Orissa High Court
Bairagi Sahoo And Another vs State Of Orissa And Another on 11 April, 2019
Equivalent citations: AIRONLINE 2019 ORI 62
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.569 of 2005
From the judgment and decree dated 23.8.2005 and 6.9.2005
respectively passed by Sri S.N. Sahoo, learned District Judge,
Kalahandi-Nuapada at Bhawanipatna in T.A. No.12 of 2002
reversing the judgment and decree dated 20.11.2001 and
24.11.2001 respectively passed by Shri R.K. Nanda, learned Civil
Judge (Sr. Divn.), Bhawanipatna in T.S. No.91 of 1996.
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Bairagi Sahoo and another .................... Appellants
---versus--
State of Orissa and another .................... Respondents
For Appellants : Mr. N.K. Acharya, Advocate
For Respondents : Miss Samapika Mishra, A.S.C.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing :11.04.2019 │ Date of Judgment:11.04.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. Plaintiffs are the appellants against a reversing judgment in a suit for declaration of title by way of adverse possession, confirmation of possession and permanent injunction.
02. Case of the plaintiffs is that the suit land belonged to Krushna Chandra Sahoo, father of plaintiff no.1. He was the ex- Gountia of the suit village. He was in possession of Ac.22.47 dec. of land on the basis of rayati parcha dated 14.9.51. He sold an area Ac.15.09 dec. of land. After sale, he was in possession of rest land measuring area Ac.6.38 dec. (suit land). He became old and physically disabled. In the year 1957, he entrusted, plaintiff no.1, to cultivate the suit land. Thereafter, the plaintiffs are in possession of 2 the suit land peacefully, continuously and with the hostile animus to the defendants for more than the statutory period and as such perfected title by way of adverse possession. It is further pleaded that during the settlement operation of the year 1955-56, an area Ac.3.70 dec. of land out of the suit land was recorded as rayati status. The rest Ac.2.68 dec. of land was wrongly recorded as Gochar, Pani Nala and road. The suit land is their rayati land. During settlement operation of the year 1986, the Amin submitted the report stating therein that they are in possession of the suit land and prepared yadast. But then, the A.S.O. passed the order that they are in possession of the land illegally. Their note of possession had been reflected in the remarks column of the ROR. The defendants have no semblance of right, title and interest over the same. While the matter stood thus, the defendants initiated encroachment case against them in the year 1990 and 1996 respectively. They have paid Rs.1024.80 to the defendants. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
03. The defendants filed written statement pleading inter alia that during the Darbar administration, the Gountias were not entitled to possess any rayati land, nor any rayati parcha was issued in their name. There was no rayati land in the name of Krushna Chandra Sahoo. The suit land had been recorded in the name of the State in the ROR published in the year 1955-56 and 1988-89 respectively. A part of the suit land is used as road and the other part has been classified as Gochar. The suit land has been used as grazing field. The State is the paramount owner of the suit land. The alleged rayati parcha is a fraudulent one. Since the plaintiffs were in illegal possession of the land, Encroachment Case Nos.1789/95 and 1790/95 had been initiated against them under the Orissa 3 Prevention of Land Encroachment Act ("OPLE Act"). Plaintiffs had vacated the suit land on 11.6.1996. Again they encroached upon the suit land, for which, Encroachment Case Nos.89/90 and 90/90 had been initiated against them. Penalty was imposed. The plaintiffs had vacated the suit land.
04. Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the plaintiffs are cultivating the suit land. The possession is open and hostile to the knowledge of the defendants. By the time encroachment case was initiated in the year 1990, the plaintiffs had perfected title by way of adverse possession. Felt aggrieved, the defendants filed T.A. No.12 of 2002 before learned District Judge, Kalahandi-Nuapada. Learned appellate court came to hold that simply because the note of possession of the plaintiffs had been reflected in the ROR of 1955-56 and the witness deposed that the plaintiffs were possessing the land, it is not suffice to hold that it is the starting point of adverse possession. In the encroachment case, they have paid the fine. They admitted the title of the State. Held so, it reversed the judgment and decree of learned trial court.
05. This appeal was admitted on the following substantial questions of law.
"1. Whether the observation of the learned 1st appellate court that note of forcible possession of the suit land by the appellant in the R.O.R and the statement of the P.Ws that the appellant is in possession of the disputed land from a particular time does not amount to knowledge of the defendants about open and hostile possession of the appellant over the suit land is legally acceptable ?
2. Whether the plaintiffs can institute the suit for declaration of title by way of adverse possession ?"4
06. Heard Mr. N.K. Acharya, learned Advocate for the appellants and Miss Samapika Mishra, learned A.S.C. for the respondents.
07. Mr. Acharya, learned Advocate for the appellants submits that Krushna Chandra Sahoo, father of plaintiff no.1, was the Gountia of the village. The suit land is the rayati land of Krushna Chandra Sahoo. In the settlement ROR, the same has been wrongly recorded in the name of the State. In the remarks column, the names of the plaintiffs had been reflected. By the time, the encroachment cases had been initiated against the plaintiffs, they had perfected title by way of adverse possession. He further contends that the possession of the plaintiffs was within the knowledge of the defendants. Learned trial court decreed the suit, but then learned appellate court reversed the same on untenable and unsupportable grounds. Payment of fine in encroachment case does not take away the right of the plaintiffs. To buttress the submission, he places reliance on the decision of the apex Court in the case of Kshitish Chandra Bose vs. Commissioner of Ranchi, AIR 1981 SC 707 and this Court in the cases of Debendranath Sarangi vs. Kulamani Sarangi and others, AIR 1974 Ori.166, Cuttack Municipality vs. Sk. Khairati (and after him) Jaitan Bibi and others, 1983 (II) OLR--475 and A. Venkat Rao vs. State of Orissa and another, AIR 2013 Ori.159.
08. Per contra, Miss Mishra, learned A.S.C. for the respondents, submits that the date of entry into the suit land has not been mentioned. In encroachment cases, plaintiffs had paid penalty. There is no hostile animus. Plaintiffs have taken inconsistence plea.
509. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court held:
"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." (emphasis laid)
10. Reverting to the facts of the case and keeping in view the enunciation of law laid down in the case of Karnataka Board of Wakf, this Court finds that Krushna Chandra Sahoo was the Gountia of the village. The Gounti system was abolished in the State. The land was not settled in favour of Gountia. Plaintiffs assert title by way of adverse possession. On a bare reading of the plaint, it is evident that no date of entry into the suit land has been mentioned. P.W.1, plaintiff no.1, in his deposition stated that in the encroachment case, he has paid fine. Thus the element of hostile 6 animus is absent. Learned appellate court on an anatomy of pleadings and evidence came to hold that plaintiffs have not perfected title by way of adverse possession. There is no perversity in the said finding.
11. Taking a cue from the decision of the apex Court in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669, this Court in the case of Nabin Chandra Mohanta vs. State of Orissa (R.S.A. No.396 of 2004 disposed of on 22.02.2019) held :
"10. In Gurdwara Sahib, the plaintiff-appellant filed the suit for decree of declaration to the effect that it had become the owner of the suit property by adverse possession, correction of ROR and permanent injunction. The suit was partly decreed by the trial court granting relief of injunction. The first appeal against that part of the judgment, whereby relief of declaration was denied was dismissed by the Additional District Judge. In the second appeal, the relief of declaration by way of adverse possession was denied holding that such a suit is not maintainable. The second appeal was dismissed. The matter travelled to the Apex Court. The Apex Court held:
"8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
(emphasis laid)
11. ......In no uncertain terms, the Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. The same is ratio decidendi. The High Court is bound under Article 141 of the Constitution of India....."
712. Though the plaintiffs claimed title on the basis of rayati parcha dated 14.9.51, simultaneously they claimed title by way of adverse possession. The plea is mutually inconsistent.
13. The claim of title to the property and adverse possession are in terms contradictory. The Apex Court in the case of L.N. Aswathama and another v. P. Prakash, (2009) 13 SCC 229 held :
"To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."
(Emphasis laid)
14. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others vs. Mirza Abdul Gaffer and another, (1996) 1 SCC 639 held:
"As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.8
15. The judgments cited by Mr. Acharya, learned Advocate for the appellants are distinguishable on facts. In Kshitsh Chandra Bose, the apex Court held that all that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner.
16. Taking a cue from the decision of Privy Council in the case of Secretary of State v. Debendra Lal Khan, AIR 1934 PC 23, this Court in Debendranath Sarangi held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario.
17. In Sk. Khairati (and after him) Jaitan Bibi and others, this Court held that normally a Record-of-Rights does not confer any title, but where it is asserted that title inheres in a particular person and in support of such claim of title, old Record-of-Rights is produced, it would be prudent for the court to attach importance to such document and in certain cases courts have been treated such entry as the basis of title.
18. In A. Venkata Rao, this Court held that even the State by way of preparation of the 'Adangal' (Ext.1) has acknowledged the possession of the plaintiff. It further held that possession in order to be adverse to the true owner need not be specifically brought to the knowledge of the true owner. It is sufficient if it is open and without any attempt at concealment.
19. But in none of the decisions, the maintainability of the suit for declaration of title on the basis of adverse possession was an issue. In Gurdwara Sahib, the apex Court in no uncertain terms held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession 9 has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. The substantial questions of law are answered accordingly.
20. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 11th April, 2019/Basanta