JUDGMENT
P.K. Mohanty, J.
1. The plaintiff-respondent in the Courts below is the appellant in the present second appeal against the reversing judgment of the Learned Sub-ordinate Judge, Dhenkanal in Title Appeal No. 17/4 of 1983/84 allowing the appeal, setting aside the judgment and decree of the Learned Munsif, Dhenkanal decreeing the plaintiff’s suit declaring the right, title, interest and possession of the plaintiff over the suit land and directing the defendants to put the plaintiff in possession of the suit land.
2. The short facts bereft of unnecessary details are that the suit land was recorded in the name of the plaintiff’s father Adhikari Nayak @ Sahoo in the Record-of-Rights of 1923-24 described as homestead land, which was in possession of his father who was residing there having his residential houses and kitchen garden etc. After the death of his father Adhikari, the plaintiff is in possession of the suit land. The houses and kitchen garden of the defendants are situated on the northern side of the plaintiff’s plot and recorded in the name of Bholeswr Mahadev. On 17.8.1981 the defendants with a view to grabbing a portion of the plaintiff’s land, situated on the western side of his plot, cut the green fences as indicated in the sketch map and trespassed into a portion of the suit land and started digging foundation to erect a compound wall amalgamating the suit land with their own plot. The protest made by the plaintiff went in vain, for which he reported the matter at the police station and a Station Diary entry was made.
3. The defendants denied the claims and allegation made in the plaint inter alia claiming that the disputed land forms a part of Plot No. 46 under Khata No. 39 appertaining to an area of Ac.0.01 decimal and right from the time of the father of the defendants i.e., since 37 years, their father late Adhikari Pratap Singh and after him the defendants are in possession, exclusively continuously and openly without any interruption from any quarters to the knowledge of all concerned especially to the knowledge of the true owner since last 37 years. The title of the defendants over the suit land, according to them, has matured by prescription. It is also the defendant’s case that neither the father of the plaintiff nor the plaintiff himself possessed the disputed land at any point of time during the past 37 years; rather the plaintiff’s father came to know the existence of the disputed patch of land in the possession of the defendants during the current settlement for the first time and he has admitted such possession since 1945 giving his endorsement on the settlement proceeding on 1.1.1967 for which Plot No. 46 was bifurcated into two; one being Plot No. 137 and the other No. 138 in the possession of the defendants. It was claimed that their father had planted a mango tree, which was by then about 27 years old.
4. The Trial Court framed the following seven issues,
(i) Is the suit maintainable ?
(ii) Is the suit barred by limitation ?
(iii) Has the plaintiff any cause of action to bring the suit ?
(iv) Is the suit hit under Order-VII, Rule-3, CPC ?
(v) Have the defendants acquired title over the suit land by way of adverse possession ?
(vi) Is plaintiff’s claim hit by theory of estoppel ?
(vii) To what other relief is the plaintiff entitled ?
5. The title of plaintiff having been admitted, main issue was whether the defendants acquired the title over the suit land by way of adverse possession.
It appears from the finding of the Learned Trial Court that Defendant No. 1 as D.W. 1 stated in his evidence that the area of the plaintiff is 14 decimals out of which he (plaintiff) is in possession of 13 decimals and Defendant No. 1 is in possession of 1 decimal on its western side which he is possessing since 1945. The Learned Trial Court found that the defendants have not mentioned in their written statement that from Dola Purnima Day in Falguna of 1945 they are in possession of the suit land. Rather in the written statement, they took the specific stand that they are in possession of the suit land for last 37 years. D.W. 1 admitted that he does not know the date of their possession of the suit land. D.W. 1 admitted that the plaintiff claimed 1 decimal to be his and the 1 decimal land belonged to the father of the plaintiff but he is in possession forcibly. D.W. 1 further stated in his evidence that for the first time in 1964 the villagers came to know that he is in possession of the suit land. According to the Learned Trial Court, the evidence and pleadings of the defendants were in conflict and contrary to each other. D,W. 3 however, spoke of the possession of the defendants since Khanapuri operation. According to him, Khanapuri operation started in the year 1968. However, he admitted in cross-examination that he does not know the area, the length and breadth of the suit land. This witness further stated that the defendants did not tell him since when they are in possession of the suit land. Rather, according to this witness, at the time of Khanapuri, it was detected by the villagers that the land stands in the name of Adhikari Nayak, the father of the plaintiff. Admittedly, this witness did not have any land near the suit land for which the Learned Trial Judge drew a presumption that the statement of the witness is doubtful. The Trial Judge further found that the age of this witness was 39 years and, therefore, he could not effectively speak of an incident of 1968 when he was hardly 13 to 14 years old. Defendant No. 3 who was examined as D.W. 5 stated in his evidence that since 1945 they are in possession of the suit land. D.W. 5 was 40 years of age in 1983 and thus, was aged about 2 years in the year 1945 and, therefore, he could not have any knowledge, but the knowledge could have been obtained from his father. In the evidence, this witness has not stated that he obtained the information from his father. In cross-examination, this witness admitted that his father did not tell him from which date and month, he possessed the suit land. From the conflicting and contradictory statement made by this witness, the Trial Judge found that the witness is not speaking truth nor the oral statements made are in terms of the written statement. The Learned Trial Judge having found from the evidence of the defendant’s witnesses that the defendants have failed to prove the exact date from which the defendants are in possession of the property adversely, openly, continuously and as of right over a period of 12 years, held that the plea of adverse possession cannot be accepted. On the documentary evidence also, the Learned Trial Judge found no case of adverse possession in favour of the defendants. The title of the plaintiff having been admitted, the only way the defendants could succeed in acquiring title is by way of prescription and in absence of any proof of possession from any specific date, the Learned Trial Judge held that the defendants couldn’t acquire prescriptive title. On the basis of the pleadings and evidence led by the plaintiff, the Learned Trial Judge found that the defendants have no title over the suit land nor have they acquired any title by adverse possession. On such finding and finding on other issues, the Learned Trial Judge decreed the plaintiff’s suit and declared the right, title, interest and possession of the plaintiff.
6. The Learned Sub-ordinate Judge in the Title Appeal by a cryptic judgment without detailed discussion of the materials on record and reasons for differing from the findings recorded by the Learned Trial Judge, however, has allowed the appeal and dismissed the plaintiff’s suit. It appears that on consideration of Exts. A, B and C the Yadast, the Draft Khatian and the Settlement Amin’s Report respectively and the oral testimony, of the defendant’s witnesses, the Learned Lower Appellate Court found possession in favour of the defendants. The Learned Lower Appellate Court held that on the basis of possession of the defendants over the disputed 1 decimal of land to the knowledge of the plaintiff’s father for last 37 years, the defendants have acquired title by adverse possession. The judgment of the Learned Lower Appellate Court on the face of it shows non-application of mind and non-consideration of materials on the basis of which the Learned Trial Court decreed the plaintiff’s suit. Law is well settled that adverse possession must be adequate, in continuity, in publicity and in extent and a plea is required at least to show when the possession became adverse so that the starting point of limitation against the party affected can be found. There being no evidence as to the date and month when the possession became adverse, if at all, a long possession pure or simple does not necessarily make the possession adverse because of which a party can acquire prescriptive title as against the true owner.
7. The Apex Court in Ishwar Dass Jain (dead) through L.Rs. v. Sohan Lal (dead) by L.Rs., AIR 2000 SC 426 has laid down that normally in two situations, interference with finding of fact is permissible. Forest is when the material or relevant facts is not considered which, if considered, would have led to an opposite conclusion or where the finding of Court of fact is vitiated by non-consideration of relevant evidence or by essentially erroneous approach to the matter, the High Court is not precluded from recording the proper finding. The second situation is where a finding is arrived at by the Appellate Court by placing reliance on inadmissible evidence which, if it was omitted, an opposite conclusion was possible. In either of the aforesaid situations, substantial question of law can arise. It appears that the present second appeal was admitted on the following substantial question of law :
“Whether reasonable inference of adverse possession is possible on the materials available on record.”
8. In the case at hand, the documents considered by the Lower Appellate Court to record a finding in favour of the defendants to have acquired title by prescription is Ext. A an order-sheet of the period of the Yadast. True it is, the order-sheet is admissible in evidence but the contents of the order-sheet is relevant for the purpose of the findings. It is recited in the order-sheet that during the Khanapuri operation, Gangadhar Bhanja, Damburu Bhanja and Chaitanya Bhanja, sons of Adhikari Bhanjaj stated that they are in possession since 1945 and they also admit the title of the plaintiff. D.W. 1 who proved Ext. A in his deposition stated that he does not know English nor does he know whether the Amin has signed in the report. The witness stated that he is not aware whether Adhikari was present. The Amin was examined as a witness. The other document Ext. B is a Draft Khatian. Undisputedly, the Draft Khatian has presumptive value that on the date of Draft Khatian, the person in whose name the Khatian stands was in possession. The Draft Khatian is of the year 1974. So, the presumption of possession can at best be from 24.7.1974 in which event by 1983 when the suit was filed, the defendants could not have acquired title by prescription. Ext. C is the Amin’s report dated 5.7.1974. D.W. 1 in his statement in Para 1 stated that since 1945 Falguna Dola Purnima he is in possession of the land and put a fence on three sides except the northern side which he amalgamated with his own land. He also stated that the father of the plaintiff was-there. He objected to the same but this defendant told him to do whatever he likes. This witness has admitted that no one was present when he put the fence and that Adhikari knew that the land did not belong to him when he put the fence. He also stated that his father planted a mango tree, but in his deposition, he stated that in 1985 only one mango tree was planted. In the Record-of-Rights of 1923-24 there is mention that a mango tree was existing over the suit land. The Learned Lower Appellate Court has reversed the finding recorded and arrived at by the Learned Trial Court without appreciating the materials and giving reasons as to why he differed from the finding recorded by the learned trial judge. In absence of proof of the exact date of first entry of the defendants to the suit land and the extent of adverse possession, the temporary acts cannot be construed as creating a title by adverse possession. The plaintiff has proved title and his title has been admitted by the defendants, in such situation, the only way the defendants can acquire title is by proving adverse possession. From the evidence both oral and documentary, the Trial Court has rightly recorded a finding that in absence of the date of entry to the suit land and hostile animus to the knowledge of true owner openly, continuously and peacefully, the question of acquiring adverse possession does not arise.
9. In such view of the matter, I find that the Learned lower Appellate Court has misdirected him in reversing the finding recorded by the Learned Trial Judge without considering the materials on record, even without giving reasons for such findings. Rather from the materials on record, I find that the defendants have signally failed to prove adverse possession to acquire title by prescription. Accordingly, I set aside the judgment dated 11.7.1986 of the Lower Appellate Court in Title Appeal No. 17/4 of 1983-84 and confirm the findings recorded by the Learned Trial Court in his judgment dated 8.4.1983 in Title Suit No. 20 of 1981 and decree the plaintiff’s suit.
The Second Appeal is accordingly allowed. However, there shall be no order as to costs of the Second Appeal.