JUDGMENT
L. Mohapatra, J.
1. Defendants are the appellants before this Court against a confirming judgment.
2. Case of the plaintiffs-respondents is that one Artabandhu Naik was the owner of the disputed plot No. 807 under Khata No. 35. The plaintiffs-respondents purchased the suit property under a registered sale-deed from the said Artabandhu Naik. After the sale-deed was executed, possession was delivered in favour of the plaintiffs-respondents. In the year 1963 the intermediary estate vested in the State Government under the provisions of the Estate Abolition Act. Plaintiffs-respondents being the owner in possession of the suit property, filed a claim vide O.E.A. Case No. 8140/1603 of 1963-64. In the said proceeding the suit property was settled with the plaintiffs-respondents by the O.E.A. collector and fair rent was fixed. Since then the plaintiffs-respondents are paying rent to the Government. During the Hal settlement operation the property has already been recorded in their favour in the draft record-of-rights. Further case of the plaintiffs-respondents is that while in possession, the suit property was given on lease to one Shyam Bihari Prasad for a period of 4 years and 9 months on monthly rent at the rate of Rs. 80/- under a registered lease deed dated 8.4.1968. The said lessee while in possession of the suit property constructed three rooms thereon. The period of lease expired in July, 1977 and the lessee vacated the premises. Thereafter the plaintiffs-respondents took possession of the land as well as the three rooms constructed by the lessee and kept the same under lock and key. Taking advantage of such situation the defendants-appellants forcibly broke open the lock and trespassed into the suit property on 30.7.1979. Though the plaintiffs-respondents asked the defendants-appellants to vacate the land as well as the rooms, they refused to do so on 1.9.1981 which has led to filing of the suit for declaration of right, title and interest as well as for recovery of possession.
Defendants-appellants except defendant No. 2 filed written statement challenging the maintainability of the suit on the ground of limitation apart from merits. According to the defendants-appellants they are the legal heirs of one Bharat Bhoi which was in possession of the suit plot No. 807. It is also the case of the defendants-appellants that a portion of the suit plot had been given on rent to one Shyam Bihari Prasad on a monthly rent of Rs. 100/- for the purpose of manufacturing liquor. After the said Shyam Bihari Prasad vacated the land, the defendants came into possession thereof. It is the further case of the defendants-appellants that in order to grab the property, the plaintiffs-respondents have been filing cases and being unsuccessful have filed the present suit. It is also the case of the defendants-appellants that the defendant No. 1 has filed OS. No. 23/1970-1 against the plaintiffs which has given rise to filing of Second Appeal No. 257 of 2000. The aforesaid Second Appeal which is connected to this appeal shall be dealt with separately.
3. On the basis of the pleadings of the parties, trial Court framed as many as five issues. Issue Nos. 3 and 4 are as to whether the plaintiffs-respondents have any right over the suit property and as to whether the defendants-appellants are trespassers as alleged by the plaintiffs. Answering the aforesaid two issues, trial Court held that both the plaintiffs and defendants have no title over the suit property and therefore the only question to be decided is who has better title. While answering the aforesaid two issues, the trial Court further held that from 1966 till 1979 the plaintiffs-respondents were in possession of the suit property and had perfected title by way of adverse possession and therefore are entitled to recovery of possession from the defendants-appellant.
Trial Court while answering the Issue No. 2 held that under Section 9 of the Specific Relief Act the suit is maintainable for recovery of possession. With the above findings, the suit having been decreed in favour of the plaintiffs, the defendants-appellants preferred appeal before the learned 1st Additional District Judge, Puri vide Title Appeal No. 11/66 of 1997/87. The suit filed by the defendant No. 1 was also dismissed and therefore he preferred appeal vide Title Appeal No. 3/ 53 of 1986/84. Both the appeals were heard together by the learned 1st Additional District Judge, Puri and were disposed in a common judgment dismissing both appeals.
A preliminary objection was raised by the learned Counsel Sri B.H. Mohanty appearing for the appellants in both the appeals with regard to clubbing of the appeals by the lower appellate Court and therefore both the appeals were heard separately and are being dealt with separately.
4. The lower appellate Court found that the plaintiffs-respondents acquired fresh title because of settlement of fair and equitable rent in claim case. It further found that the genealogy given in the written statement by the defendants-appellants has not been proved and in absence of heirs of Bharat the suit property vested and the same having been settled in favour of the plaintiffs-respondents, possession of the plaintiffs-respondents over the suit property is substantially proved by the oral and documentary evidence. On the above findings, the appeal was dismissed.
5. This appeal has been admitted on Ground No. ‘M’ as admitted by the learned Counsel for the both parties, whereas the order-sheet shows that the appeal was admitted on Ground No. F at page 12 to 13 of the appeal memo in S.A. No. 230/2000. Ground No. F appears at page 10 of the appeal memo and it is therefore evident that this appeal is admitted on Ground No. M. The said ground is quoted below:
Failing title the Court below have taken resort to Section 9 of the Specific Relief Act and have decreed the plaintiffs’ suit for eviction. According to the plaintiffs’ own case forcible dispossession took place on 30.7.1979. The suit was filed on 7.9.1981. The period of limitation for a suit under Section 9 of the Specific Relief Act is six months. In view of this if the Courts below are justified in not dismissing the suit on the ground of limitation.
6. Shri B.H. Mohanty, learned Counsel appearing for the defendants-appellants in relation to the above ground submitted that the suit had been filed for declaration of right, title and for recovery of possession. Trial Court specifically found that both the parties failed to establish title over the suit property and proceeded to decide the suit on the basis of adverse possession. According to Sri Mohanty, learned Counsel appearing for the defendants-appellants, it was not the case of the plaintiffs that they perfected title by way of adverse possession and therefore such a finding of the trial Court is liable to be set aside. Apart from the above, it was contended that Section 6 of the Specific Relief Act which corresponds to Section 9 of the Old Act provides that suit has to be brought within six months from the date of its dispossession. Admittedly, the plaintiffs were dispossessed on 30.7.1979 and the suit was filed in the year 1981 and therefore it was grossly barred by time. Shri B.D. Mishra, learned Counsel appearing for the plaintiffs-respondents, on the other hand, submitted that the question as to whether the suit is barred by limitation or not is a finding of fact and both the Courts below having held that the suit was not barred by limitation, there is hardly any scope in the Second Appeal to interfere with such a concurrent finding of fact. Apart from the above, learned Counsel Sri Mishra appearing for the plaintiffs-respondents submitted that otherwise also the suit is not barred by limitation.
7. Keeping in mind the submissions made by the learned Counsel for both parties in relation to the ground on which the appeal has been admitted, I feel it necessary to discuss about the findings of both the Courts below. As stated earlier the trial Court framed five issues on the basis of the pleadings of the parties and issue Nos. 3 and 4 relate to the question as to whether the plaintiffs-respondents have any right and title over the suit property and as to whether the defendants-appellants are trespasser as alleged by the plaintiffs-respondents. While answering the said two issues the trial Court held that both the parties failed to prove their respective title over the suit property and therefore proceeded to decide who has better title. So far as the question of title is concerned, the lower appellate Court decided the issue in favour of the plaintiffs-respondents. The said finding is based on settlement of land under the provisions of Estate Abolition Act vide Ext. 4. Lower appellate Court further held that the action by the plaintiffs-respondents is for ejectment of a trespasser and relying long prior possession the lower appellate Court held that the suit is maintainable.
8. The ground on which the Second Appeal had been admitted is as to whether the suit was barred by limitation or not. In para-4 of the written statement it is pleaded that the suit is barred by limitation. However, trial Court did not frame any such issue specifically and only one of the issues was as to whether the suit is maintainable or not, but dealt with the question of limitation. The trial Court while answering Issue No. 2 with regard to maintainability of the suit was of the view that possession is a good title against all but the true owner. After vesting even if it is accepted that the true owner is the State, rent was accepted from the plaintiffs-respondents acknowledging him as a tenant. The trial Court further held that under Section 9 of the Old Act which correspondents to Section 6 of the present Specific Relief Act, 1963, prior possession of the plaintiffs is sufficient title notwithstanding that the suit is brought more than six months after dispossession. In this connection, reliance was placed by the trial Court in the case of Somanath v. Dr. S.P. Raju and Anr. . The lower appellate Court, however, on analysis of evidence held that the plot No. 807 does not find place in the sale certificate. The plaintiffs acquired fresh title on the settlement of fair and equitable rent under a claim case vide Ext. 4 and the plaintiffs having found to be in possession of the property prior to dispossession, the suit is maintainable and accordingly prayer for recovery of possession was allowed.
Shri B.H. Mohanty, learned Counsel appearing for the appellants submitted that the suit had been filed for declaration of right, title and recovery of possession. The plaintiffs admitted to have been dispossessed on 30.7.1979 and the suit was filed in the year 1981 and therefore it was grossly time barred. Section 6 of the Specific Relief Act, 1963 provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Sub-section (2) of Section 6 provides that such suit shall be brought within six months from the date of dispossession and it is also provided in the Sub-section (4) that nothing in this section shall bar any person from suing to establish his title to such property and to recovery possession thereof. As is evident from the findings of the lower appellate Court and the exhibits marked in course of trial, the disputed plot No. 807 had vested in the year 1963. However, under Ext.4 the disputed plot was settled in favour of the plaintiffs and fair and equitable rent was fixed in claim case under Section 8(a) of the Estate Abolition Act. Relying on such evidence the lower appellate Court held that the plaintiffs satisfactorily proved their possession over the suit property by oral and documentary evidence. This position can also not to be disputed in view of the concurrent findings arrived at by both the Courts below that the plaintiffs were in possession of the suit property.
In the case of Somanath v. Dr. S.P. Raju (supra), referring to Section 9 of the Specific Relief Act, 1877 (Old Act) it was held that the said section is in no way inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complaint of and the wrongdoer cannot successfully resist the suit by saying that the title and right to possession are in a third person. Therefore a person having possessory title can get a declaration that he was owner of the land in the suit. Here is a case where possession of the plaintiffs has been found by both the Courts below concurrently and under Ext. 4 land has also been settled in favour of the plaintiffs and rent has been accepted by the State. If the principles laid down in the aforesaid decision of the Supreme Court are applied to the facts of the present case the suit is not barred by limitation. Moreover, both the Courts below having concurrently found that the suit is not barred by limitation, there is hardly any scope for this Court to interfere with the same.
9. In view of the findings arrived at above, there is no merit in the appeal and the same is dismissed.