01. This Second Appeal under Section 100 of CPC, 1908 is filed challenging the judgment dated 05.08.2023 and decree dated 11.08.2023 passed by Learned District Judge, Dhalai Judicial District, Ambassa in connection with case No.Title Appeal 02 of 2021. By the said judgment and decree, Learned First Appellate Court has affirmed the judgment dated 25.02.2021 and consequential decree dated 08.03.2021 passed by Learned Civil Judge (Senior Division), Ambassa, Dhalai Judicial District , Court No.1 in connection with case No.Title Suit 06 of 2018 (Renumbered as Title Suit 09 of 2018).

02. Heard Learned Counsel, Mr. Ratan Datta appearing for the appellant-plaintiffs and also heard Learned Counsel, Ms. Aradhita Debbarma appearing on behalf of the respondent-defendants.

03. At the time of hearing, by order dated 04.01.2024 the following Substantial Question of law is formulated:-

                  “(1) Whether the earlier judgment passed by the Learned First Appellate Court below is perverse?”

                  Before proceeding with the merit of the appeal, let us discuss about the subject matter of the dispute amongst the rival parties.

04. The brief facts of the case of the appellant-plaintiffs was in short is that, one Rebati Mohan Sarkar the predecessor of the appellant-plaintiffs died leaving behind the appellant- plaintiffs. Said Rebati Mohan Sarkar and Parimal Sarkar – original defendant are the brothers. The appellant-plaintiffs used to live with their predecessor by constituting in a single family.

                  The respondent-defendant and his family members are living in separate mess having separate properties. The land measuring 0.87 acres under R.S. Plot Nos.2047, 2048 and 2049 incorporated in the Khatian No.220/3 was owned and possessed by the predecessor of the appellant-plaintiffs during his lifetime and after his death the said land has been under the ownership of the appellant-plaintiffs having right title and interest thereto.

                  In the year 1988, the respondent-defendant sought permission from the predecessor of the appellant-plaintiffs to live within the suit land (as mentioned in 1st Schedule of the suit property) on condition to vacate the same as and when asked for. Thus, according to the appellant-plaintiffs, the respondent-defendant was nothing but a permissive occupier of the said property.

                  The appellant-plaintiffs never asked the respondent-defendant to vacate the suit land. But the respondent-defendant started raising unauthorized constructions over the same. So, the appellant-plaintiffs objected the same but that was not adhered by the respondent-defendant. After that, one Advocate’s notice was sent to the defendant to vacate the suit land but the respondent-defendant denied vacating the same and by another Advocate’s notice dated 22.12.2017 claimed the suit land to be the joint property. Finding no alternative way the appellant-plaintiffs filed the suit before the Learned Trial Court. Initially, the suit was filed at Kailashahar under Unakoti District but due to bifurcation of the district the suit was transferred to Ambassa, Dhalai District.

05. The synopsis of the case of the respondent-defendant:-

                  The respondent-defendant challenged the maintainability of the suit on the ground of limitation, undervaluation, principles of estoppel, waiver and acquiescence. It was the case of the defendant that, the suit land along with other lands were recorded in the name of the predecessor of the appellant-plaintiffs i.e. Rebati Mohan Sarkar as he was Karta of the joint family.

                  One Rajani Kanta Sarkar, who was the father of the defendant and common ancestor of the parties came to India from Bangladesh with his family members and other co-neighbours, after selling out all his immovable properties at Bangladesh. Said Rajani Kanta Sarkar took shelter at Chailengta in the land of some tribal people with permission for construction of huts therein. But due to old age of said Rajani Kanta Sarkar, his eldest son Rebati Mohan Sarkar took responsibilities of the entire family and also took funds from the sale-proceeds of the sold out property and started managing the family as Karta of the joint family. At that time, the respondent-defendant was minor. Thus, record of rights was entered in Old Khatian No.102 by showing the name of said Rebati Mohan Sarkar but the property was a joint family property. During the revisional survey operation, while the respondent-defendant was at Kailashahar, that time at the instance of Nishit Sarkar, one of the appellant-plaintiffs, the name of the respondent-defendant was wrongly recorded beyond the knowledge of the respondent-defendant as permissive possessor against some plots of land. The appellant-plaintiffs raised objection on 21.02.2015 for deletion of name of the defendant but that was rejected by the competent authority as the respondent-defendant was found to be in possession of the suit land. Hence, the respondent-defendant by his written statement prayed for dismissal of the suit with costs.

                  06. Upon the pleadings of the parties following issues were framed:-

                  ISSUES

                  (I) Whether the suit is maintainable in its present form and nature?

                  (II) Whether the suit is barred by limitation?

                  (III) Whether the plaintiffs have right, title and interest over the suit properties?

                  (IV) Whether the plaintiffs are entitled to get recovery of possession of the suit property after evicting the defendant therefrom by removing all obstruction therein?

                  (V) Whether the plaintiffs are entitled to get the decree as prayed for?

                  (VI) To what other relief/reliefs the parties are entitled?

07. In order to prove the case, both the parties have adduced oral/documentary evidence on record. For the sake of convenience let us reproduce herein below the names of the witnesses and the exhibited documents which are as follows:-

                  APPENDIX

                  (A) Plaintiffs’ Witness:

                  P.W. 1:- Sri Nishit Sarkar (Plaintiff No.3);

                  P.W. 2:- Sri Rajkumar Choudhury;

                  P.W. 3:- Sri Chitta Ranjan Bhowmik; and

                  P.W. 4 :- Sri Rakhal Bhowmik.

                  (B) Defendant’s Witness:

                  D.W. 1 :- Sri Parimal Sarkar (Defendant);

                  D.W. 2 :- Smt. Hirabati Mallik; and

                  D.W. 3 :- Sri Manindra Bhowmik;

                  (C ) Plaintiffs’ Witness:

                  Exhibit 1: Advocate notice dated 01-12-2017 in three sheets along-with postal receipt and A.D.;

                  Exhibit 2: Reply of notice for and on behalf of Parimal Bikash Sarkar (defendant) in three sheets;

                  Exhibit 3: Certified copy of Khatian No.220/1 of Mouja-Chailengta in two sheets;

                  Exhibit 4: Certified copy of Khatian No.220/2 of Mouja-Chailengta in two sheets;

                  Exhibit 5: Certified copy of Khatian No.220/3 of Mouja-Chailengta in two sheets;

                  Exhibit 6 : Certified copy of Khatian No.220/4 of Mouja-Chailengta in two sheets;

                  Exhibit 7 : Certified copy of Parcha vide No.102/1, 102/2 of Mouja-Chailengta in the name of Rebati Mohan Sarkar; Exhibit 8: Certified copy of Khatian No.866 in the name of Kanchan Rani Sarkar;

                  Exhibit 9: Family Register issued on 26-08-2015 in the name of Harapriya Sarkar.

                  (D) Defendants’ Witness:

                  Exhibit A: Ration card dt. 09-11-1967 in the name of Rebati Mohan Sarkar and other family members in one sheet as;

                  Exhibit B: Electoral card of Chaumanu Assembly Constituency for the year 1982 in one sheet;

                  Exhibit C/1, C/2, C/3 : Khatian vide No.102 of Mouja-Chailengta in three sheets;

                  Exhibit D: Death certificate dt. 22.06.2022 of one Smt. Ranga Mayee Sarkar in one sheet;

                  Exhibit E/1, E/2, E/3: Estimate of electric connection dt. 24.02.1990 with treasury challan in three sheets;

                  Exhibit F/1, F/2: Memo dt. 31.07.2017 of the SDM, Longtarai Valley, Chailengta and copy of e-Cheque; Exhibit G/1 to G/10: Information under the RTI dt. 05.02.2016 by the SDM, Longtarai Valley, Chailengta, in ten sheets.

08. Finally, on conclusion of trial the Learned Trial Court dismissed the suit. The operative portion of the judgment and order of the Learned Trial Court runs as follows:-

                  ORDER

                  14. In view of reasons above given on the aforesaid issues, the suit of the plaintiffs is dismissed.

                  15. Let a decree be drawn accordingly and place before me for my official seal signature within 15 days from today.

                  16. The suit is disposed of on contest.

                  17. Make entry in the Trial Register.

09. Challenging the judgment, the original plaintiffs as appellants have filed the First Appeal before the Court of Learned District Judge, Dhalai District, Ambassa under Section 96 of CPC which was numbered as TA No.02 of 2021 and the Learned District Judge after hearing the parties by judgment dated 05.08.2023 and decree dated 11.08.2023 dismissed the appeal filed by the appellant-plaintiffs affirming the judgment and decree of the Learned Trial Court.

10. For the sake of convenience, let us narrate herein below the operative portion of the judgment of the Learned First Appellate Court which runs as follows:-

                  ORDER

                  14. In the result, the appeal is dismissed being devoid of any merit. The judgment and decree dated 25.02.2021 and 08.03.2021 respectively passed by the Learned Civil Judge (Senior Division), Court No.1, Dhalai Judicial District, Ambassa in Title Suit-06 of 2018 (Renumbered as Title Suit-09 of 2018) whereby the Learned Trial Court dismissed the suit on contest is hereby upheld.

                  15. The appeal is disposed of on contest without cost.

                  16. Prepare decree accordingly within time.

                  17. Send back the Lower Court Record along with a copy of this judgment.

                  18. Make necessary entry in the concerned Trial Register.

11. Challenging the judgment, this appeal has been preferred by the appellant-plaintiffs. Now, at the time of hearing of argument, Learned Counsel for the appellants drawn the attention of the Court, admittedly the suit property was belonging to Rebati Mohan Sarkar being the predecessor of the appellant-plaintiffs who possessed the same by different acts of possession constructing his homestead therein. The respondent-defendant was his brother and during his life time he allowed his brother to stay on a portion of the suit land with condition to vacate the same as and when required. He started utilizing the same and during settlement operation somehow the name of the respondent was recorded as a permissive possessor and when the appellant-plaintiffs requested to vacate the suit land that time he refused to do the same rather started making constructions therein which compelled the appellants to file the suit and before the Learned Trial Court the appellants adduced oral/documentary evidence on record but the Learned Trial Court failed to appreciate the evidence on record of the appellant-plaintiffs properly and dismissed the suit.

12. According to Learned Counsel for the appellant-plaintiffs, the respondent-defendant had no right, title and interest over the suit land at any point of time and he was permitted to posses the land on condition to vacate the same. The permissive possessor as per law cannot claim any right or title over the suit land but the Learned Courts below came to the observation that it was a joint family property and the respondent got electric connection, water supply connection over the same. So, Learned Trial Court came to the observation that since it was a joint family property as such there was no scope on the part of the appellant-plaintiffs to get a decree and dismissed the suit which has been affirmed by the Learned First Appellate Court without any justified grounds.

13. Learned Counsel for the appellant-plaintiffs further submitted that had the respondent-defendant could have any documentary evidence on record, in that case he could approach to the settlement authority for insertion of his name in the record, but he did not do so. Rather he tried to establish a case that the predecessor of the appellant-plaintiffs Rebati Mohan Sarkar accumulated money from his father of the landed properties and being a Karta of the joint family he used to look after all the properties and managed to record his name in the respective ROR depriving the respondent-defendant. This story according to Learned Counsel cannot be accepted as a true and lawful story but the Learned Courts below did not consider the oral/documentary evidence on record of the appellants and dismissed the suit which needs to be interfered with and urged before the Learned Court to grant a decree in favour of the appellant-plaintiffs.

14. On the other hand, Learned Counsel for the respondent-defendant submitted that, there was no infirmity in the judgment delivered by the Learned Trial Court as well as the Learned First Appellate Court. According to the Learned Counsel, the appellant-plaintiffs before the Trial Court could not adduce any documentary evidence on record in support of their title over the suit land rather the respondent-defendant by adducing oral/documentary evidence on record could satisfy the Court that the suit property was a joint family property and it was jointly owned and possessed by the predecessor of the appellant-plaintiffs and the respondent-defendant and after his death the appellant-plaintiffs as well as by the respondent-defendant and furthermore, over the suit land the respondent has raised his constructions and staying therein with his family members wherein he got his electric connection in his name as well as the water connection also. So, considering the materials on record, the Learned Trial Court rightly dismissed the suit which has been affirmed by the First Appellate Court and according to Learned Counsel there is no merit in the appeal and the substantial question of law leans in favour of the respondent-defendant and urged for dismissal of the appeal with costs.

15. It is admitted by both the parties that a portion of the suit property has been recorded in the name of respondent-defendant as permissive possessor. Admittedly, the respondent-defendant could not produce any documentary evidence on record over the suit property to substantiate his title over the same rather he took the plea that it was a joint family property.

16. Now, here in this appeal this Court is to decide whether on the basis of mere entry as permissive occupier or possessor the respondent-defendant would be able to protect his title or not. As already stated the respondent-defendant could not submit any documentary evidence on record in respect of the suit property save and except his entry as permissive possessor in the respective Khatian. There is no evidence on record that he ever took any effort for correction of entry to the respective authority to substantiate his defence rather it has been specifically pleaded and admitted by the appellant- plaintiffs, that in the year 1988, a portion of the suit property was permitted to be used by the appellant-plaintiffs to the respondent-defendant on condition to vacate the same as and when required which the respondent-defendant refused to vacate rather tried to raise constructions when the suit has been filed by the appellant-plaintiffs.

                  It is the admitted position that, for correction of permissive possession probably the appellant-plaintiffs filed petition but that was rejected by the authority on the ground that the respondent-defendant was found to be in possession of the suit property. It is admitted by both the parties that, the respondent-defendant is presently occupying the suit property. In this regard, Section 43 (3) of TLR and LR Act, 1960 is relevant which provides as under:-

                  “Section 43 (3)- Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct.”

17. As already stated at the time of hearing, Learned Counsel for the respondent-defendant pleaded the case on behalf of the said respondent-defendant on the basis of entry in the ROR as permissive possessor.

                  In this regard, Hon’ble the Supreme Court of India in a judgment in Neelam Gupta and Others Vs. Rajendra Kumar Gupta and Another reported in 2024 SCC OnLine SC 2824, wherein in relevant portion of Para No.34 and Para Nos.37, 41, 43 observed as under:-

                  “34. *********** In view of the above indisputable and undisputed facts as also the rejection of contention of voidness of the sale deeds referred above, the defendants would not be justified in claiming that they had perfected the title by adverse possession and at the same time the aforesaid position would reveal that their possession was permissive in nature. The conclusion so arrived by the High Court based on proper appreciation of the evidence, in detail, as is discernible from the impugned judgment is nothing but the outcome of correct appreciation of the materials on record.

                  37. We have already taken note of the fact that the High Court had duly taken note of Ext.P4 application submitted by the defendants, and also the evidence of DW-1, while being cross examined which were not given due weight by the Courts below. We have also found that the High Court has rightly reached the conclusion that the appellants herein had only permissive possession over the scheduled land and it was not adverse possession. In the contextual situation the following decisions including the one in Saroop Singh v. Banto :[(2005) 8 SCC 330] relied on by the High Court, assume much relevance. Paragraphs 28, 29 and 30 of Saroop Singh’s decision read thus:-

                  “28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.

                  41. In the decision in Brij Narayan Shukla (D) through LRs. v. Sudesh Kumar alias Suresh Kumar (D) through LRs. and Ors.:[(2024) 2 SCC 590], this Court while considering the question whether tenants of original owner could claim adverse possession against transferee of land lord held that tenants or lessees could not claim adverse possession against their landlord/lessor, as the nature of their possession is permissive in nature.

                  43. In the case on hand, the evidence on the part of the defendants/appellants herein would reveal that instead of establishing „animus possidendi‟ under hostile colour of title they have tendered evidence indicating only permissive possession and at the same time failed to establish the time from which it was converted to adverse to the title of the plaintiff which is open and continuous for the prescriptive period.”

                  Here in the case at hand, it is not the case of the respondent-defendant that they are claiming the suit land on the basis of adverse possession. Rather the respondent-defendant tried to protect his title by raising the plea of permissive possession and joint family property. Because in a case of adverse possession the possessor should accept the ownership of the original owner but here in the case at hand, the respondent-defendant never accepted the absolute ownership of the appellant-plaintiffs or their predecessor and as such in absence of the claim of adverse possession no relief can be granted in favour of the respondent-defendant.

                  In another judgment in Rabindranath Panigrahi Vs. Surendra Sahu reported in 2025 SCC OnLine SC 504 of Hon’ble the Apex Court wherein in Para Nos.3.7, 10 and 12 observed as under:-

                  “3.7 Being dissatisfied with the judgment of the Trial Court, the defendant preferred a Regular First Appeal No. 04 of 2010: Previously numbered as R.F.A. No.76 of 2007 before the learned 1st Addl. District Judge, Berhampur (District Ganjam). By judgment dated 29th January 2011, the First Appellate Court affirmed the findings of the Court below and dismissed the appeal with costs, and observed that :-

                  “6. … Admittedly Ashalata Devi was the owner of the suit house. The plaintiff claiming to be the adopted son of the Ashalata Devi has filed the suit for eviction against the defendant. The learned trial court relying upon the oral and number of contemporaneous documentary evidence has held that the plaintiff is the adopted son of the said Ashalata Devi and that after the death of said Ashalata Devi the plaintiff has acquired title to the suit property. The aforesaid findings of the trial court have not been challenged by the appellant. Therefore, the sole point that needs to be considered in this appeal is whether the defendant has acquired title to the suit shop house by adverse possession. It appears that right from the beginning the defendant pleaded that he occupied the suit premises with the permission of Ashalata Devi in the year 1974. It is settled position of law that permissive possession cannot be construed as adverse possession and possession being with permission cannot become adverse unless hostile animus was expressed at any particular time to the knowledge of the owner. In support of such proposition of law, the learned trial court had referred several judgments of the Hon'ble Apex Court and of our own High Court. In the written statement there is no plea as to when the defendant exhibited hostile animus in possessing the suit property. Admittedly Ashalata Devi, has not transferred the suit premises in favour of the defendant by way of any registered gift deed. In absence of such registered gift deed the possession of the defendant over the suit premises is held to be permissive. It is the settled position of law that mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Mere payment of electricity dues in the name of the real owner for over statutory period cannot prove adverse possession of the defendant over the suit premises. It appears that the learned trial court has gone in the evidence adduced by the defendant in detail and after considering the evidence on record, found it as a fact that the possession of the defendant over the suit premises was not adverse for the statutory period. In my view that the learned Civil Judge (SD), Berhampur has come to the right conclusion that the defendant has failed to prove his title over the suit premises by way of adverse possession. Sinec the defendant has been in illegal possession of the suit premises without payment of rent rightly the learned trial court has held that the defendant is liable to pay the arrear rent and damages. Hence, there is no reason for this Court to interfere with the impugned judgment and decree."

                  10. Additionally, we find that both the Courts below held the relationship of landlord and tenant to be proved between the parties. This, in our view, is a finding of fact which could not be disturbed by the Court in the Second Appeal, as it was not open for the Court to examine the evidence assuming First Appeal jurisdiction, unless the findings returned were perverse. In the present facts, the findings of perversity, in our view, are in themselves perverse. This we say so for two reasons : One, that the defendant has been unable to prove his ownership of the subject matter property by way of adverse possession, establishing open, continuous and hostile possession; and two, that the plaintiff’s ownership that he claims to have devolved upon him by virtue of being the adopted son of Smt. Ashalata Devi (original owner) has nowhere been challenged and, as such, has attained finality.

                  12. Consequently, the judgment of the High Court is set aside. The tenant is hereby directed to handover vacant and peaceful possession of the subject premises within a period of three months from the date of this judgment. The tenant is further directed to clear all arrears, be it rent, utilities or otherwise, within the same timeframe. It is to be ensured that as on the date of handing over of possession, all dues, statutory and/or contractual, arising out of the tenancy, shall be duly cleared. The Registry is directed to communicate a copy of this order to the Registrar General, High Court of Orissa, who shall further communicate the same to the concerned parties.”

18. From the aforesaid judgment, it appears that, permissive possession cannot be construed as adverse possession and possession being permissive cannot become adverse unless hostile animus was expressed at any particular time to the knowledge of the owner. Further, it also has been observed that mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Here in the case at hand as already discussed and stated the respondent-defendant could not adduce any documentary evidence on record showing its title over the suit land nor there was any plea of adverse possession as already stated. So just with the plea of possessing the land as a joint family property and also with the plea of permissive possession by raising constructions cannot be a valid ground to deny the title of the original owner that is the appellant-plaintiffs herein.

19. Admittedly the appellant-plaintiffs could not prove any title deed in support of their ownership over the suit land. But it is true that the settlement authority after observing different stages during settlement operation prepares the record of rights. So, the prima facie prove of ownership of the appellant-plaintiffs cannot be denied over the suit land and furthermore to rebut the contention of the appellant-plaintiffs, the respondent-defendant could not produce any document to substantiate that they have better title over the suit land.

20. Thus, it appears to this Court that, both the Courts below have failed to appreciate the evidence on record in accordance with law rather came to the observation that, the appellant-plaintiffs have no right title over the suit land and dismissed the suit of the appellant-plaintiffs which in the considered opinion of this Court was totally misconceived, not tenable in the eye of law and not supported by any cogent lawful grounds and as such, both the Courts below have committed error in passing judgments dismissing the suit of the appellant-plaintiffs.

21. In the result, the appeal filed by the appellant-plaintiffs is hereby allowed. The right title interest of the appellant-plaintiffs over the suit land is hereby declared. The respondent-defendant is hereby directed to vacate and to hand over the suit premise to the appellant-plaintiffs within a period of 03 (three) months from the date of passing of this judgment failing which the same shall be recovered by the appellant-plaintiffs by due process of law.

The judgments of the Learned Trial Court as well as the judgment and decree passed by the First Appellate Court are accordingly stands set aside and quashed.

With this observation, this appeal stands disposed of on contest with costs in favour of the appellant-plaintiffs.

Prepare decree accordingly.

Send down the records to the Learned Courts below along with a copy of this judgment/order.

Pending application/s, if any, also stands disposed of.