Orissa High Court
State Of Orissa And Others vs Badukala Dilesu on 1 February, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.171 of 1993
From the judgment and decree dated 24.4.1993 and 7.5.1993 respectively
passed by Sri A.K. Senapati, learned 2nd Addl. District Judge, Berhampur
in T.A. No.18 of 1993 (T.A No.28/92 GDC) confirming the judgment and
decree dated 10.5.1991 and 28.6.1991 respectively passed by Sri S.K. Ray,
learned Munsif, Berhampur in T.S. No.93 of 1988.
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State of Orissa & others .... Appellants
Versus
Badukala Dilesu .... Respondent
For Appellants ... Mr.R.P. Mohapatra, AGA
Mr. Swayambhu Mishra, ASC
For Respondent ... Mr. Pramod Kumar Das, Adv.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 16.01.2018 : Date of judgment: 01.02.2018
Dr. A.K.Rath, J This is a defendants appeal against confirming judgment.
2. The plaintiff-respondent instituted the suit for declaration
that the provision under Sec. 8-A of the Orissa Prevention of Land
Encroachment Act (in short "the OPLE Act") is not applicable to the
OPLE Case No.18 of 1978, which was disposed of by the SDO on
dated 29.6.1978, for a direction to the SDO not to submit the case
records to the RDC and to issue patta in his favour in compliance
with the direction dated 29.6.1978 of the SDO in L.A Appeal No.80 of
1977. Case of the plaintiff was that the suit land was originally a
2
tank. The same was encroached by different persons and converted
to paddy field. The ancestor of the plaintiff was in possession of an
area of Ac.0.95 dec. since 70 to 80 years. The father of the plaintiff
was in possession of the suit land. After his death, the plaintiff and
his mother succeeded to the same. The Tahasildar, Berhampur
initiated encroachment case against his mother. His mother filed
objection. The Revenue Inspector, Berhampur permitted his mother
to cultivate Ac.1.50 dec. She could not cultivate the entire land. She
was in occupation of Ac.0.95 dec. The village officer used to maintain
Adangal each year noting down respective cultivators of the land.
Pursuant to endorsement in the Adangal, the SDO issued the order
of assignment of the suit land in favour of his mother. The
Tahasildar, Berhampur initiated Encroachment Case No.18 of 1973
against his mother. His mother was dead. He succeeded to the
property. He appeared in the said case and prayed, inter alia, for a
declaration of his title by way of adverse possession. Encroachment
case was dropped. Against the said order, he filed LEA No.80 of 1977.
The appeal was allowed on 29.6.1978 with a direction that the suit
land be recorded in the name of the plaintiff. He filed Mutation Case
No.6539 of 1978 before the Tahasildar to mutation his name. While
the matter stood thus, in the year 1982 the provision under Sec.
13(1) of the OPLE Act was deleted and Sec. 8-A was introduced. The
SDO, Berhampur issued notice to the plaintiff to produce documents
in support of his claim of adverse possession. When the SDO moved
RDC under Sec. 12(3) of the OPLE Act to review the order dated
29.6.1978, the suit has been filed.
3. The defendants filed a written statement denying the assertions made in the plaint. Case of the defendants was that for illegal and unauthorised occupation of the land, the proceeding under the OPLE Act was initiated. Notice to show cause was issued.
3The plaintiff appeared and stated that his mother obtained permanent lease of the suit land on 31.11.1943. Thereafter, the Tahasildar dropped the encroachment case. Against the said order, the plaintiff preferred LEA Case No.80 of 1977 before the SDO, Berhampur. The SDO passed an order to record the land in the name of the plaintiff. The plaintiff filed a petition to record the land in his name but the land could not be recorded as the classification of the land was not changed by the competent authority in favour of the plaintiff as per Sec. 8-A of the OPLE Act.
4. On the inter se pleadings of the parties, learned trial court has framed nine issues. Both the parties led evidence, oral and documentary, in support of their case. Learned trial court came to hold that the plaintiff is in possession of the suit land prior to 1943 and as such, perfected title by way of adverse possession. The suit is maintainable. Defendants 2 and 3 have tried to reopen the encroachment case resorting to Sec. 8-A of the OPLE Act so as to review the order under Ext.2 by the RDC. It further held that the provision of the OPLE Act as amended in the year 1982 does not apply to the facts of the case. Held so, it decreed the suit. Assailing the judgment and decree, defendants filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the learned 2nd Addl. District Judge, Berhampur and re-numbered as T.A No.18 of 1993 (T.A No.28/92 GDC). The appeal was eventually dismissed.
5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.a,b and d of the appeal memo. The same are -
"(a) Whether the Civil Court has jurisdiction to entertain the suit in view of Section 16 of the OPLE Act, 1972 ?
b. Whether Section 8-A of the OPLE Act being introduced in the year 1982 is applicable to the plaintiff's case ?
4d. Whether in the absence of any specific issue for adverse possession, the learned courts below is justified in declaring the adverse possession of the plaintiff- respondent?
6. Heard Mr. R.P. Mohapatra, learned AGA along with Mr. Swayambhu Mishra, learned ASC for the appellants and Mr. Pramod Kumar Das on behalf of Mr. Manoj Kumar Mishra, learned Senior Advocate for the respondent.
7. Learned counsel for the appellants submitted that the declaratory suit filed by the plaintiff is not maintainable in view of Sec. 34 of the Specific Relief Act. In order to obtain relief, the plaintiff must establish his right to the property, the defendant has denied or is interested in denying the title of the plaintiff and the plaintiff is not in a position to claim a further relief than a bare declaration of his title. Grant of a declaratory relief is in the discretion of the Court. The discretion should be exercised according to sound legal principles. He further submitted that in view of Sec. 41(b) of the Specific Relief Act, the SDO cannot be injuncted to submit the case record to the RDC under Sec. 12(3) of the OPLE Act. The civil court is not bound by the order under Ext.2. The civil court has jurisdiction to decide the title of the plaintiff over the suit property. Learned appellate court travelled beyond its jurisdiction in deciding additional point which was not framed as an issue. No opportunity was provided to the appellants.
8. Per contra, learned counsel for the respondents submitted that the OPLE Act was amended and Sec.8-A was inserted in the statute book by Orissa Act 13 of 1982. The SDO de hors its jurisdiction in submitting the records to the RDC to reopen the case. He further submitted that the civil court has ample jurisdiction to decide the suit. The suit land was settled by the SDO. The Member, Board of Revenue has no authority to revise the order passed by the 5 SDO. He further contended that the plaintiff has not prayed for declaration of title by way of adverse possession. The defendants admitted the possession of the plaintiff. The courts below, on consideration of the evidence on record and pleadings, came to hold that the plaintiff has right, title and interest and possession over the suit land. In view of the same, the question of framing an issue with regard to adverse possession does not arise.
9. 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 OPLE 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 OPLE 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. Notwithstanding the bar contained in Sec. 16 of the OPLE Act, the civil court has ample jurisdiction to decide the question of title.
10. Sec. 8-A of the OPLE Act was not originally in the statute book. The same was inserted by way of amendment (Orissa Act 13 of 1982). The same received assent of the President on 28.6.1982 and published in the Orissa Gazette on 16.7.1982. Sec. 8-A OPLE Act provides -
"8-A. Settlement of land in cases of encroachment for more than thirty years - (1) Where in the course of any proceeding instituted under Sections 4, 6, 7 or 8 against any person unauthorisedly occupying date of institution of the proceeding, the Tahasildar shall refer the case to the Sub-Divisional Officer.
(2) On receipt of a reference under Sub-sec. (1) the Sub-
divisional Officer shall give the Department of the State Government (other than the Revenue Department) to which the land belongs, an opportunity to show cause 6 against the settlement of the land and may make such further enquiry as he deems necessary.
(3) If after making such enquiry the Sub-divisional Officer is satisfied that such person has been in such occupation of the land as aforesaid, he may by order, settle the land with him and every such settlement shall be subject to such conditions, regarding assessment and payment of rent (including arrears of rent) as may be prescribed by rules made under this Act."
11. On a bare perusal of Sec. 8-A of the OPLE Act, it is evident that the provision shall apply to the pending proceeding.
12. No statutory authority can be injuncted to discharge the statutory function. Thus the civil court has no jurisdiction to injunct the defendant no.2 to submit the case record to the RDC. Submission of the learned counsel for the respondent that the defendant has not prayed for declaration of title by way of adverse possession is difficult to fathom. Unless the court comes to the conclusion that the plaintiff has a title over the suit land, it cannot direct the defendant to issue patta in his favour. The order under Ext.A is binding on the civil court. In paragraph-2 of the plaint, the plaintiff stated that "Though the plaintiff's mother was permitted to cultivate Ac.1.50 cents, she could not cultivate the entire extent as some portion thereof was not fit for cultivation. Her occupation was confined to only Ac.0.95 cents there from which is the suit land". Thus the possession of the plaintiff is permissive. There is no pleading that the plaintiff has perfected title by way of adverse possession. 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. Learned appellate court fell into patent error in deciding the said issue in absence of any pleading. The substantial questions of law are answered accordingly.
713. In the wake of the aforesaid, the impugned judgments are set aside. The appeal is allowed. Consequently the suit is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 1st February, 2018/Pradeep