Orissa High Court
State Of Orissa And Another vs Jalandhara Pradhan on 10 July, 2017
Equivalent citations: AIR 2017 (NOC) 1131 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.312 of 1998
From the judgment and decree dated 23.6.1997 and 4.7.1997
respectively passed by Sri D.K. Sahu, learned District Judge, Boudh-
Kandhamal, Phulbani in T.A No.5 of 1993 reversing the judgment
and decree dated 15.10.1992 and 16.11.1992 respectively passed by
Sri M.R. Mohanty, learned Addl. Sub-Judge, Phulbani in T.S. No.11
of 1990.
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State of Orissa & another .... Appellants
Versus
Jalandhara Pradhan .... Respondent
For Appellants ... Ms. Samapika Mishra, ASC
For Respondent ... Mr. P.K. Das, Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 29.06.2017 : Date of judgment: 10.07.2017
Dr. A.K.Rath, J Defendants are the appellants against a reversing
judgment.
2. Respondent as plaintiff instituted T.S. No.11 of 1990 in
the court of the learned Addl. Subordinate Judge, Phulbani for
declaration of title, settlement of the land in his favour, permanent
injunction and other consequential reliefs impleading the appellants
as defendants. The case of the plaintiff is that the suit land originally
2
belongs to one Chaitanya Panda. He had constructed a thatched
house and was running a hotel. Chaitanya sold the property to one
Surekhamani in the year 1958 by means of an unregistered sale
deed. While the matter stood thus, Surekhamani sold the property to
one Dasura Pradhan, father of the plaintiff, in the year 1972 by
means of an unregistered sale deed for a consideration of Rs.7000/-.
The father of the plaintiff constructed a pucca building over the
same. In an amicable partition, the property fell to the share of the
plaintiff. The house was assessed by the N.A.C., Phulbani. He and
his father was absent during settlement operation. The suit land was
recorded under Anabadi Khata in the name of the State Government.
It is further pleaded that the Tahasildar, Kandhamal, defendant no.2,
initiated Encroachment Case No.86 of 1979 against him and passed
order of eviction on 22.10.1986. The R.I submitted a false report to
the defendant no.2 that he had been evicted from the suit land on
18.12.1987. Thus initiation of case is illegal and without jurisdiction. After issuing notice under Section 80 CPC to the defendants, he instituted the suit seeking the reliefs mentioned supra.
3. Defendants filed written statement denying the assertions made in the plaint. The specific case of the defendants is that the suit land is a Government land. The same was not in possession of any person at the time of settlement operation. The land was recorded under Anabadi Khata. When the plaintiff raised pucca construction over the suit land, Encroachment Case No.86 of 1979 was initiated against him. Since plaintiff was not eligible for settlement of the land, the order of eviction was passed after observing the legal formalities.
4. On the inter se pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined four witnesses and on his behalf, four documents had been 3 exhibited. No evidence was adduced by the defendants. On a threadbare analysis of the evidence, both oral and documentary as well as pleadings, learned trial court came to hold that foundation, source, authority or the basis to claim propriety right over the suit property by and through Chaitanya Panda is obscure. The plaintiff has failed to trace the title over the suit property in any manner. He had no title over the suit property and as such, the father of the plaintiff had not acquired any title. Held so, it dismissed the suit. The plaintiff filed Title Appeal No.5 of 1993 before the learned District Judge, Boudh-Kandhamal, Phulbani. Learned lower appellate court came to hold that the plaintiff had acquired title by way of adverse possession. Held so, learned lower appellate court allowed the appeal.
5. The second appeal was admitted on the following substantial question of law.
"Whether the plaintiff has made out a case of possessory title as against the order of eviction in the encroachment proceeding so as to defend their title by a decree of permanent injunction and whether the bar under Section 16 of the Orissa Prevention of Land Encroachment Act, 1972 goes against the maintainability of the suit?"
6. Ms. Mishra, learned Addl. Standing Counsel, submitted that the suit land is a Government land. The same is recorded under Anabadi Khata in the name of the State Government. There is no whisper in the pleading or evidence with regard to title of Chaitanya Panda. Even if it is believed that Chaitanya was in possession over the suit land, the same was permissive one. He had no title over the suit land. Thus any alienation and subsequent transfer is ab initio void.
7. Per contra Mr. Das, learned counsel for the respondents, submitted that the suit land originally belongs to Chaitanya. He 4 alienated the suit land in favour of Surekhamani in the year 1958 by means of an unregistered sale deed. Thereafter Surekhamani sold the property to Dasura Pradhan, father of the plaintiff, in the year 1972 by means of an unregistered sale deed. The father of the plaintiff constructed a house. Since the plaintiff was serving in the Excise Department, taking advantage of his absence, the suit land was recorded in the name of the Government. Furthermore, the plaintiff is in possession of the suit land openly, peacefully and with hostile animus to the knowledge of the defendants for more than the statutory period and as such, perfected title by way of adverse possession.
8. In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460, a question arose 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.
9. 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 5 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. On the anvil of the decision cited supra, the instant appeal may be examined. There is no pleading or evidence as to the basis of title of Chaitanya Panda except bald assertion that the suit land originally belongs to Chaitanya. The plaintiff asserts that in the year 1958, he sold the land to Surekhamani by means of an unregistered sale deed. Thereafter, Surekhamani sold the land to the father of the plaintiff by means of an unregistered sale deed. The date of entry into the suit land has not been mentioned. Furthermore, in Encroachment Case No.86 of 1979, the order of eviction was passed. The suit land had been recorded as Anabadi in the record-of-right. 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. It is highly inconceivable that the plaintiff, who was serving in the Excise Department would institute a suit claiming adverse possession over the Government property. The substantial questions of law are answered accordingly.
611. In the wake of the aforesaid, the appeal succeeds and is allowed. The impugned judgment is set aside and the judgment of the learned trial court is restored, resulting in dismissal of the suit filed by the plaintiffs. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 10th July, 2017/Pradeep