M.M.DAS, J. S.A. NO.87 OF 1990 (Decided on 19.07.2011) BANA NAIK & ANR. ……..Appellants. .Vrs. DINAMANI BEHERA ………Respondent. For Appellant - M/s. A.K.Mishra & S.Mohanty. For Respondent - M/s. B.M.Pattnaik, K.B.Pattnaik, N.P.Pattnaik & P.Ch. Mohapatra M.M. DAS, J. This appeal has been preferred against the reversing judgment in a suit filed by the respondent, being T.S. No. 16 of 1983, before the Munsif, Keonjhar. The plaintiff field the said suit with a prayer to declare his right, title and interest over the plaint Schedule ‘A’, ‘B’ and ‘C’ properties and confirm his possession thereon, in the alternative, in the event the court finds that he has been dispossessed in the meantime to pass a decree for recovery of possession through court. A further prayer for permanent injunction was made to injunct the defendants from coming over the suit land and creating disturbance in the possession of the plaintiff. This Second Appeal has been preferred by the defendant nos. 2 and 3, who are concerned with Schedule ‘C’ land. 2. Mr. Mishra, learned counsel for the appellant submits that the appeal is not concerned with Schedule ‘A’ and ‘B’ lands. With regard to Schedule ‘C’ land, the plaintiff by way of amendment introduced a pleading in the plaint that the land under Schedule ‘C’ has been under uninterrupted possession of the plaintiff to the knowledge of the recorded tenant i.e. defendant no.2 and the plaintiff has acquired title thereon on the basis of adverse possession, in consideration of which a note of possession of the plaintiff has been recorded in the settlement records. In paragraph-8 of the plaint, while claiming to be the rightful owner of the Schedule ‘A’ and ‘B’ properties, it was pleaded inconsequentially that the plaintiff has acquired title over the Schedule ‘C’ property on the basis of adverse possession. The defendant nos. 2 and 3 filed a separate written statement denying all the allegations made in the plaint with regard to ‘C’ Schedule property and further specifically denying the allegation with regard to claim of the plaintiff to have perfected his title on the basis of adverse possession over the Schedule ‘C’ property. The trial court amongst other issues framed a specific issue, being Issue no.5, to the effect “Has the plaintiff acquired right, title and possession over ‘C’ Schedule land by way of adverse possession?”. The trial court on scrutinizing the oral and documentary evidence adduced before it, while declaring the title of the plaintiff in respect of ‘A’ and ‘B’ Schedule properties and confirming his possession over the same dealing with the claim of adverse possession in Issue no.5, answered the issue against the plaintiff. At this juncture, it may be mentioned that Schedule ‘C’ property consists of two plots, being plot no. 385 measuring Ac. 0.15 decimals out of Ac.0.48 decimals and plot no. 386 measuring Ac.0.10 decimals out of Ac.0.11 decimals. The trial court while answering Issue no.5 discussing the meaning of adverse possession and recording that in Ext. 8 plot no.385 constituting an area of Ac.0.48 decimals has been recorded in the name of Bana Naik and in the remarks column, forcible possession note of one Nilamani Behera, son of Kanhei Behera has been made and in respect of plot no.386 measuring an area Ac.0.11 decimals, forcible possession note has been made in the name of the plaintiff, finding that the ingredients to establish title on the basis of adverse possession are absent in the case, rejected the claim of the plaintiff over ‘C’ Schedule property. The plaintiff being aggrieved filed T.A. No. 11 of 1986 before the learned District Judge, Keonjhar, who by judgment dated 02.01.1990 reversed the finding of the trial court, dismissing the suit of the plaintiff in respect of ‘C’ Schedule property and came to the conclusion that the plaintiff has proved to have perfected his title over the said ‘C’ Schedule property by way of adverse possession. Hence, this Second Appeal at the instance of the defendant nos. 2 and 3. 3. The Second Appeal has been admitted on the substantial question of law which is as follows : “Whether there are sufficient pleadings to support a plea of adverse possession and whether absence of such pleadings vitiates the ultimate conclusion and further whether non-consideration of evidence with regard to possession vitiates the conclusion”. 4. The pleadings in the plaint with regard to the claim of adverse possession as already stated above were vague, which was as follows: “That the plaintiff is the rightful owner of the suit lands Plaint Schedule A and B and he is entitled in law to remain in possession. The plaintiff is a simple natured School Teacher acquired title over plaint Schedule C lands on the basis of adverse possession.” It is trite to law that mere long continuance possession does not amount to adverse possession on the basis of which the possessor can claim title over the property in question. Hostile animus is an essential ingredient to show that the possession is adverse against the true owner. A party claiming title by way of adverse possession unless proves that he is in possession over the land adversely to the interest of the true owner for more than the statutory period openly as of right and peaceable without any hindrance to the knowledge of the true owner, specifically mentioning starting point of such adverse possession cannot be said to have perfected his title over the property in question by way of adverse possession. In order to prove the above aspect for claiming title by way of adverse possession, there must be pleadings of the concerned party to the above effect. In the instant case, except a vague pleading of adverse possession, as stated above, made by the plaintiff in the plaint, the necessary pleading to prove title by way of adverse possession are found absent in the plaint. The trial court on analyzing the evidence on record also came to the conclusion that the plaintiff was not residing in the suit village and he only came to the said village in 1972 and, therefore, disbelieved his claim of perfecting his title by way of adverse possession as the suit was filed within twelve years from the said year. The lower appellate court, however, relying upon the evidence of D.W.2 in respect of the note of forcible possession made against plot no.385 in the name of one Nilamani Behera, who stated that there is no Nilamani Behera, son of Kanhei Behera in his village at any time, made a conjecture that the note of possession in respect of plot no.385 must be accepted to 2 have been made in the name of the appellant. The lower appellate court also fell into an error in not meeting the reasons given by the trial court, which is essential under law, it being the final court of fact. (See Madhukar and others –v- Sangram and others, (2001) 4 SCC 756). Law with regard to adverse possession has been settled by this Court in various decisions. A reference can be made in this regard to the decision in the case of Biswanath Panda –v- Gadadhar Panda, Vol.36, 1970 Part-I, CLT-420, where this Court has categorically laid down that in the absence of a plea of adverse possession, such a question cannot be agitated in a suit. This Court while taking the above view relied upon the decision in the case of S.M. Karim –v- Mst. B.B. Sakina, 1964 SC 1254. Recently this Court in the case of Shri Pranesh Ranjan De –v- Narendra Pradhan and others, 2011 (2) OJR Act (67) being posed with a question as to the nature of the pleadings and plea required to establish title by way of adverse possession, laid down that mere occupation of the land will not prescribe any title by adverse possession in favour of the defendant and the hostile animus of possession over the property must be against the real owner. It is unnecessary to multiply citations in this case, where I find that the lower appellate court under a misconception of law came to the conclusion that the plaintiff has perfected his title over ‘C’ Schedule property by way of adverse possession. 5. In view of the above, it is found that the judgment and decree passed by the lower appellate court, impugned in the Second Appeal, is liable to be set aside and the judgment and decree passed by the trial court is to be restored in respect of ‘C’ Schedule property of the plaint. Accordingly, the Second Appeal is allowed and the judgment and decree of the lower appellate court in T.A. No. 11 of 1986 is set aside by restoring the judgment and decree of the trial court. In the circumstance, however, there shall be no order as to cost. Appeal allowed. 3