Alekha Subudhi Vs. Damodar Dalei and ors. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 4. the trial court, on consideration of the evidence, came to hold that the defendants failed to prove their case of sale, adverse possession and claim of previous partition. ' though actual driving out a co-owner is clearly a case of ouster, in all cases such physical eviction is not necessary to constitute ouster. madukandy moossa and others). a tenant in-common will not be permitted to claim protection of the statute of limitation and plead acquisition of title by prescription, against his co-tenant, unless it clearly appears that he has repudiated the title of his co-tenant and has been holding adversely to him for the statutory period. a tenant- in-common pleading ouster must establish that there was denial of the other co-owner's right in the properties, that the denial was sufficiently notorious and open, that the tenant-in-common out of possession had got knowledge of it, and that the tenant-in-common in possession continued to enjoy the properties in repudiation of the rights of the other co-tenants in the properties for the statutory period.a. pasayat, j.1. correctness of a reversing judgment in a suit for partition is assailed by the plaintiff-appellant.2. stated in brief, the respective cases of the parties are as follows :plaintiff filed the sort for partition of 11 decimals of land, including 5 decimals of homestead land, claiming half share in the suit properties and prayed for appointment of a civil cout commissioner to effect partition. according to him, the suit properties stood recorded in the names of the plaintiff and site jaganth dalei, father of the defendants in the settlement records they were possessing the land amicably having, equal share without any partition by metes and bounds and were paying, rent jointly; after death of jagannath defendants 1 to 5 threatened to occupy a portion of the suit land forcibly which is under the possession of the plaintiff taking advantage of the fact that there was no partition and therefore, filing of the suit was necessitated.according to the defendants, during the life-time of their father, who died in the year 1945, the suit properties were partitioned by metes and bounds, and each of them was possessing, his respective share; in the year 1938 plaintiff being in need of money sold 1 1/2 decimals of land from northern side to their father for a sum of rs. 45/- and delivared possession and they were possessing the same, and in the settlement proceeding their names have also been recorded separately. their further stand is that they, being in possession of 1 1/2 decimals of land of the plaintiff for more than 12 years, they have perfected their title and interest by way of adverse possession.3. on the foresaid pleadings, six issues were framed by the trial court of which issue nos. 4 and 5 are the vital issues. issue no. 4 related to the question whether plaintiff had sold 1 1/2 decimals of land as claimed by the defendants and issue no. 5 related to the question whether defendants have acquired title by adverse possession over the aforesaid 1 1/2 decimals of land.4. the trial court, on consideration of the evidence, came to hold that the defendants failed to prove their case of sale, adverse possession and claim of previous partition. it accordingly- decreed the suit declaring that the plaintiff on one hand and defendants 1 to 4 jointly on the other were respectively entitled to halt share each of the above suit property. the parties were directed to amicably partition the suit home- stead within three months and in case there was no amicable partition the plaintiff was to apply to the court for partition through a civil court amin commissioner. defendants 1 to 5 assailed the correctness of the judgment before the district judge, cuttack, who while accepting the findings relating to non-sale, reversed the findings so far as they related to the claim of adverse possession. the suit was accordingly dismissed, 5. the primary ground of challenge of the appellant in the second appeal is that the settled position relating to ouster of coparcener from joint family property to accept a plea of adverse possession has not been considered in its,proper perspective.6 the respondents have not entered appearance in spite of service of notice.7. in order to resolve the dispute, the position of law relating to adverse possession and ouster needs to be highlighted. adverse; possession designates a possession in opposition to the true title and real owner and implies that it commenced in wrong and is maintained against right. (see alexander v. polk : 39 mississippi reports 655). ' it is trite law that while mere possession of a person without any title may be adverse to the true owner, possession being ihdicium of title, mare exclusive possession would not constitute adverse possession against a tenant-in-common, and when the parties are co-owners, there is' unity of possession;, possession of the co-owner is possession of all the co-owners, and for possession to become adverse, there must be something more than exclusive occupation; there must be, as it is termed, ouster.' 'though actual driving out a co-owner is clearly a case of ouster, in all cases such physical eviction is not necessary to constitute ouster. it is conceived that in order to constitute poster there should be a refusal express on implied; by the co-owner in possession to allow the other co-owners to participate in the enjoyment or the property. there must be a hostile animus (see air; 1973 mad. 290 aas mohmed rewther and anr. v. smt. jaina bibi). ouster is a positive matter and the hostile animus to constitute ouster must be a positive matter (see air 1969 kerala 222 ; velllyottummel sooppi and ors. v. madukandy moossa and others). a tenant in-common will not be permitted to claim protection of the statute of limitation and plead acquisition of title by prescription, against his co-tenant, unless it clearly appears that he has repudiated the title of his co-tenant and has been holding adversely to him for the statutory period. for exclusive possession by one co-tenant being consistent with the subsistence of the tenancy in common to be adverse, there must be outward acts of exclusive owner- ship of possession hostile to the tenant-in-common. a tenant- in-common pleading ouster must establish that there was denial of the other co-owner's right in the properties, that the denial was sufficiently notorious and open, that the tenant-in-common out of possession had got knowledge of it, and that the tenant-in-common in possession continued to enjoy the properties in repudiation of the rights of the other co-tenants in the properties for the statutory period. as observed by the supreme court in the case of syed shah gutam ghouse mohiuddin and ors. v. syed shah ahmad mohiuddin kamisul qadri : air 1971 sc 2184, possession by one co-owner is not by itself adverse to other co- owners, and on the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. ouster is an unequivocal act of assertion of title and there has to be open denial of title to the parties who are entitled to it by excluding and ousting them. since possession is never considered adverse so long as it can be referred to a lawful title, the possession of one co-owner who is entitled as such co- owner to be in possession of the property, must be referred to that title only and cannot be considered adverse to the other co-owners. (see air 1971 sc 376 : maharajadhiraj of burdwan, udaychand mahatab chand v. subodh gopal bose and others).in karbalai begum v. mohd. sayeed : air 1981 sc 77 it was held by the apex court that mere non-participation in rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. indeed, even if this fact is admitted then the legal position would be that the co sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees.in p. lakshmi reddy v. l. lakshmi reddy : air 1957 sc 314 : the classical requirements of adverse possession and ouster were held to be nec vi nec clam nec precario. the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor; and ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. the co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. it is a settled rule of law that as between co-heirs, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowlege of the other so as to constitute ouster. in the last mentioned case, it was observed that the burden of making out a case of ouster is on the parson who claims to have displaced the lawful title of a co-heir by his adverse possession.8. even though the appellate court noticed these requirements in law, it fell into grave errors by holding that clear adverse possession has been pleaded in the written statement and it has also been pleaded when and how it commenced and came to the knowledge of the non-possessing co-owner. a bare perusal of the written statement shows the fallacy of this conclusion. there is no material on record to show that the plaintiff's right to a share was denied to his knowledge at any time and there is nothing in the evidence to indicate any overt act or other conduct on the part of the defendants to make known to the plaintiff that they have intended to hold the properties for themselves to the exclusion of the plaintiff. under almost similar circumstances, the plea of ouster was not accepted by this court in thuru khadia and ors. v. budhu khadia and ors. : 48(1979) clt 416 however, it appeirs that the plaintiff has admitted forcible occupation by defendants in respect of 1 1/2 cubits of land, in excess of the statutorily prescribed period. this is evident from the cross- examination of the plaintiff as p. w. 1 in paragraphs 6 and 7, the relevant portion of which is extracted below :'i had constructed this house 15/16 years back, after there was outbreak of housefire.........after the outbreak -of fire, at first defendants had constructed houses, then i had constructed my house. at that time i had raised objection when the defendants forcibly took possession of 11/2 cubits from my area ...'to that extent, the finding of the appellate court that the plea of adverse possession has been established cannot be upset. there is clear absence of plea and evidence in respect of the balance land in dispute. therefore, excluding the portion of land measuring 11/2 cubits, rest of the suit lands were available to be partitioned and the plaintiff was entitled to have the same partitioned. let the parties amicably partition the same within three months hence, failing which it shall be open to the plaintiff appellant to move the trial court for appointment of of a civil court amin commissioner for effecting partition.9. the appeal is allowed to the-extent indicated above. in the peculiar facts and circumstances, it would be meet to direct the parties to bear their respective costs.