Orissa High Court
Prem Chand Agarwala vs Secretary To The Govt. Of Orissa And ... on 4 August, 2017
Equivalent citations: AIR 2018 (NOC) 282 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.121 of 1996
From the judgment and decree dated 10.05.1996 and 24.06.1996
respectively passed by Shri P.C. Patro, learned District Judge, Puri in
T.A. No. 33 of 1996 confirming the judgment and decree dated
24.02.1996 and 08.03.1996 respectively passed by Shri A.K. Dey,
learned Civil Judge (Senior Division), Puri in T.S. No. 335 of 1995.
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Prem Chand Agarwala .... Appellant
Versus
Secretary to the Govt. Of Orissa
& others .... Respondents
For Appellant ... Mr. Sudipto Panda, Advocate
For Respondents ... Mr. Swayambhu Mishra, A.S.C.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing and judgment: 04.08.2017
DR.A.K.RATH, J.This is plaintiff's appeal against an affirming judgment in a suit for declaration of title, confirmation of possession and permanent injunction.
02. The case of the plaintiff is that the suit land measuring an area of Ac.0.02 dec. appertaining to Khata No.314, Plot no.196 of mouza Bhabanipur was lying fallow. About 50 to 60 years back, his 2 father reclaimed the suit land and constructed a house over the same. After death of his father, 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. During consolidation operation, the suit land has been recorded in the name of P.W.D. with a note of illegal possession of the plaintiff. The plaintiff came to know about the wrong recording of the suit land in the consolidation R.O.R. on 27.04.1993. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
03. The defendants were set ex parte. To substantiate the case, the plaintiff had adduced the evidence both oral and documentary. The suit was dismissed. Unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, Puri in T.A. No. 33 of 1996, which was eventually dismissed.
04. This appeal was admitted on the following substantial questions of law:-
"(A) Whether the defendant no.2 by not recommending to the Sub-Divisional Officer for settlement of the suit land in favour of the plaintiff after accepting the long possession of the petitioner in the Encroachment Case No. 239/82-83 has contravened the provisions of the Act ?
(B) Whether the defendants are estopped from challenging the plaintiff's title over the suit land 3 in view of the order passed by defendant no.2 in Encroachment Case No. 239/82-83 ?
(C) Whether the Civil Court can sit in judgment and re-assess the evidence about continuous possession as an appellate Court over the decision rendered by the revenue authority in Land Encroachment Case ?
(D) Whether the suit in the present form is maintainable when the consolidation record of right has been published in the name of State of Orissa and there is no prayer to set aside the same ?"
05. Heard Mr. Sudipto Panda, learned advocate on behalf of Mr. Gautam Mukherji, learned counsel for the appellant and Mr. Swayambhu Mishra, learned Additional Standing Counsel.
06. Mr. Panda, learned counsel for the appellant submits that the father of the plaintiff was in possession of the suit land 60 years back. His father had constructed a house and started a stationery shop. After the death of his father, the plaintiff is in possession of the suit land. He is a registered dealer under the Orissa Sales Tax Act. He is in possession of the land for more than the statutory period. In Encroachment Case No. 239/82-83, it was held that the plaintiff is in possession of the suit land for more than 30 years. The case was dropped on 19.11.1983. The consolidation record-of-right had been wrongly published in the name of the Government and the plaintiff is in possession of the land peacefully, continuously and with the hostile animus to the defendants for more than statutory period and as such, perfected title by way of adverse possession. But the learned courts 4 below committed a manifest illegality and impropriety in dismissing the suit.
07. Per contra, Mr. S.Mishra, learned A.S.C. submits that the consolidation record-of-right had been published in the name of the Public Works Department under the Government of Orissa and there is no prayer to set aside the same.
08. In Karnataka Board of Wakf vs. Govt. of India and others, (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 5 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)
09. In Abhimanyu Jee Vrs. Dr.Gayaprasad and others, AIR 1982 Ori. 207, this Court held that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendants operated as res judicata and the finding was not available to be re-adjudicated in the civil court. But then, in the case of Life Insurance Corporation of India Vrs. M/s.India Automobiles and Co. and others, AIR 1991 SC 884, the apex Court observed that the decision rendered by Court of limited jurisdiction, that is to say, the rent control court will not operate as res judicata in the subsequent suit relating to title notwithstanding the terms of Sec.11 of the C.P.C. including Expl.VIII thereto. Taking a cue from Life Insurance Corporation of India (supra), this Court in the case of State of Orissa Vrs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 Ori. 199 held that the decision in the case of Abhimanyu Jee (supra) must be taken to have impliedly overruled. In Bhanu Mali (Dead) Nurpa Bewa (supra), a question arose that whether the decision of the Revenue Officer in the proceeding under the O.P.L.E. Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court 6 held that the decision of the Revenue Officer in the proceeding under the O.P.L.E. 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. It was further held that since the learned Single Judge in Narayana Chandra Yotish (supra) did not take note of the earlier two Bench decisions of this Court arising under the O.P.L.E. Act as well as the decisions of the apex Court rendered under an Act containing pari materia provisions, the said decision must be taken to have been wrongly decided.
10. In Gulzar Khan v. Commissioner of Consolidation and others, 76 (1993) CLT 161, the Full Bench of this Court summarised the following principles.
"36. We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances;
(i) The cause of action accruing after the closure of the consolidation operations.
(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice).
(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court."7
11. Taking a cue from the same, this Court in the case of State of Orissa and others vrs. Sibasankar Ray & another (Second Appeal No. 170 of 1993 disposed of 31.03.2017) held thus -
"11. Notwithstanding the closure of consolidation operation and publication of record-of-right, the aggrieved party may institute the suit or approach the authority under Section 37 of the OCH & PFL Act. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of- right published by the consolidation authority, the simple suit for permanent injunction is not maintainable."
12. There is no scintilla of doubt that after closure of consolidation operation, the suit is maintainable. But then the jurisdiction of the civil court is extremely limited as held by the privy counsel in the case of Secretary of State v. Mask & Co., AIR 1940 Privy Council 105. It was held -
"....It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."8
13. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, AIR 1996 SC 906, the apex Court held as follows:
".... In our opinion, even a void order or decision rendered between parties cannot be said to be non- existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo moto proceedings by Board was, that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental.........
xxx xxx xxx."
14. In the instant case, the consolidation record-of-right has been published in the name of the Public Works Department. The consolidation authorities after adjudicating the right, title and interest has published the record-of-right. No prayer has been made to set aside the same. Further the date of entry into the suit land by the father of the plaintiff or the plaintiff has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the 9 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. On a cursory perusal of the plaint, it is patent that the plaintiff has not made out a case of adverse possession. Both the courts on a threadbare analysis of the evidence record, both oral and documentary, as well as pleadings negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly.
15. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 04th August, 2017/Puspanjali