Judgment:
P.K. Misra, J.
1. Defendant is the appellant against a reversing decision, Daitari Dash, the original plaintiff, had filed Title Suit No. 23 of 1979 in the Court of the Munsif, Keonjhar, for declaration of title,confirmation of possession, or in the alternative, recovery of possession and permanent injunction. The disputed property has been described in Schedules A, A-1 and A-2 of the plaint.
2. According to the plaintiff, properties described in Schedules A, A-1 and A-2 were being enjoyed by Dukhia Naik, Suban Naik and Sikhar Naik respectively as Chandana Raiyats under Brahmin landlords of the village and were recorded as such in 1914 Settlement. Subsequently, however, Dukhia Naik and Suban Naik abandoned the lands and left the village, Ourgadeipur. The plaintiff, who claims to be one of the co-sharer-landlords, occupied Schedule A land and other portion measuring Ac. 0.04 decimals of land of Dukhia was given to Mangulu Naik and Sapana Naik, as they were the field servants. Similarly, the plaintiff occupied Schedules A-1 and A-2 lands for more than sixty years as of right and to the knowledge of all others including the defendant's family and the co-sharer Brahmins of the village. The plaintiff claims to have perfected possessory right. It is asserted that defendant was in no way related to Dukhia or Suban, During the current Major Settlement operation, it transpired that about Ac. 0.11 decimals of Suban's land under possession of defendant, whereas Schedule A-2 land measuring Ac. 0.04 decimals under possession of the plaintiff had been recorded in the name of defendant's grandfather Sikhar in the 1914, Settlement. It is asserted that as the lands were contiguous, either the Record-of-Rights of 1914 had been prepared erroneously, or there was an exchange between Sikhar and Suban. It is further asserted that taking advantage of the situation, defendant trespassed upon the disputed lands on 30-8-1979 and damaged some of the seedlings for which F.I.R. was lodged by the son of the plaintiff, but since no action was taken, the plaintiff was forced to file the suit,
3. The defendant in his written statement while denying the plaint allegations claimed that he was related to Suban. It has been further claimed that the suit lands had been recorded in the names of Sikhar, Suban and ukhia. Dukhia was possessing Schedule A land measuring Ac, 0.05 decimals which is now under the possession of Suban and Mangulu who have not been impleaded in the suit. The defendant as the grandson of Sikhar Naik is possessing his lands as well as the lands recorded in the name of Suban. On the death of Suban without leaving any issue, Sikhar being the brother of Suban possessed Schedule A-1 lands. It is asserted that the plaintiff has manipulated the Current Settlement records and the suit is liable to be dismissed, as he does not have any right over the disputed property.
4. During the pendency of the suit, the original plaintiff having died, his legal representatives were impleaded as plaintiffs 1 to 5.
5. The trial Court held that Dukhia, Suban and Sikhar had been recordedi as Chandana Raiyats and there was no reliable evidence that Dukhia and Suban had abandoned the lands. It further held that Mangulu and Suban were not parties to the suit and it was difficult to come to a definite finding if they were in possession of Ac. 0.04 decimals of land out of the lands of Dukhia Naik or the entire land of Dukhia Naik, It was further held that plaintiffs had failed to prove their long possession or possessory title in respect of the disputed property. On the aforesaid findings, the suit was dismissed.
6. In Title Appeal No. 2 of 1983 carried by the plaintiffs, the lower appellate Court partly allowed the appeal and declared the possessory title of the plaintiffs in respect of the lands described in Schedules A and A-1 of the plaint and directed for recovery of possession of the aforesaid lands and decree for permanent injunction was also granted. The appeal in respect of Schedule A-2 land was rejected and the order of dismissal of the suit in respect of Schedule A-2 land has become final.
7. In this second appeal, it is first contended by the learned counsel for the defendant-appellant that the trial Court having dismissed the suit on the ground of nonjoinder of parties, namely Mangulu and Suban and the said finding having not been reversed by the lower appellate Court, the decision of the lower appellate Court is vulnerable, The aforesaid contention of the learned counsel for the appellant though attractive on the face of it cannot stand scrutiny. The defendant himself has not claimed any right over Schedule A property. It is the specific case of the plaintiffs that the balance Ac. 0.04 decimals of land belonging to Dukhia was under the possession of Mangulu and Suban. Since the plaintiffs did not claim any right over the portion of land under the possession of Mangulu and Suban and there is no allegation that Mangulu and Suban are interfering with the right of the plaintiffs over the balance Ac. 0.05 decimals of land, originally belonging to Dukhia, the entire suit could not have been dismissed on the ground of non-joinder of Mangulu and Suban as parties. Even in respect of Schedule A property, it cannot be said that Mangulu and Suban were necessary parties, since there is no allegation that they were interfering with the alleged right of the plaintiffs and as such were not necessary parties. The aforesaid view gains ground from the decision of this Court reported in (1972) 38 CLT 105 (Achut Kalsai v. Madhu Kalsai). It may be made clear that the decision would not bind them in any manner. So, the first contention of the learned counsel for the appellant fails.
8. It is next contended that in view of the finding of the lower appellate Court that there was no evidence in support of the plea of abandonment by the recorded Chandana Raiyats, and in the absence of any categorical finding regarding the acquisition of title by adverse possession, the suit could not have been decreed in favour of the plaintiffs. The finding of the lower appellate Court on this score appears to be confusing. The lower appellate Court has observed as follows:--
'In the present case though the abandonment of land by Dukhia Naik and Suban Naik has not been factually established by the appellant, yet the record-of-right issued in the present settlement shows that Daitari Dash, the father of the plaintiffs-appellants, is in possession of the lands of Dukhia Naik and Suban Naik being abandoned by them
(Talataka Pakshye').'
However, in spite of the aforesaid finding, the appellant cannot succeed. So far as the property of Dukhia is concerned, admittedly, the defendant-appellant does not claim any interest or possession over the same. Even assuming that the plaintiffs failed to establish their title over Schedule A land which is a part of the recorded property of Dukhia Naik, it has been found that they were in long possession of the suit land. Law is well settled that a person in possession of land even without title can maintain his possession against and recover possession from the entire world except the true owner. Even if the true owner forcibly dispossesses a person in possession, he can recover possession from the true owner within six months of dispossession under Section 6 of the Specific Relief Act. In this connection the decisions reported in AIR 1968 SC 1165 (Nair Service Society Ltd. v. K. C. Alexander) and AIR 1970 SC 846 (Somnath Berman v. Dr. S. P. Raju) are illuminating.
In the present case, the defendant is neither the true owner, nor he claims any right over Schedule A property by way of prior possession. Dukhia Naik or his successors or even Mangulu and Suban may be the true owners, but the defendant cannot resist the claim of the plaintiffs for possession on that score. Accordingly, the appeal is bound to fail so far as Schedule A property is concerned. However, since the persons interested in denying the title of the plaintiffs, that is to say, Dukhia or his successors and/ or Mangulu and Suban, are not parties to the suit, the declaration of title may be inapt. Instead of declaration of title, it is directed that the plaintiffs are entitled to a decree for recovery of possession and injunction on the basis of their prior possession as against the defendant.
9. Coming to Schedule A-1 land, it is contended that as the plaintiffs have failed to prove their adverse possession and the defendant being the successor of Suban Naik, he is entitled to succeed in this appeal. The lower appellate Court has found as a fact that the plaintiffs are in long possession of Schedule A-1 land and it seems to have accepted the evidence that the original plaintiff Daitari Dash was in possession for at least fifty to sixty years. It has been also found that the defendant had failed to prove that he was related to Suban Naik as claimed in the written statement. It is the admitted case of the defendant-appellant that Suban has died issueless. In the absence of any acceptable evidence that the defendant was indeed the successor-in-interest of Suban, and in view of the finding of the lower appellate Court that the original plaintiff Daitari Dash was in long possession of the land for at least fifty to sixty years, there is nothing to interfere with the finding of the lower appellate Court on that score.
10. In the result, the appeal stands dismissed. The parties will, however, bear their own costs throughout.