Orissa High Court
Smt. Niramal Behera Dalai vs State Of Orissa And Anoher on 13 September, 2017
Equivalent citations: AIR 2018 (NOC) 378 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
RSA No.116 of 2008
From the judgment and decree dated 25.1.2008 and 8.2.2008 respectively
passed by Sri Raghubir Dash, learned District Judge, Phulbani in T.A No.6
of 2002 reversing the judgment and decree dated 11.9.1998 and 23.9.1998
respectively passed by Sri R.C. Chinara, learned Addl. Civil Judge (Junior
Division), Baliguda in T.S. No.2 of 1997.
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Smt. Niramal Behera Dalai .... Appellant
Versus
State of Orissa & anoher .... Respondents
For Appellant ... Mr. Laxman Pradhan, Adv.
For Respondents ... Mr. R.P Mohapatra, AGA
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 07.09.2017 : Date of judgment: 13.09.2017
Dr. A.K.Rath, J Plaintiff is the appellant against a reversing judgment in a suit for declaration of right, title and interest and restraining the defendants from interfering with her possession.
2. Case of the plaintiff is that the suit land appertaining to Khata No.54, Plot No.1351/1646 area H.0.28 R. which corresponds to Khata No.232/2, Plot No.1646/1671 of Mouza-Kanjamendi originally belonged to Khageswar Patra. He had gifted some landed property including the suit land to the deity Sri Sri Rameswar Mahadev bije Nuagaon. A committee was constituted for management of the affairs of the deity. The Committee decided to lease out the landed properties of the deity to different persons for construction of houses. Pursuant to the said decision, about fifty 2 persons including the plaintiff were inducted as tenants basing upon the lease deed executed between the plaintiff and the management of the committee. The disputed property was recorded in the name of the Government. While the matter stood thus, defendant no.2 initiated Encroachment Case No.120 of 1986 against the plaintiff. Order of eviction was passed. Rent and penalty was imposed. Certificate Case No.17 of 1995 was initiated for realisation of certificate dues of Rs.24,040.58 p. for realisation of rent and penalty. With this factual scenario, the plaintiff instituted the suit seeking the reliefs mentioned supra.
3. Defendants filed a written statement denying the assertions made in the plaint. It is pleaded that the suit land is a Government land. The temple committee has no right to alienate the suit land in favour of the plaintiff. Encroachment Case No.120 of 1986 was initiated in respect of Plot No.1351 area H.0.006 as the plaintiff did not pay the rent and penalty for which a certificate case was initiated for realisation of the amount. The certificate case is pending.
4. Stemming on the pleadings of the parties, the learned trial court struck eight issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. The learned trial court came to hold that the suit land originally belonged to the temple and subsequently the temple committee had alienated the suit land to the plaintiff. It was further held that the suit land is not a Government land and that the plaintiff had not encroached upon any Government land. Held so, it decreed the suit. Assailing the judgment and decree, the defendants filed T.A No.6 of 2002 before the learned District Judge, Phulbani. The learned lower appellate court came to hold that though it is mentioned in the plaint that encroachment case in respect of Plot No.1351/1646 measuring 3 H.0.28 was initiated against the plaintiff, as a matter fact the encroachment case in respect of a portion of Plot No.1351 measuring H.0.006 was initiated. It was further held that an attempt has been made to suppress the fact that the real dispute is with regard to H.0.006 of land which is a portion of Plot No.1351 and that the plaintiff has brought the suit with a view to restrain the appellants from putting her land into auction for recovery of the rent as well as penalty for which a recovery proceeding has been initiated under the Orissa Public Demand Recovery Act. The plaintiff has created a confusion by not distinguishing or separating the portion of the land which is encroached by her and by describing the entire land appertaining to Plot No.1351/1646 to be the land in respect of which the encroachment proceeding has been initiated. The defendants have not claimed suit land to be the Government land. The plaintiff has no cause of action to file the suit. Notice under Sec. 80 CPC has not been served on the defendant before institution of the suit. Held so, it allowed the appeal.
5. The second appeal was admitted on the following substantial questions of law;
"1. Whether the learned appellate court has erred in law in relying upon the documents regarding which there was no pleading nor the same were exhibited before the trial court?
2. Whether the leaned appellate court is justified in ignoring the claim of the plaintiff-appellant over the suit property on the basis of adverse possession ?
3. Whether the learned appellate court could have allowed the appeal even though it held that the Government counsel has not conducted the case properly nor examined any witness or exhibited any documents ?
6. Heard Mr. Laxman Pradhan, learned counsel for the appellant and Mr. R.P. Mohapatra, learned Addl. Government Advocate.
47. Mr. Pradhan, learned counsel for the appellant, submitted that the suit property originally belonged to the deity Sri Sri Rameswar Mahadev bije Nuagaon. The temple committee leased out the suit land to the plaintiff. Thus initiation of the proceeding under the OPLE Act is bad in law. His alternative submission is that the plaintiff is in possession of the suit land peacefully, continuously and to the hostile animus to the defendants and as such, perfected title by way of adverse possession.
8. Mr. Mohapatra, learned counsel for the State submitted that no notice under Sec. 80 CPC was issued to the defendants before institution of the suit. Thus the plaint is liable to be rejected. He further contended that the plaintiff has mentioned that encroachment case in respect of Plot No.1351/1646 measuring H.0.28 of Mouza-Kanjamendi was initiated against her, but the encroachment case was initiated in respect of a portion of Plot No.1351 having an area of H.0.006. Defendants filed written statement stating therein that they do not claim the land appertaining to Plot No.1351/1646 of Mouza-Kanjamendi. Since the plaintiff was in unauthorised occupation of a portion of the Government land, encroachment proceeding was initiated. Order of eviction was passed imposing rent and penalty. Certificate case was initiated against her. Clandestinely the plaintiff instituted the suit in respect of other portion of the plot to stall over the certificate case.
9. In Gangappa Gurupadappa Gugwad Vrs. Rachawwa and others, AIR 1971 S.C.442, the apex Court held that where the plaintiff's cause of action is against a Government and the plaint does not show that notice under Sec. 80 claiming relief was served in terms of the said section, it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of 5 all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
10. In State of A.P and others v. Pioneer Builders, A.P, (2006) 12 SCC 119, the apex Court in para-14 and 17 of the report held thus;
"14. From a bare reading of sub-section (1) of Section 80 , it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well-settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The Section imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagdusa & v. Secy. of State for India in Council, Sawai Singhai Nirmal Chand v. Union of India and Bihari Chowdhary v. State of Bihar). The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary (supra), the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.
xxx xxx xxx
17. Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the ground(s) pleaded and application 6 of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit.
11. In Manmohan Das v. Madhunagar Powerloom Weavers' Co-operative Society and others, 1975 (1) CWR 366, this Court held that the section is mandatory and a suit without issue of such notice is liable to be dismissed in limine. Sec. 80 CPC enjoins that the plaint itself would mention that notice under Sec. 80 has been served. Sec. 80 is a condition precedent to the institution of the suit. Sec. 80 prescribes that the plaint itself would mention that the notice was served. When from the perusal of the plaint it appears that there is contravention of Sec. 80 by non-mention in the plaint that a notice had been served, the plaint should be rejected in limine without issuing summons to the defendants to appear. The obligation has been cast on the plaintiff to serve notice under Sec. 80 and mention that fact in the plaint. Absence of notice touches the root of the matter and affects the jurisdiction of the court, unless there is waiver.
12. The record reveals that no notice under Sec. 80 CPC has been issued before institution of the suit. No petition under Sec. 80 CPC has been filed for grant of leave but then learned trial court admitted the suit and proceeded to decide the matter. Thus the suit is not maintainable.
13. On a threadbare analysis of the evidence as well as pleadings, learned trial court came to hold that the defendants have not claimed the land appertaining to Plot No.1351/1646 area H.0.28 of Mouza-Kanjamendi. The defendants claimed the land appertaining to Plot No.1351 area H.0.006. The real dispute between the parties is with regard to H.0.006 of land. The plaintiff suppressed the same 7 and brought the suit with a view to restrain the defendants from putting the land into auction for recovery of rent as well as penalty for which a recovery proceeding has been initiated against her under the Orissa Public Demand Recovery Act. The plaintiff has created confusion by distinguishing or separating the land which is encroached by her and also by describing the entire land appertaining to Plot No.1351/1646.
14. Adverse possession is not a pure question of law, but a blended one of fact and law. The date of entry into the suit land has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Both the courts below, on a threadbare analysis of the evidence 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 the 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.
Dated the 13th September, 2017/Pradeep