Hence this second appeal.
6. At the time of admission, the following substantial question of law was formulated for consideration:
Whether the finding of fact is reasonable and prudent on the basis of evidence available on record?
7. Mr. Maharana, Learned Counsel for the Appellant basically challenged the findings of the Courts below on the issue of gift of Schedule ‘C land by Madhu in favour of Bata and the issue of adverse possession. According to him, the conclusion arrived at by the Courts below on these aspects is perverse and contrary to the materials on record. According to him, Madhu and Madha were already separate and Madhu had the legal right of gifting away the Schedule ‘C property, which was his exclusive property after partition. His further contention is that even if the gift deed is invalid, the Defendant having possessed the suit property for more than twelve years on the basis of an invalid transaction, derived title over the same by adverse possession. To support his contention, Mr. Maharana relied on the case of Collector of Bombay v. Municipal Corporation of the City of Bombay and Ors. .
8. Mr. S.C. Samantaray, Learned Counsel appearing for the Respondent, on the other hand, submitted that in view of the concurrent finding recorded by the Courts below, there is no scope for this Court of second appeal to re-appraise the evidence and judge the correctness of the findings given on factual issues. Quoting the findings of the Courts below, he argued that the original gift deed not having been produced and foundation not having been laid under Section 65 of the Evidence Act that the primary document is lost, Ext. H was inadmissible. He further argued that burden of proving separation between Madhu and Madha was on the Defendant, but no credible evidence was there in this regard and therefore, the Courts below were justified in holding that the suit property was joint family property and was not giftable by one of the co-parceners without the consent of other co-parceners. He also argued that there was no evidence of Radha marrying Sanei and Bata taking birth out of the said wed-lock and so, Radha had no right over the Schedule “C property and any sale deed by her in respect of that property was not binding. Regarding the issue of adverse possession, he submitted that there was evidence and also admission of D.W. 1 that Radha , Ananda, Sanei and Bata were living in the house of Banamali Moharana after selling away the house of Ananda in 1916/ 1917 and so, there was no occasion for Radha to occupy the suit house as the successor of late Bata. He further argued that the Defendant put-forth no evidence to show as to when his alleged possession became adverse to the interest of the Plaintiff and therefore, even if his possession over the suit property is believed, yet such possession would not amount to adverse possession. To support his contention, Mr. Samantaray relied on the cases of Ranglal Ram v. Makhanlal and Ors. Vol.15 (1949) C.L.T. 30; Shri Sisu Tandia v. Dukhi Dei and Ors. 1975 (1) C.W.R.116; Ramkrishna Deo v. Kamalanath Roy, died after him Smt. Jaganmohini alias K. Jaganmohini and Ors. Vol. 39 (1973) C.L.T. 554 and Dhaneswar Mahanty and Ors. v. Sitanath Das and Ors. Vol.48 (1979) C.L.T. 10.
9. At the out set, it is necessary to indicate that a Court of second appeal is not a Court of facts and is not to re-analyze the evidence on record to judge the correctness of the concurrent findings recorded by the Courts below on factual issues. However, a second Appellate Court can interfere with the findings on factual issues where the Courts below ignored the material evidence and acted on no evidence, drew wrong inference from proved facts by applying law erroneously or wrongly cast the burden of proof. This view is supported by the observation of the Apex Court in the cases of Hero Vinoth (minor) v. Seshammal and Ramlal and Anr. v. Phagua and Ors. . In view of this legal position, it is to be seen whether the findings of the Courts below on the issues of validity of the gift and sale transaction and adverse possession are based on no evidence or wrong inferences from proved facts by applying law erroneously or the result of wrong casting of burden of proof.
10. Admittedly, the suit Schedule ‘B’ property was the property of both Madhu and Madha. It is also not disputed that Madhu died issueless; whereas Madha left Plaintiff as his sole legal heir. Articles 258 and 260 of Mulla Hindu Law clearly say that a coparcener has no power to dispose of the coparcenary interest by gift without the consent of other coparcener unless, he is the sole surviving coparcener. The plea of the Defendant was that Madhu and Madha had partitioned and were separate and therefore, Madhu had the right to gift away his share of property under the gift deed, Ext. H. A Hindu coparcenary is presumed to be in joint and the person claiming separation has to prove such separation/partition. There was no specific evidence produced by the Defendant regarding partition of the joint family property noted in Schedule ‘B’. There was also admission of D.W. 1 in his statement that Madhu and Dhobani continued to live in the suit house till their death. D.Ws. 2 and 3, who were brought to prove the partition did not state anything about the partition by metes and bounds between Madhu and Madha. The P.Ws. denied the partition. There was a statement by P.W. 1 that Madhu and Madha were living in separate rooms in the same dwelling house, but living in separate rooms in the same dwelling house or having separate kitchen does not pre-suppose partition by metes and bounds. Further more, Ext. 2, the settlement record, shows that the suit land stood recorded jointly in the name of Madhu and Madha. With such evidence at hand, Learned Courts below did not commit any error in observing that the Defendant failed to discharge his burden of proving partition between Madhu and Madha. Once, the suit property was joint coparcenery property of Madhu and Madha, one of the coparceners could not gift away his undivided interest without the consent of the other coparcener. It is also worthwhile to note that the original gift deed was not produced, but a certified copy of the document, Ext.H was produced. No credible evidence was led that the original document is lost or is in such custody that it is unprocurable. Section 65 of the Evidence Act bars admission of any secondary evidence without foundation being laid about non-availability of the primary evidence. Further more, as per Section 120 of the Transfer of Property Act, one of the essential requirements of a valid gift is that the transferee must accept the transfer made in his favour by way of gift during his life time. Production of the original gift deed from the custody of the Appellant-Defendant would have led to such an inference of acceptance of such gift. The statements of P.W. 2 and D.W. 2 revealed that Bata lived and stayed in the house of Banamali Maharana till his death. If there would have been acceptance of gift of Schedule ‘C property, then Bata would have come and occupied the house standing on the Schedule ‘C land. In any case, the suit property was copercenery property and was not giftable by one of the coparceners. Therefore, Learned Courts below were legally justified in saying that Ext.H, the document dated 27.5.1933 was a void document, which did not convey any right or title to the donee.
11. The case of the Defendant was that Madhu having no issue gifted the suit property in favour of Bata Swain, whom he treated as his son and that Radha Bewa, who was married to Ananda remarried Sanei the brother of late Ananda after the death of Ananda and out of the second wed-lock Bata was born to her and so, on the death of Bata, Radha succeeded to the estate of late Bata and became the owner of Schedule ‘C property and as an owner she sold the property to the Defendant on 5.2.1963 for legal necessity and delivered possession of the same and since that date, the Defendant is in open and continuous possession of that property. There was no positive evidence to show that after the death of Ananda, Radha remarried Sanei and that Bata was her son through Sanei. On the contrary, it was stated by the P.Ws that Radha after the death of Ananda resided at Jhanjir Mangala in her parental house and exercised her franchise at Jhanjir Mangala. D.W. 1 claimed that Radha was residing in the suit house and was enrolled as a voter of Chauliaganj area. But no document or voter list was produced to show that Radha lived at Chauliaganj and was a voter of that area. Further more, in the sale deed, Ext. B, Radha described herself as widow of Ananda and not as widow of Sanei. Such being the evidence, Learned Courts below cannot be blamed for concluding that Radha Bewa was not the widow of Sanei and that Bata was not her son through Sanei.
12. Relying on the preliminary records of right Exts. C, C/1, D, D/1, the mutation document Ext.E and rent receipt-Ext. F series, the Defendant claimed that he is in possession of the suit property since 5.2.1963 continuously, openly and therefore, even if the sale deed and gift deed, Exts. B & H are found invalid, yet he has clear title over the suit property by way of adverse possession. As has been said in the case of Ranglal Ram (supra), mere occupation of immoveable property for a long period cannot create title by adverse possession in favour of occupier Similarly, a person holding lawful title over a land is not adversely dispossessed by another person, who only pays tax or land revenue as such payment is not such unequivocal act as would be sufficient to attribute hostile intention. Dispossession in the eye of law involves some amount of fraud or force and implies the coming in of a person and his driving out another from his possession. In essence, there would be discontinuance only when one knew that another was asserting his own title and yet omitted to enforce the remedies open to him, or the former voluntarily abandons possession. In the cases of Shri Sisu Tandia (supra), Dhaneswar Mahanty (supra) as well as Ramkrishna Deo (supra), it has been clarified that once the possession taken with permission, it could never become adverse unless hostile animus is expressed at any particular time to the knowledge of the owner and that it is essential for the person claiming adverse possession to indicate in the pleadings and evidence when such hostile animus was exhibited. No doubt, the Defendant produced the parcha slips and the mutation document, but the same related to holding No. 301 of Ward No. 26 of Cuttack Municipality. This property belongs to one Krushna Ch. Behera and not to Radha or Bata or Madhu or late Ananda. The rent receipts do not create any title or inference of adverse possession as has been said in the case of Ranglal Ram (Supra). The mutation document also does not help in establishing adverse possession as the Plaintiff was never noticed in that proceeding. There was no evidence on record to show when the Defendant asserted his adverse title or claim over the suit property to the knowledge of the Plaintiff. There was also no pleading as to when sugh adverse animus was exhibited. In such situation, the ratio of the case of Collector of Bombay (supra) will not help the Defendant in any manner as the facts and circumstances of that case are totally different from the present one.
13. The aforesaid analysis reveal that the Courts below have no ignored the material evidence and have not recorded finding on no evidence nor they have drawn wrong inference from any proved fact by applying law erroneously. The said Courts have also not wrongly cast any burden of proof on the Defendant. Therefore, the substantial question of law is answered against the Appellant. Consequently, the appeal is found to be without any merit and is dismissed on contest, but without any cost.