A.K. Parichha, J.
1. This is an appeal by the defendants against the judgment and decree of learned Civil Judge (Sr.Division), Bhubaneswar in Title Suit No. 382 of 1998.
2. Respondent as plaintiff filed the above said suit for declaration of his title, confirmation of his possession over the suit land, for issue of permanent injunction restraining the defendants from interfering in his possession over the same and also for direction to the defendants to declare that the record of the suit land prepared by the settlement authorities is wrong and illegal and to prepare the record of rights for the suit land in his name and to disburse that record of rights to him.
3. The plaintiff-respondent's case in brief was that late Choudhury Chakradhar Mohapatra, the Ex-Zamindar of Gadakana area was in occupation of Ac. 64.65 decimals of Anabadi land including the suit land. The said Zamindar permanently leased out the suit land measuring Ac. 1.00 in favour of the respondent's father by means of a HATAPATTA on 20.05.1941 for the purpose of cultivation. The father of the respondent thereafter constructed a thatched house on the suit land and cultivated the land by growing paddy and other crops and paid rent to the Zamindar for this land. Subsequently after abolition of Zamindari the father of the respondent continued his possession over the suit land and paid rent for that land to the State Government and accordingly, in settlement record he was recorded as a tenant in possession of the suit land since 1941. In course of time, the father of the respondent constructed two rooms on the suit land and the Bhubaneswar Municipal Corporation also realized holding tax from him for these houses. Electoral roll was also prepared showing him as a resident of that place. In 1970 settlement operation the settlement authorities found the father of the respondent in peaceful possession of the suit land and prepared the draft settlement record accordingly. At this juncture, father of the respondent died in 1975. The respondent being Adivasi and illiterate man was unaware of the settlement proceeding and did not attend the same, though he continued possession over the suit land and house. When the matter stood thus, in 1998 some persons claiming to be the employees of the appellants asked the respondent to vacate the suit land where after the respondent enquired and came to know that the settlement authorities have prepared the R.O.R. of the suit land in the name of the State Government deleting the note of possession of the father of the respondent over the same. The employees of the appellants again visited the suit property on 22.7.1998 to demolish the suit house and evict the respondent. So, finding no other alternative, the respondent filed the suit seeking the afore-mentioned reliefs.
4. The appellant Nos. 1 and 2, as defendants filed separate written statement denying the claim and allegation of the respondent. Appellant No. 1 as defendant No. 1 pleaded that Plot No. 1726 having an area of Ac. 64.65 decimals was Jhati jungle and recorded under Anabadi Khata in favour of the State Government and during 1973-74 settlement also this land was recorded in the name of the State under Rakshit Khata No. 1076, Plot No. 4706. Defendant No. 1 pleaded that the respondent's father was never in occupation of the suit land since 1941, but the respondent has recently occupied a portion of the said plot measuring Ac. 0.682 decimals and has illegally constructed the small thatched house and asbestos houses and has let those house to outsiders. The appellant No. 1 thus pleaded that neither the respondent nor his father has acquired any title over the suit land. Appellant No. 1 also challenged the maintainability of the suit on the ground of limitation, non-joinder of necessary parties as well as non-service of proper notice under Section 80 of the C.P.C.
5. The appellant No. 2 as defendant No. 2 filed similar written statement with a further pleading that under Section 91 of the Orissa Development Authorities Act, Bhubaneswar, Development authority has the power and jurisdiction to demolish any unauthorized construction made within its development area and that the Civil Court has no jurisdiction to grant injunction against appellant No. 2.
6. From the pleadings of the parties learned trial Court framed the following issues:
(i) Is the suit maintainable?
(ii) Has the plaintiff cause of action to file the suit?
(iii) Whether the suit is bad for non-joinder of necessary parties?
(iv) Whether the suit is bad for non-service of notice under Section 80, CPC?
(v) Whether the suit is barred by law of Limitation?
(vi) Whether the plaintiff has got right, title, interest and possession over the suit land?
(vii) Whether the defendants should be permanently restrained from interfering in the possession of the plaintiff in any manner?
(viii) Whether the defendants should be directed to record the suit land in the name of the plaintiff?
(ix) Whether the settlement R.O.R. of the suit land is incorrect? (x) To what relief, if any, the plaintiff is entitled?
7. The respondent-plaintiff examined himself and another witness and also produced documents, which were marked as Exts. 1 to 14. Defendants examined only two witnesses and did not produce any document. Considering the evidence on record learned trial Court decided issue Nos. 1, 2, 6, 7, 8 & 9 in favour of the plaintiff-respondent. He also decided issue Nos. 3, 4 & 5 in favour of the plaintiff-respondent with the remark that those issues were not pressed by the defendant, Consequently, the suit was decreed on contest against the defendants and the right, title and interest of the plaintiff over the suit land were declared and his possession over the same was confirmed. The said judgment and decree is under challenge in this appeal.
8. Mr. S.K.Nayak-1, learned Senior Counsel appearing for the appellants submits that learned trial Court committed grave illegal error in admitting the documents, Exts. 1 & 2 series although the genuineness of those documents had been seriously challenged by the appellants and there was no reliable evidence to establish the execution and genuineness of the documents. Mr. Nayak contended that learned trial Court misdirected itself by putting the burden of proof on the appellants rather than asking the respondent to prove the genuineness of the documents relied by him. In this connection, he relied on the case of Bipin Shantilal Panchal v. State of Gujarat and Anr. 2001 (I) OLR (SC) 428. His further contention was that the respondent neither pleaded nor proved the continuity of his alleged tenancy and Exts. 1 & 2 series do not satisfy the requirement of Section 8(1) of the O.E.A. Act and, therefore the settlement authority rightly recorded the suit land in favour of the State Government. On this point he placed reliance on the cases of Chaini Das and Ors. v. Kanhai Charan Swain and Ors. 1995 (II) OLR 4S6and Chandra Sekhar Rath v. The Collector, Dhenkanal and Ors. 1988 (II) OLR 572. Mr. Nayak also submitted that once the respondent claims induction of tenancy by virtue of Ext. 1, his alleged possession from the date of induction would be permissive in nature and in the absence of pleading of hostile animus from a particular date against the State, the plea of adverse possession would not be acceptable, but learned trial Court failed to take note of such position of law while answering issue Nos. 7 to 10. He further challenged the remark of the learned trial Court that the issue Nos. 3, 4 & 5 were not pressed. According to him, defendants seriously challenged the maintainability of the suit on the ground of want of limitation and proper notice under Section 80 of the C.P.C. and also for non-joinder of necessary parties and there was no question of not pressing these issues.
9. Mr. Ashok Mukherjee, learned Senior Advocate appearing for the respondent while supporting the impugned judgment and decree stated that Hata pata and rent receipts Exts. 1 & 2 granted by ex-intermediary read with Ext. 5 conclusively prove that plaintiff and his father were in possession of the suit land from 1941 till the date of vesting under Section 8 of the O.E.A. Act and being tenants in possession, their tenancy continued and the State Government also recognized their tenancy by accepting rent and granting rent receipt Ext. 3. In this regard, he relied on the case of The Collector, Cuttack v. Shri Atul Chandra Das and Anr. 1972 (2) CWR 1104. He argued that a party pleading fraud, misrepresentation etc. has to specifically plead the particulars of fraud and misrepresentation and prove such particulars by cogent evidence, and for that reason, when the appellants pleaded that documents Exts. 1 & 2 series had been manufactured for the purpose of the case, they should have pleaded the details of such fraud and should have proved such allegation and when they failed to prove such allegation, learned trial Court rightly accepted and relied on those documents. On this score, Mr. Mukherjee relied on the cases of Hansraj Gupta and Ors. v. Dehra Dun Mussoorie Electric Tramway Co. Ltd. AIR 1940 PC 98 and A.L.N.Narayanan Chettyar and Anr. v. Official Assignee, High Court, Rangoon and Anr. AIR 1941 PC 93, Mr. Mukherjee further argued that when there was Hata pata and rent receipt granted by Ex-Zamindar, when the Tahasildar subsequently accepted rent for the suit land from the plaintiff's father, the Sabik settlement records show the note of possession of the plaintiff's father since 1941, the Municipal authority accepted holding tax for the houses standing on the suit land, the State Electricity authorities provided electric supply and received tariff from the plaintiff and his father for the house standing on the suit land and when the Revenue Inspector himself reported about the possession of the plaintiff and his father over the suit land since 1941, there was no error on the part of the learned trial Court in declaring the right, title and possession of the plaintiff-respondent over the suit land. Regarding issue Nos. 3, 4 & 5. Mr. Mukherjee argued that the appellants are estopped from challenging the remark of the learned trial Court, as they did not file any petition for review of the remark that the defendants did not press these issues.' In this regard, Mr. Mukherjee relied on the case of Gangadhar Das and Anr. v. Gadadhar Das and Ors. : AIR1986Ori173 . In the concluding submission Mr. Mukherjee argued that the contents of the written statement of the appellants are to be ignored for want of proper verification. On this score, he relies on the case of S.N. Patil v. Dr. Mahesh Madhav Gosavi and Ors. : [1987]1SCR458 .
10. Learned Counsel for the appellants made a submission that the pleading of the defendants in the written statement should be ignored for the reason. that the contents have not been properly verified and relied in the case of S.N. Patil v. Dr. Mahesh Madhav Gosavi and Ors. (supra). In that case, affidavit evidence was adduced and because the said affidavit had not been properly verified, the contents were not accepted. The ratio is not applicable to the present case. In the present case, the Government officials have verified the contents of the written statement by saying that they verified the same from official records. Government officials representing the State cannot always be expected to have personal knowledge about the issues involved and can verify the pleading with reference to official records. Moreover, law is settled that even without filing written statement a defendant may contest the suit of the plaintiff and participate in the proceeding. So, the submission of the learned Counsel for the respondent in this regard is not acceptable.
11. The plaintiff-respondent based his claim mainly on the Hata Pata (Ext. 1) and rent receipts, Ext. 2 series issued by the Ex-intermediary. The defendant-appellants challenged the genuineness of the documents. Learned trial Court on consideration of the evidence on record came to hold that the defendants failed to prove that the documents were fake and manufactured ones and therefore, accepted those documents as genuine. The grievance of the learned Counsel for the appellants is that although, according to law, the burden was on the plaintiff to prove the genuineness of the documents, learned trial Court wrongly put the burden on the defendants to prove that the documents were not genuine. The learned Counsel for the respondent on the contrary submitted that the burden is always on the person, who alleges fraud to prove the particulars of the alleged fraud and so, learned trial Court rightly put the burden on the defendants in the case of Hansraj Gupta and Ors. v. Dehra Dun Mussoorie Electric Tramway Co. Ltd. (supra) as well as in the case of A.L.N.Narayanan Chettyar and Anr. v. Official Assignee, High Court, Rangoon and Anr. (supra), the Privy Council observed that the party alleging fraud must prove the particulars of fraud by cogent evidence. Similar view has also been taken by the apex Court as well as by this Court. However, the said principle cannot be applied to the present case because the defendants did not come up with an allegation of fraud. In their written statement they simply denied the genuineness of the documents, Exts. 1 and 2 series. When a party bases its right title on a document and presses such document into service as evidence, the burden rests on it to prove the genuineness of such document, particularly when the defendant challenges the genuineness of the document. Such denial of defendant cannot be equated with a pleading of fraud. Be that as it may, to judge the genuineness and admissibility of a document, the surrounding factors, such as proof of execution of the document, presumptive value of such document, nature of document whether public or private etc., are to be taken into consideration and in doing so, the evidence led by both parties have to be perused and assessed. In the present case, the documents Exts. 1 and 2 series are more than thirty years old and it is being produced by a person in whose favour, it was allegedly granted. Section 90 of the Evidence Act clearly says that:
Where any document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be....
In view of this provision there will be a presumption that Exts. 1 and 2 were executed by the then Zamindar and his officials and that the signature and every other part of these documents are in the handwriting of those officials of the Zamindar. In addition to such presumption, there was evidence of P.W.1 that Hata Pata (Ext. 1) was given by the Zamindar-Choudhury Chakradhar Mohapatra to his father and rent receipts were also issued by the officials of the Zamindar. P.W.2, who is an old man of 85 years, also supported the stand of the plaintiff by saying that the suit land was given by the Zamindar to the father of the plaintiff. D.W.1, the Revenue Inspector and D.W.2, the Additional Land Officer did not stoutly deny the execution of the Exts. 1 and 2 by the Zamindar and his officials. They simply stated that the alleged plot measuring Ac. 64.65 decimals was recorded as Jhati Jungle and it is the property of the State and that the father of the plaintiff was not in possession of the same since 1941. That being the kind of evidence, learned trial Court did not commit legal error in observing that Exts. 1 and 2 series were genuine documents.
12. Regarding possession of the plaintiff and his father over the suit land since 1941, the plaintiff, besides Exts. 1 and 2 series, relied on the rent receipt, Ext. 3, granted by Tahasildar; the Municipality tax receipt of the house standing on the suit land, Ext.4 series; the electricity bills, Ext. 6 series; Election Identity Card, Ext. 10; sabik khatian, Ext. 11; Hal R.O.R. of the suit land, Ext. 12. Ext. 3 is rent receipt granted by the Tahasildar in favour of the father of the plaintiff after abolition of the Zamindary by incorporation of O.E.A.Act. The Municipal tax receipts, Ext. 4 series relate to payment of holding tax for the houses. Similarly, the Electricity Department receipts, the voter list etc. show that the plaintiff has houses on the suit land and is in occupation of the same. D.Ws. 1 and 2 say that the plaintiff has occupied the suit land recently and has constructed the houses only a few years ago. In this regard, it is pertinent to note that in the Sabik settlement records the note of possession of the father of the plaintiff has been mentioned since 1941. In the, draft record of right of the current settlement also such entry was there in favour of the father of the plaintiff. But in the final R.O.R. this entry was deleted. It is worthwhile to note that in the report of the Amin submitted after spot inquiry in response to the direction of the learned Tahasildar, Bhubaneswar in O.E.A. Misc. Case No. 36 of 1997, it is noted that the father of the plaintiff was in possession of the suit land since 1941. In this report, R.I. has clearly mentioned that the local gentlemen told during inquiry that the father of the plaintiff was in possession since 1941. With all these evidence, there was no other scope for learned trial Court than to hold the possession of the plaintiff and his father over the suit land since 1941.
13. According to learned Counsel for the appellants, once the plaintiff-respondent claims induction of tenancy by virtue of Ext. 1 such possession would be permissive in nature and he or his father cannot derive any title over the land by virtue of adverse possession unless they show their hostile animus against the State from a particular date. Here the plaintiff claims title over the suit property through a lease obtained from the Ex-Zamindar and also by virtue of his peaceful possession over the same when the entire Estate vested in the State by coming into operation of the O.E.A.Act. As an alternative plea only he claims title by adverse possession. As has been held earlier, the plaintiff and his father are in continuous possession of the suit land since 1941 and that the lease document is also a valid one. Section 8 of the OEA Act provides that if a person was in physical possession of a land on the date of vesting of the Estate, as a tenant under the intermediary, he shall hold the land on the same right, as he was entitled to immediately before the date of vesting. This aspect has been clarified in the case of Chandra Sekhar Rath v. The Collector, Dhenkanal and Ors. (supra). When the plaintiff and his father were in possession of the suit land by virtue of the lease granted by the Zamindar and when they were in possession on the date of vesting of the Estate, they were entitled to benefit of Section 8 of the OEA Act. Even if it is accepted for the sake of argument that the lease document-Ext. 1 was an invalid one, then also the plaintiff and his father would have title over the suit property by virtue of their long and continuous possession since 1941, as possession over a piece of land on the basis of an invalid document amounts to adverse possession from the date of entry into possession through such invalid document. This view finds support from the observation made in the case of Collector of Bombay v. Municipal Corporation of the City of Bombay and Ors. : [1952]1SCR43 . Therefore, rightly the learned trial Court answered issue Nos. 1, 2 & 6 in favour of the plaintiff-respondent.
14. It appears from the impugned judgment that tine defendant-appellants did not press issue Nos. 3, 4 & 5, which relate to nonjoinder of necessary parties, non-service of notice under Section 80 of the C.P.C. and want of limitation. Learned Counsel for the appellants vehemently argued that no such concession was made by the defendant in the trial Court. According to him, there was no scope for making such concession as the defendant had stoutly challenged the maintainability of the suit on the ground of non-joinder of necessary party, non-service of notice under Section 80, C.P.C. and want of limitation. He submitted that either those issues be answered in this appeal on merit or the matter be remanded to learned trial Court for fresh adjudication of those issues. Learned Counsel for the respondent submitted that the appellants are estopped from raising these issues in appeal as the only legal outlet for them was to file a petition for review in the trial Court. A close reading of Order 41, Rule 1 of the C.P.C. would show that a point taken in the pleading, but not urged in the trial Court or abandoned cannot be allowed to be taken in appeal. Likewise a point not pressed in the Court of appeal cannot be entertained in the Court of further appeal. A Division Bench of this Court in the case of Gangadhar Das and Anr. v. Gadadhar Das and Ors. (supra) clarified this position with the following observation:
When a judgment is founded on a misconception as to a concession made by an Advocate, the proper procedure is to apply by way of review to the very Court in whose judgment the error is alleged who have crept in for a rectification of the mistake, if any and it would not be proper for the appellate Court to wipe out the effect of the so called concession on considering the evidence.
This view is also supported by the decisions reported in AIR 1917 P.C. 30, Madhusudan Chowdhuri v. Mst. Chandrabati Chowdhrain AIR 1954 SC 526, Moran Mar Basselios Catholicas v. Most. Rev. Mar Poulose Athanasius and : 1982CriLJ1581 , State of Maharashtra v. Ramdas Shrinivas Nayak. Admittedly, the appellants did not file any review petition for review of the remark of the learned trial Court that defendants did not press issue Nos. 3, 4 & 5. When they did not file any review petition, now they cannot claim adjudication of issue Nos. 3, 4 & 5 in this appellate forum.
15. The foregoing discussions show that the plaintiff has acquired title over the suit land. Learned trial Court, therefore, rightly decided issue Nos. 7, 8 & 9 in favour of the plaintiff.
16. For the foregoing reasons, the impugned judgment and decree of the learned trial Court is confirmed and the appeal is dismissed on contest, tout without any cost.