Orissa High Court
State Of Orissa And Another vs Sri Sri Radha Govinda Swami on 14 July, 2017
Equivalent citations: AIR 2018 (NOC) 151 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.121 of 1993
From the judgment and decree dated 16.2.1993 and 1.3.1993 respectively
passed by Sri Jagedananda Panda, learned Subordinate Judge, Chatrapur
in Title Appeal No.27 of 1989 reversing the judgment and decree dated
4.4.1989and 15.4.1989 respectively passed by Sri S.N. Mishra, learned Munsif, Chatrapur in T.S. No.7 of 1985.
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State of Orissa & another .... Appellants
Versus
Sri Sri Radha Govinda Swami .... Respondent
For Appellants ... Mr. P.C. Panda, AGA
For Respondent ... Mr. Buddhiram Das, Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 06.07.2017 : Date of judgment: 14.07.2017
Dr. A.K.Rath, J This is a defendants' appeal in a reversing judgment.
2. Respondent as plaintiff instituted Title Suit No.7 of 1985 in the court of the learned Munsif, Chatrapur for declaration of right, title and interest over the suit land, orders passed by the Revenue Authorities under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as "OPLE Act") are not valid and binding and permanent injunction impleading the appellants as defendants. The case of the plaintiff is that Sri Sri Radha Govinda Swamy Bije, Biripur is in peaceful possession and enjoyment of Ac.1.25 dec. of 2 land appertaining to Survey No.232/2 of village Alliabad since 40 years. The suit land was lying fallow shrouded with bushes and trees. The plaintiff reclaimed the suit land and made the same arable. The land has been erroneously recorded as "Rasta Paramboke" in the revenue records. The usufructs of the suit land are utilised for Seba Puja and Niti Kranti of the deity. The deity is in peaceful and continuous possession over the suit land with hostile animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession. The proceeding under the OPLE Act was initiated against it. The deity was in continuous possession and enjoyment over the suit land and a landless person owning less than one acre of land and no source of income. The Tahasildar, Chatrapur visited the spot, made an enquiry and recommended for declassification of the suit land from 'Rasta' to "Abada Jogya Anabadi" to the defendants on 7.6.1982 in RLC No.50 of 1982. Despite the same in RLC No.50 of 1982 the Tahasildar directed the R.I on 8.11.1983 to seize the standing crops and put the same into auction. Aggrieved by the same, the plaintiff filed OPLE Appeal No.20 of 1983 before the Sub-Divisional Officer, Chatrapur. The same having been dismissed, it filed revision before the Additional District Magistrate, Chatrapur. The revision met with same fate and also dismissed. The revisional authority directed the Tahasildar to evict the plaintiff from the suit land. The orders passed by the OPLE Authorities are illegal. Pursuant to the orders passed by the A.D.M., Chatrapur, the R.I served a notice of eviction on 2.5.1985 on the plaintiff. It is further pleaded that the plaintiff used to pay land assessment charges to the Government from time to time. The occupation of the plaintiff over the suit land is unobjectionable. The occupation relates back to the year 1945 in the ROR. There is no objection from the villagers for occupation of the suit land by the 3 deity. Since the local inspector threatened the plaintiff to evict from the suit land, the suit was filed after issuing notice seeking relief supra.
3. The defendants filed a written statement denying assertions made in the plaint. According to the defendants, the land stood recorded as "Rasta Paramboke" in the ROR. The plaintiff illegally encroached upon the suit land, cultivated the same and reduced the communal utility illegally without permission of the State. The plaintiff has not acquired title by way of adverse possession. The action taken by the defendants for eviction of the plaintiff from the suit land and seizure of paddy crop is legal and valid. The order passed by the previous Tahasildar had not been acted upon either by the defendant no.2 or appellate or revisional authority under the OPLE Act. The said order is illegal since the suit land is communal poromboke and could not be assigned. The plaintiff is in illegal possession over the suit land. The plaintiff used to pay taram assessment admitting title of the State over the suit land.
4. On the inter se pleadings of the parties, learned trial court struck as many as four issues. To prove the case, the plaintiff had examined two witnesses and on its behalf, five documents had been exhibited. No evidence was adduced by the defendants. Learned trial court came to hold that encroachment made by the plaintiff is highly objectionable since the land has been recorded in "Sarba Sadharana Khata" as "Gramya Rasta" in the ROR. The plea taken by the plaintiff that the plaintiff has perfected title by way of adverse possession has been negatived. Held so, it dismissed the suit. The plaintiff filed Title Appeal No.27 of 1989 in the court of learned Subordinate Judge, Chatrapur. Learned lower appellate court came to hold that the State has not evicted the plaintiff from the suit land within 30 years. The 4 encroachment was not objectionable. The plaintiff is in possession of the land and raised paddy crops since 1949. Despite recording of land as "Sarba Sadharana" in the current ROR, the plaintiff is in possession of the land since 1949. It further held that the plaintiff has been able to prove that it has prescribed title by way of adverse possession. The order of the revisional authority under the OPLE Act cannot take away the right of the plaintiff over the suit land. It came to a finding that the suit for declaration of title is not maintainable and dismissed the appeal. It directed the authorities under the OPLE Act for settlement of the land under Sec. 8-A of the OPLE Act holding that the plaintiff is entitled to possess the land.
5. The appeal was admitted on the following substantial question of law;
"1. Whether the suit is maintainable in absence of the appellate authority under the Orissa Prevision of Land Encroachment Act being a party to the suit ?
2. Whether the plaintiff-deity can claim ownership by adverse possession ?
3. Whether the plaintiff-deity can take the plea that it is a landless person so as to settle the land in its favour in a proceeding under the Orissa Prevention of Land Encroachment Act, 1972 ?
4. Whether the learned lower appellate court is justified in decreeing the suit when the date of entry into the suit land by the plaintiff has not been mentioned ?"
6. Heard Mr. P.C Panda, learned Addl. Government Advocate and Mr. Budhhiram Das, learned counsel for the respondent.
7. Mr. Panda, learned Addl. Government Advocate submitted that the land belongs to the Government. The marfatdar of the deity has made unauthorised encroachment of the land. In a proceeding under the OPLE Act, the order of eviction has been passed. The plaintiff-deity used to pay taram. The deity cannot maintain a suit for declaration of title on the basis of possessory title. Learned lower appellate court has no jurisdiction to direct the OPLE authorities to 5 settle the land under Sec. 8-A of the OPLE Act. To buttress his submissions, he relied on the decisions of the apex Court in the case of Kalanka Devi Sansthan v. The Maharashtra Revenue, Tribunal Nagpur and others, AIR 1970 SC 439 and State of Haryana v. Mukesh Kumar and others, AIR 2012 SC 559.
8. Per contra, Mr. Das, learned counsel for the respondent, submitted that the marfatdar of the deity is in possession of the suit land peacefully, continuously and with hostile animus to the defendants for more than the statutory period and as such, perfected title by adverse possession. The proceeding initiated under the OPLE Act is bad in law. The plaintiff is not bound by it. Though the land has been wrongly recorded as "Rasta Paramboke" in the ROR, the plaintiff used to raise paddy crops and utilised the self-proceed for the deity. Learned lower appellate court has rightly directed the OPLE Authorities to settle the land.
9. Learned lower appellate court held that the deity has perfected title by way of adverse possession. It further held that the OPLE authorities has not enquired into the matter under Sec. 8-A of the OPLE Act. The land ought to have been settled in favour of the deity under the OPLE Act. Though it has held that the suit for declaration of title is not maintainable, but directed the OPLE authorities to settle the land in accordance with Sec. 8-A of the OPLE Act and the plaintiff is entitled to possess the land till settlement is made.
10. Landless person is defined in Sec. 3(a-1) of the OPLE Act. It reads thus :
"3(a-1) "Landless person" means a person, the total extent of whose land excluding homestead together with lands of all the members of his family who are living with him in common mess, is less than one standard acre and whose total annual income of all the members of his family who are living with him in common mess, does not exceed 6 rupees six thousand and four hundred or an amount which the State Government may, by notification from time to time, specify in that behalf."
11. On a bare perusal of the said section, it is evident that the words "landless person" relate to a natural person, not a juristic person. Had it been the intention of the legislature to include the juristic person as a landless person, the words "the members of the family who are living with him in common mess, total annual income of all the members of his family who are living with him in common mess" would not have been there. The deity is a juristic person. By no stretch of imagination the deity can be said to be a "landless person".
12. In Kalanka Devi Sansthan (supra), the appellant is a private religious trust and managed by a marfatdar. Respondent no.4 was the tenant. On 30.1.1961, a notice was served on behalf of the appellant on respondent no.4 under Sec. 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Religion) Act, 1958 to terminate the tenancy without prejudice to the previous proceedings. As the notice was not complied with, an application was filed on behalf of the appellant under Sec. 36 of the Act for possession of the land. The Naib Tahasildar rejected the application on the ground that Sansthan was not a land-holder who could cultivate the land personally. His order was confirmed by the Sub-Divisional Officer and by the Maharashtra Revenue Tribunal to whom appeals were taken. Ultimately the appellant filed a petition under Article 227 of the Constitution before the High Court of Bombay which was dismissed. The question arose before the apex Court as to whether the appellant-Sansthan could take advantage of the provisions contained in the Act by which possession can be claimed from the tenant on the ground that it is required for personal cultivation. The apex Court 7 held that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. Placing reliance on Mukherjee's Hindu Law of Religious and Charitable Trust, it was held that the view is in accordance with the Hindu ideas and has been uniformly accepted in a long series of judicial decisions. The apex Court further held that cultivation of the land must be by natural persons and not by legal persons. The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or the Shebait. It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in the manager.
13. In Mukesh Kumar (supra), the apex Court came down heavily on the Government instrumentalities, including the police, attempting to possess land adversely. The apex Court held that this is a testament to the absurdity of the law and a black mark upon the justice system's legitimacy. The Government should protect the property of a citizen and not steal it. The apex Court further held that if the protectors of law become the grabbers of the property then people will be left with no protection and there would be a total anarchy in the entire country. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in the case. The deity is no exception.
14. It is highly inconceivable that the deity would file a suit for declaration of title by way of adverse possession. The people used 8 to visit the temple to offer prayer. If the deity files a suit by encroaching upon the others land, then nobody would be safe. Romans say "who will guard the Praetorian Guard"?
15. Mere possession of the suit land for long time is not suffice to hold that the plaintiff had perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. The date of entry into the suit land had not been mentioned.
16. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779, the apex Court observed as under :-
"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)
17. Undoubtedly the civil court has jurisdiction to entertain the suit for declaration of title even if order of eviction is passed 9 under the OPLE Act as held by this Court in the case of State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR
460. The question arose in Bhanu Mali (supra) that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs.
18. The civil court dehors its jurisdiction in directing the authorities to settle the authorities under Sec. 8-A of the OPLE Act. The same is not in domain of the civil court. The learned lower appellate court has travelled beyond its jurisdiction in directing the OPLE authorities for settlement of the land under Sec. 8-A of the OPLE Act. The substantial questions of law are answered accordingly.
19. In the wake of aforesaid, the appeal is allowed. The impugned judgment is set aside, resulting in dismissal of the suit. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 14th July, 2017/Pradeep 10