Orissa High Court
Lingaraj Rout And Others vs Managing Director on 11 December, 2023
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.384 of 2018
Lingaraj Rout and others .... Appellants
Mr. V. Mohapatra, Advocate
-versus-
Managing Director, Orissa
Industrial Infrastructure
Development Corporation Ltd.
Bhubaneswar and others .... Respondents
Mr. Avijit Patnaik, Advocate for Respondent No.1
Mr. Shashanka Patra, ASC for Respondent Nos.2, 4, 5 & 6
Mr. P.K. Rath, Sr. Advocate & Mr. A.P. Bose, Advocate
for Respondent No.3
Mr. Lalit Mishra, Advocate for the Intervener
CORAM:
HON'BLE SHRI JUSTICE CHITTARANJAN DASH
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DATE OF JUDGMENT : 11.12.2023
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Chittaranjan Dash, J.
1. This appeal is directed against the judgment and decree dated 19 th May, 2018 and 25th May 2018 respectively passed by the learned Additional District Judge, Bhubaneswar in R.F.A. No.43 of 2015 arising out of the judgment and decree dated 16th April, 2015 and 29th April, 2015 respectively passed by the learned Civil Judge (Senior Division), Bhubaneswar in Title Civil Suit No.648 of 2001, whereby the suit of the Plaintiffs was dismissed.
RSA No.384 of 2018 Page 1 of 29// 2 //
2. For the sake of convenience, the parties arrayed in the RSA are addressed in the manner they have been arrayed in the original Civil Suit No.648 of 2001, i.e. the Appellants as "Plaintiffs" and Respondents as "Defendants".
3. The property, which is the subject matter of dispute, relates to Plot No. 64 measuring an area of Ac.5.76 decimals under Khata No. 303 of the Settlement of the year 1931 corresponds to Plot No.65 measuring Ac.6.28 decimals under Khata No.472 of the settlement for the year 1973 which ultimately corresponds to plot No.65 measuring Ac.6.28 decimals of land under Khata No.612 of the settlement for the year 1988 of mouza Chandrasekharpur, more fully described in the schedule of the plaint.
4. The case of the Plaintiffs' in short is that, Raja Madhusudan Dev of Patia (Bhubaneswar) was the owner in possession of the suit schedule land during settlement operation 1920-21. The ancestors of the Plaintiffs obtained Hata Patta in respect of the suit land measuring Ac.5.76 decimals from Raja Madhusudan Dev in the year 1929, reclaimed the same by clearing the bushes and also cleared some adjacent area and made the same fit for cultivation and for plantation of fruit bearing trees and remained in possession of an area Ac.6.28 decimals. In the settlement ROR for the year 1931 the suit land stood recorded in the name of Raja Sahab under separate Plot No.64 against Sabik Khata No.303 with kisam 'Jhati Jungle'.
5. In the year 1931, Raja of Kanika purchased the estate of Patia at an auction and became landlord in respect of land in dispute. As the fathers of the Plaintiffs were in possession of said Sabik Plot No.64, having an area of land measuring Ac.5.76 decimals as the lessees thereof, they also continued to be in possession of the same as tenants under Raja of Kanika and paid rent in respect of their leasehold land to the Raja of Kanika. It is RSA No.384 of 2018 Page 2 of 29 // 3 // further pleaded that the fathers of the Plaintiffs while clearing the small bushes existing in the land, which they had taken on lease from the Raja of Patia, cleared some more land containing small bushes, and when the estate of Patia was purchased in auction by the Raja of Kanika, it was found the lands under possession of the fathers of the Plaintiffs was an extent of land measuring Ac.6.28 decimals. Accordingly, Ac.6.28 decimals of land was again settled by the Raja of Kanika in favour of the fathers of the Plaintiffs and a separate Khata No.303/19 was prepared in favour of Banchhanidhi Rout and others, and accordingly rent was paid to the landlord. The estates was vested in the State Government and the landlord had submitted Ekapadia to the Anchal Sasan mentioning the names of the fathers of the Plaintiffs for the said area of Ac.6.28 decimals of land and accordingly the lessee paid rent to the Government (Anchal Sasan) for the period from 1953 to 1957.
6. It is further pleaded by the Plaintiffs that the Settlement Authorities without preparing a separate Khata either in the names of the fathers of the Plaintiffs or in the names of the Plaintiffs, prepared Settlement Record of Rights of the year 1973 in the name of Govt. of Orissa with notes of possession in the name of Biswambar Rout and others in the remarks column, to the extent of land measuring Ac.6.28 decimals, in Rakhita Khata No.472, Plot No.65.
7. After the death of the forefathers, the Plaintiffs succeeded to the suit properties, remained in possession by cultivating the agricultural land and enjoying the fruits of the valuable trees like Mangoes and Jack fruits. Although the fathers of the Plaintiffs and then the Plaintiffs were / are in possession of the suit properties since 1929 and although the Plaintiffs had perfected their title over the suit properties both as lessees and/or by way of RSA No.384 of 2018 Page 3 of 29 // 4 // adverse possession, the Settlement Authorities without preparing Record of Rights in the names of the Plaintiffs, prepared the same in the name of Defendant No.1 - Managing Director, Orissa Industrial Infrastructure Development Corporation, Bhubaneswar with note of forcible possession of the Plaintiffs in the remarks column thereof on the ground that Defendant No.2 (State) had granted lease of the suit property in favour of Defendant No.1, whereas the actual delivery of possession has not been given in favour of Defendant No.1, and the Plaintiffs are still in cultivable possession of the suit properties.
8. It is the specific case of the Plaintiffs that they are in possession of the suit properties and being the settled Rayat have acquired the occupancy right over the same and at no point of time the Defendants possessed any portion of the suit properties. According to the Plaintiffs, the occupancy right held by them through their fathers has not been affected by the vesting of the estate during the period when the Orissa Estate Abolition Act came into force. However, taking advantage of wrong recording of the ROR as the Defendant Nos.1 and 2 threatened to disturb the possession of the Plaintiffs in the year 2000, they were constrained to file the suit for declaration of their occupancy right over the suit property, permanent injunction against Defendant Nos.1 and 2 and to declare the Registered Lease Deed No.825, dtd 23.01.1982 executed by Defendant No.2 in favour of Defendant No.1 as illegal and invalid document along with other reliefs in due compliance with the statutory notice required to be served under Section 80 of the CPC.
9. The Defendants contested the case by filing their written statements. The plea of the Defendants is by and large identical. The Defendants in their written statements challenged the suit on the ground of its RSA No.384 of 2018 Page 4 of 29 // 5 // maintainability, lack of cause of action, limitation and also traversed the allegations and assertion made in the plaint. The Defendants took the plea that the suit has not been properly valued and that the suit plot bearing No.65 does not corresponds to the Plot No.64 prepared by the settlement authority allegedly in the year 1931 in favour of the fathers of the Plaintiffs even though the Defendants admitted that Raja of Patia was the ex- proprietor and by virtue of an auction sale the Raja of Kanika became the proprietor of the same.
10. The specific case of the Defendants is that the suit land was originally "Jhati Jungle" and after vesting of the same under Section 3 of the OEA Act, the suit land became free from all encumbrances and accordingly during the settlement of the year 1973 the ROR was prepared in the name of Government under "Rakhit status". The Defendants also took the plea that neither the Raja of Patia had leased out the suit property in favour of the fathers of the Plaintiffs nor executed any Hata patta and the Raja of Kanika has not accepted any rent and has not submitted any 'Ekpadia' in respect of the suit property in favour of the fathers of the Plaintiffs. The Defendants also took the plea that neither the predecessors of the Plaintiffs nor the Plaintiffs themselves were and/or are in possession over the suit property in any manner whatsoever and as such they have not acquired any occupancy right or title over the same or by way of adverse possession.
11. According to the Defendants the suit land being Government land notified vide G.A. Department order dated 21st February 1981 for the land measuring Ac.231.79 decimals including the suit land was allotted in favour of IPICOL for industrial activities and accordingly lease deed was executed in favour of IDCO vide dated 23rd January, 1982 and the possession of the same was delivered. After formation of the IDCO the suit RSA No.384 of 2018 Page 5 of 29 // 6 // property was transferred to Defendant No.1 and possession was also delivered, and while the Defendant No.1 was owner in possession over the suit property along with other undisputed properties, the suit land got recorded in the name of IDCO vide Khata No.612 in the year 1988-89. While the Defendant No.1 being the owner in possession in respect of the suit property, an area measuring Ac.0.399 decimals out of the suit land was allotted to Defendant No.3 against Plot Nos.7/2 and 7/5 vide letter dated 18th February, 2008 and accordingly the lease deed was registered on 29th January, 2009 and the possession of the same was delivered to Defendant No.3 on 28th August, 2009, and Defendant No.3 is in possession over his allotted land as owner thereof. The Defendant Nos.1, 2, 3, 4 and 6 have also taken the plea that the suit is liable to be dismissed for having not adhered to the mandatory provision enumerated under Section 80 of the CPC complying with the notice under Section 80 CPC. The Defendants, therefore, claimed for dismissal of the suit.
12. The learned Civil Judge, Senior Division, Bhubaneswar having gone through the divergent pleadings of the parties, framed the following nine issues:
" (i) Is the suit maintainable ?
(ii) Whether there is any cause of action to file the suit?
(iii) Whether the suit is barred by limitation?
(iv) Whether the suit is dismissed due to non-compliance of the provision of Section 80 CPC?
(v) Whether the Plaintiffs have acquired occupancy right over the suit land and accordingly have got right, title, interest and possession over the same?RSA No.384 of 2018 Page 6 of 29
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(vi) Whether the Plaintiffs have perfected their title over the suit land by way of adverse possession?
(vii) Whether the registered lease deed No. 825 dtd 23.01.1982 is illegal and void?
(viii) Whether the plaintiffs are entitled for a decree of permanent injunction against the defendants in respect of the suit land?
(ix) To what other reliefs, the Plaintiffs are entitled?"
13. After formulating the issues, the parties adduced documentary and oral evidence where, the Plaintiffs examined three witnesses. The Plaintiffs also produced seven numbers of documents vide Ext.1 to Ext.9. On the other hand, as many as four witnesses examined on behalf of the Defendants, and the Defendant No.1, Defendant No.3, Defendant No. 2 & Defendant Nos.4 to 6 have produced separate documents vide Ext.A to Ext.P, Ext.A-1 to F- 1/C & Ext.A-2 toA-2/2 respectively.
14. The learned Civil Judge while answering the vital issue nos. (v), (vi) and (vii) held that "as the Hata Patta vide Ext.7 is not a registered document, the same cannot form the basis of induction of tenancy of the fathers of the Plaintiffs in the year 1929 in the suit properties and that as Ext.1, ROR of the year 1931 discloses that suit plot No.64 under Khata No.303 stood recorded in the name of Madhusudan Dev status as 'Anabadi' as an intermediary interest and the kisam was "Jhati Jungle", the plea of the Plaintiffs that they were in cultivation possession is not acceptable. The learned Trial court also observed that the Plaintiffs failed to prove that Raja of Kanika submitted Ekpadia in respect of the suit land in favour of the fathers of the Plaintiffs."
RSA No.384 of 2018 Page 7 of 29// 8 //
15. The learned Civil Judge while answering the issue of adverse possession claimed by the Plaintiffs observed that mere noting of forcible possession of the predecessors of the Plaintiffs in Ext.2 and Ext.3, in absence of cogent evidence as required under the law of adverse possession, cannot establish that by such possession, if any, the Plaintiffs have acquired title over the suit land and that, as the claim of the Plaintiffs that their fathers were being in permissive possession, the Plaintiffs cannot claim the title by way of adverse possession and that the Plaintiffs failed to discharge the burden to prove the plea of adverse possession. Accordingly, the learned Civil Judge held that the Plaintiffs failed to establish their title over the suit properties either being the occupancy of tenants or through adverse possession and further held that the registered lease deed dtd. 08.12.1981 cannot be held as illegal and invalid. Accordingly, the learned Civil Judge decided the other issues against the Plaintiffs, and dismissed the suit vide Judgment dated 16th April 2015 and decree dated 29th April 2015.
First Appeal
16. Being aggrieved with the findings recorded by the learned Civil Judge, Senior Division, Bhubaneswar, the Plaintiffs preferred RFA No.43 of 2015 before the learned District Judge, Khurda at Bhubaneswar, who later transferred the Appeal to the court of learned Additional District Judge, Bhubaneswar for disposal.
17. Learned Additional District Judge heard the above Appeal and after analyzing the materials on record in detail, agreed to the reasons given by the learned Trial Court and confirmed the judgment and decree dated 16th April 2015 and 29th April 2015 respectively passed by the learned Trial Court in Civil Suit No.648 of 2001.
RSA No.384 of 2018 Page 8 of 29// 9 // Second Appeal - the impugned Judgment
18. Being aggrieved by the findings recorded by the First Appellate Court, the unsuccessful Appellants/Plaintiffs preferred the present RSA No.384 of 2018. Initially, the appellants in the memorandum of appeal proposed to frame the following questions of law for consideration.
A. Whether the learned Courts below have failed to draw proper inference in accordance with the settled principles of law on the basis of the proved facts?
B. Whether the learned Courts below committed gross error in law and fact in not considering the oral evidence of the PWs, so also the documentary evidence of the Plaintiffs?
C. Whether the Hata Patta (Ext.7) issued by the ex-
intermediary in favour of the family of the Plaintiffs, the Notice (Ext.6) issued by the Tahasildar, Cuttack indicating therein that the trees standing on the suit properties are under the self cultivation of the plaintiffs, the "munda cheque" (Ext.5) issued by the Asst.
Settlement Officer on dated 12th May, 1969, settlement ROR (Ext.2 and Ext.3) prepared in the year 1973 and 1988 and the orders passed by the Settlement authorities on contest in Objection Case No.3099 (Ext.8), the learned Courts below committed error in facts and law that the Plaintiffs were tenants under the ex-intermediary in respect of the suit land and continued as such under the State Government even after vesting of the estate and thereby they became deemed tenants under the State Government ?
D. Whether the learned court below failed to appreciate that the Hata Patta (Ext.7), issued by the ex-intermediary in favour of the family of the Plaintiffs, the Notice (Ext.6), issued by the Tahasildar, Cuttack specifically indicating therein that the trees standing on the suit properties are RSA No.384 of 2018 Page 9 of 29 // 10 // under the self cultivation of the Plaintiffs, the "munda cheque" (Ext.5) issued by the Asst. Settlement Officer on dated 12.05.1969 in favour of the Plaintiffs, Settlement ROR (Ext.2 and 3) prepared in the year 1973 and 1988 and the orders passed by the settlement authorities on contest in Objection Case No.3099 (Ext.8) clearly proves the continuous and uninterrupted possession of the plaintiffs over the suit properties for more than the period prescribed under the statute and thereby they have acquired righty of occupancy in respect of the suit land under section 23, 24 and 234 of the Orissa Tenancy Act, 1913 which is bad and illegal and liable to be set aside?
E. Whether on the face of uninterrupted hostile admitted possession of the Plaintiffs over the suit land more than the prescribed period with the knowledge of the defendants, the learned Courts below ought to have held that the Plaintiffs have perfected their title over the suit properties by way of adverse possession more so when the Defendants No.2, 4, 5 and 6 did not file written statement and other defendants did not denying the pleading to that effect in the plaint?
F. Whether the learned court below ought to have held that in view of the law settled by the Hon'ble High Court in the decisions reported in Vol.57 (1984) C.L.T. Page-1 (F.B), 1986 (II) OLR-391 and 2008 (II) OLR-834, the Plaintiffs by virtue of their long possession have acquired right of occupancy in respect of the suit land under Sections 23, 24 and 234 of the Orissa Tenancy Act,1913.
G. Whether the defendant Nos. 4 to 6 being the custodian having not produced the Tenancy Ledger to substantiate their plea that the ex-intermediary did not submit Ekapadia in respect of the suit properties in favour of the family of the Plaintiffs and also not offering any explanation for not producing the same, the Courts below ought to have drawn adverse inference against them more RSA No.384 of 2018 Page 10 of 29 // 11 // so when they have not filed written statement denying the possession and tenancy of the Plaintiffs which is bad and illegal and liable to set aside?
H. Whether the learned court below failed to appreciate that the non filing of written statement by the defendant no.4 to 6 amounts to admission of the plaint case and as such the oral evidence of DW-1 is not admissible without any pleading to that effect.
I. Whether the learned courts below failed to appreciate that the defendants having not taken any step for recovery of possession of the suit land from the Plaintiffs within the period prescribed under the Limitation Act, 1963 and the Orissa Tenancy Act, 1993, the plaintiffs perfected their title and possession over the suit land and they cannot be evicted there form;
J. Whether the learned courts below failed to appreciate that 1973 ROR and 1988 ROR showing entry of possession of the Plaintiffs over the suit land is evidence of the fact of possession and the presumption under Section 13 of the Survey and Settlement Act, 1958 is available to them.
K. Whether the learned Courts below committed gross error in fact and law in coming to conclusion that the notice (Ext.6) of the Tahasildar, Cuttack cannot establish the factum of possession by the fathers of the Plaintiffs over the suit land for agricultural purpose?
L. Whether on the face of the 1973 and 1988 ROR and the order passed in Objection Case No.3099 (Ext.8), without delivery of possession, no right, title and interest accrued in favour of the defendant no.1 and 3 on the basis of incomplete and void lease deed?
M. Whether the ratio decided in the decisions reported in 2009 (I) CLR page-1100 : State of Odisha v. Harapriya RSA No.384 of 2018 Page 11 of 29 // 12 // Bisoi is applicable to the facts of the suit when there is no pleading or evidence to the effect that the valuation of the suit land in the year 1929 was more than Rs.100/-?
N. Whether the learned Courts below erred in holding that the Hata Patta is not legible and when it has been written and who signed it and for what purpose, in as much as the defendants no.4 to 6 have not denied execution of the said Hata Patta in favour of the family of the Plaintiffs by the ex-intermediary?
O. Whether the Hata Patta which is more than thirty years old document must be proved by the person by whom it has been issued or the scribe or any other person who has seen issuance of the Hata Patta ?
P. Whether the Tenancy Ledger and the "Ekpadia" in respect of the suit land though available with the respondents, having not been produced in the case, adverse inference has to be drawn against the Defendants more so when the Plaintiffs have proved their possession and tenancy through Exts.2, 3, 5, 6 and 8?
19. Considering the rival pleadings in the plaint, questions proposed in the Appeal and going through the evidence of the parties, this Court vide order dated 30.01.2019 while admitting the Appeal found the questions enumerated in Paragraph-P in the RSA to be the substantial question required to be answered herein. However, having regard to the contentions of the Plaintiffs raised before the learned courts below in the suit and subsequent assertions made in the RSA, the following substantial question that requires determination is :
"Whether the findings of the learned courts below declining to grant the relief to the Plaintiffs with regard to right of RSA No.384 of 2018 Page 12 of 29 // 13 // occupancy over the suit land and declaration of their right, title and interest over the same adverse to the true owner, i.e. the government is sustainable in the eye of law?"
Arguments of the Parties.
20. Heard Mr. V. Mohapatra, learned counsel for the Appellants and Mr. P.K. Rath, learned Counsel for the respondents.
The learned Counsel for the Appellants submitted the written note of arguments besides his oral submissions. According to the learned Counsel, the Plaintiffs/appellants adduced best evidence both in oral and documents in order to discharge their burden to prove the occupancy right so also in alternative the title acquired through adverse possession in respect of the suit schedule properties. Learned Counsel argued that notice of Anchala Adhikari (Ext.6), the Settlement ROR prepared in the year 1973 & 1988, Ext.2 and Ext.3, the order dated 02.05.1983, Ext.8, the Amin Report dated 06.04.1983, Ext.9, unequivocally proves presumption of hostile possession of the Plaintiffs over the suit land U/s.13 of the Survey and Settlement Act,1958 and proves the possession of the Plaintiffs over the suit land since 1956 in continuity and uninterruptedly with the knowledge of the Defendants and as such they have perfected their title by adverse possession. Accordingly, the learned Counsel further argued that the findings of the learned Trial Court and the Appellate Court arriving at the conclusion that the Plaintiffs are not in adverse possession of the suit land is not sustainable in fact and law, and the judgment in the case of Gurudwara Sahib -vrs- Gram Panchyat Village Sirthal & another reported in (2014) 1 SCC 669, relied upon by the learned Appellate Court is no more the good law in view of the decision of the Hon'ble Supreme Court reported in Ravindra Kaur Grewal & others -vrs.- Manjit Kaur & RSA No.384 of 2018 Page 13 of 29 // 14 // others reported in (2019) 8 SCC 729. The learned Counsel further argued that since delivery of possession of the properties in question has not been actually made in favour of Defendant no.1, the Lease Deed No.825 dated 23.01.1982 is illegal and void.
21. Per contra, the learned Counsel for the respondents argued that the courts below have rightly dismissed the Suit and R.F.A on the basis of the evidence on record. Learned counsels for the Defendants vehemently opposed the contentions raised by the learned Counsel for the Appellants and submitted that the Plaintiffs having claimed the possession by way of right of occupancy acquired through grant of 'Hata Patta' created by the ex-land lord and further failed to prove the submission of Ekpadia by the Ex-Proprietor showing their fathers as tenants rather acquiesced to the ROR finally published in favour of the Government since the year 1931 and failed to substantiate such right granted in the name of their fathers and also failed to prove the possession over the same pursuant to the commencement of the Orissa Estate Abolition Act and vesting of the land of the estate on the Government free from all encumbrances thereby looses all the characteristics of occupancy right as well as by way of adverse possession. Learned counsels submitted that the impugned judgments and decree passed by the learned courts below being in consonance with the evidence led by the parties have rightly been declined to grant the reliefs in favour of the Plaintiffs and the same require no interference.
Findings
22. Considering the averments made in the plaint as well as written notes of submission and scrutinizing the materials on record, it can be safely said that the claim of the Plaintiffs rests on the basis of Occupancy tenancy and in alternative through adverse possession.
RSA No.384 of 2018 Page 14 of 29// 15 //
23. It is the case of the Plaintiffs that the Raja Patia Madhusudan Dev in 1929 had leased out the suit land to their fathers and accordingly issued Hatta Patta (Ext.7) and they possessed the same by cultivating for agricultural purposes and that though in the year 1931 Settlement the suit land stood recorded in the name of Raja of Patia with kisam "Anabadi", but the possession of the fathers of the plaintiffs has been reflected in the remarks column. Subsequently, the suit land was purchased by Raja of Kanika in an auction sale, and the fathers of the Plaintiffs used to possess the suit property as tenants under Raja of Kanika and that at the time of vesting, Raja of Kanika submitted Ekpadia and accordingly the tenancy ledger was opened in respect of the suit land in the names of the fathers of the Plaintiffs and they continued to possess the same, paid rent and that they occupied the land under tenancy right and continued as such and their right was not affected by the vesting under the Orissa Estate Abolition Act,1951.
24. In order to substantiate the claim, the Plaintiffs besides the oral evidence adduced through three witnesses, made attempt to prove the 'Hatapatta' (Ext.7) claimed to have been issued in favour of the fathers of the Plaintiffs by the Ex-landlord under Ext.7 though under objection. Further, the Plaintiffs filed the certified copy of ROR in respect to Khata No.303 for the year 1931 under Ext.1, the certified copy of the ROR of Khata No.472 of the settlement authority for the year 1973-74 under Ext.2, the certified copy of ROR of Khata No.612 of the settlement for the year 1988 under Ext.3. The notice issued by the Anchal Adhikari bearing No.153, dated 9.6.1953 in Misc. Case No.32 of 1955-56 under Ext.6 and the certified copy of the order dated 02.05.1983 passed by the Assistant Settlement Officer in objection Case No.3099 under Ext.8.
RSA No.384 of 2018 Page 15 of 29// 16 //
25. Admittedly, Ext.7 - the Hata Patta upon which the Plaintiffs claimed their right of occupancy over the suit land in question, is an un-registered document. Though Ext.7 is not legible to know the contents and as to who issued the same in whose favour, but keeping in view the pleadings of the Plaintiffs, let me discuss as to whether the same would be helpful for the claim of the Plaintiffs. Though the Plaintiffs claimed that in the year 1929 the Raja of Patia Madhusudan Dev had leased out the property to their fathers for agricultural purpose, except the said alleged Hata Patta, no other document has been filed by the Plaintiffs to substantiate the plea. It is the case of the Plaintiffs that at the time of obtaining Hata Patta, the suit property was full of small bushes and in the 1931 Settlement ROR, the said property was recorded as "JHATI JUNGLE" in separate Plot No.64 under Khata No.303 (Anabadi), and they cleared and made it fit for cultivation and for plantation of fruit bearing trees. Nothing could be brought in evidence to support the above pleadings.
26. The Supreme Court vide order dtd.20.04.2009 in Civil Appeal No.2656 of 2009 (Arising out of SLP (C) No.10223 of 2007) in State of Orissa -vrs- Harapriya Bisoi, observed in Para-23 as under;
".... the 'Hatpatta' on the basis of which Kamala Devi has claimed her title is un unregistered document. Section-107 of the Transfer of Property Act, 1882(in short the T.P Act) read with Section 17 of the Indian Registration Act, (in short the 'Registration Act') mandates that the conveyance of title through a written instrument of any immovable property worth more than Rs.100 for a period of one year or more must be registered. If such an instrument is not registered then Section 49 of the Registration Act read with Section 91 of the Indian Evidence Act,1872 (in short the 'Evidence Act') precludes the adducing of any further evidence of the terms and contents of such a document. [See Sri Sita Maharani v. Chhedi Mahto (AIR 1955 SC 328).RSA No.384 of 2018 Page 16 of 29
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27. Besides the above, there is also a further requirement of registration of the instrument of conveyance / agricultural lease under Sections 15 and 16 of the Orissa Tenancy Act, 1913 (in short the 'Tenancy Act').
28. This court in W.P(C) No.4649 of 2005 State -vrs- Baidyanath Jena, have stated in Para.14 as under -
"...the Hatpatta relied upon being non-registered one, is inadmissible in view of the dictum of the Apex Court in Sri Sita Maharani and others v. Cheddi Mahato and others, AIR 1955 SC 328 and in Ram Nath Mandal and Journal Board of Revenue, Odisha 2022 (II) 61 others v. Jojan Mandal and others, AIR 1964 Patna (FB)1."
29. None registration of the alleged Hata Patta (Ext.7), however, can be referred for collateral purposes. In this context, PW-2 in his evidence during cross examination stated that he has not seen the rent receipts and further he cannot say the amount of rent and even the salami. He also admitted that he cannot say about the terms and conditions of Ext.7. In any case, the genuineness of the Hata Patta could have been proved, if it would have been produced in consonance with the provisions contained in Section 17(1)(d) of the Registration Act, 1908 and Section 6(i) of the Transfer of Property Act, 1982. But, the Plaintiffs have failed to prove the existence of the document in order to enable the courts to assess the evidentiary values of such Hata Patta procuring the same as mandated under Section-91 of the Evidence Act. It is settled law that, lease of any agricultural land for more than one year or from year to year basis with the fixed rate of rent must be compulsorily registered and absence of registration under the Registration Act will not pass the title. Therefore, in the instant case the evidence having not laid by the Plaintiffs to prove the document, no tenancy can be said to have been created the assertions of the Defendants that the land got vested in the Government free from all encumbrances has to be accepted.
RSA No.384 of 2018 Page 17 of 29// 18 // Assuming, for the sake of argument that the Ex-intermediary inducted the forefathers of the Plaintiffs as tenants is genuine, the fact that same is an unregistered document being an inadmissible document in evidence in view of the decision reported in AIR 1955 SC page 328 (Sita Maharani v. Chhedi Mahato and AIR 1964 Patna, page 1 Ram Nath Mandal and others v. Jojan Mandal and others), the same is of no avail to the Plaintiffs.
30. Hence, on a careful analysis of the evidence adduced from the side of the Plaintiffs, it is held that the induction of tenancy of the fathers of the Plaintiffs in the year 1929 in the suit properties on the basis of Ext.7 is held not proved.
31. The next claim of the Plaintiffs is that during the year 1931, the Raja of Kanika purchased the suit land in an auction, but the Plaintiffs' forefathers continued in possession, raised seasonal crops, enjoyed usufructs and also enjoyed fruits from mango and jack-fruit trees standing thereon. As admitted by the Plaintiffs and upon perusal of Ext.1, it is found that Suit Plot No.64 under Khata No.303 stood recorded in the name of Madhusudan Dev with status 'Anabadi' as an intermediary interest and the kisam was "Jhati Jungle". Ext.1 does not disclose the possession of the forefathers of the Plaintiffs. The Plaintiffs further claimed that, at the time of vesting as their forefathers were in possession of the suit land, they have acquired occupancy right. In support of their claim, they relied upon the notice issued by the Anchal Adhikari, Cuttack in Misc.Case No.32/1955-56 vide Ext.6. On perusal of Ext.6 it reveals that the said notice was issued to the fathers of the Plaintiffs admittedly for their forcible possession over some mango and jack-fruit trees standing over the said plot.
RSA No.384 of 2018 Page 18 of 29// 19 //
32. In the matter of State of Orissa & Ors. Vs. Harapriya Bisoi : 2009 (I) CLR SC page 1100, the Apex Court also held as follows :-
"Possession of a tenant under an intermediary on the date of vesting of the land under the Abolition Act so as to give the tenant the benefit of continuity of tenure under Section 8(1) of the said Act would have to be in the status of a raiyat actually cultivating the land."
In this context, it is apt to refer the relevant paragraphs in the decision in the matter of State of Orissa & Ors. Vs. Harapriya Bisoi (supra) as under :-
"26. By virtue of Section 8, any person who immediately before the vesting of an estate in the State Government was in possession of any holding as a tenant under an intermediary, would on and from the date of the vesting, be deemed to be a tenant of the State Government. The words "holding as a tenant"
mean the "raiyat" and not any other class of tenant: reference in this regard may be drawn to the definition of "holding" in the Orissa Tenancy Act, 1913: "3. (8) 'holding' means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy;" Section 8 thus confers protection only on the "raiyat" i.e. the actual tiller of the soil.
27. Significantly, a "lease" and "lessee" on the one hand are defined separately from the "raiyat" under the Act. Thus, the mere execution of a lease by the intermediary in favour of a person would not confer the status of a "raiyat" on the lessee nor would protect the possession of such lessee under Section 8. In fact, a "lease" would amount to a transfer of an interest of the intermediary in the land to the lessee. In such a situation, far from being a tenant protected under Section 8, the lessee would in fact step into the shoes 12 Page 13 of the intermediary with his interest being liable for confiscation and his entitlement limited to compensation from the State.
28. On the other hand, for protection under Section 8, one has to be a raiyat cultivating the land directly and having the rights of occupancy under the tenancy laws of the State. Thus, a "lessee" who is not actually cultivating the land i.e. who is not a "raiyat", would not be within the protection of Section 8 of the Act. Section 2(h) of the Act in its residuary part states that "intermediary" would cover all owners or holders of interest in land between the raiyat and the State."
RSA No.384 of 2018 Page 19 of 29// 20 //
33. In the instant case, it is admitted and proved that the kisam of the suit land was recorded as Anabadi and Jhati Jungle, i.e. forest land. The plea of the Plaintiffs that their forefathers reclaimed the suit land and were in cultivable possession has not been proved at all. Further, though it is claimed that the forefathers were paying rent to the landlord, i.e. Raja of Kanika, no rent receipt has been proved to that effect. The evidence of PWs-1, 2 and 3 regarding possession of the suit land are contradictory to each other and the same being not formidable cannot be accepted. Further, Ext.6 relied upon by the Plaintiffs is the notice in Misc. Case No.32/1955- 56, reveals that the forefathers were in illegal possession of the mango and jack-fruit trees that negatives the plea of the Plaintiffs that their forefathers were possessing the suit land for agricultural purposes. Essentially, therefore, there is no material as to submission of Ekpadia by Raja of Kanika in favour of the forefathers of the Plaintiffs. The Plaintiffs also failed to produce the tenancy ledger for the relevant period. DW-4, the R.I of the G.A. Department has categorically stated that on his personal verification he found that no Ekpadia has been submitted in respect of the suit land. Hence, the claim of cultivation in the suit land by the forefathers of the Plaintiffs till the date of vesting has no leg to stand, more so when the land is described in the Revenue records (Ext.1) as 'Jhati Jungle' and also as Anabadi, i.e. non-cultivable land.
34. If at all the evidence of PWs -1 and 2 is acceptable that the suit land was cultivated by their forefathers, in the light of the views expressed by the Apex Court in the decision State of Orissa & Ors. Vs. Harapriya Biso (supra), the aforesaid evidence, without further details, has to be construed as wholly unacceptable proof of cultivation of the suit land by the Plaintiffs' predecessors on the date of vesting of the land under the provisions of the Estate Abolition Act. It is the settled principle of law that RSA No.384 of 2018 Page 20 of 29 // 21 // "what is relevant under Section 8(1) of the Abolition Act is to confer the benefit of continuity of tenure to the tenant is possession as well as cultivation of the land as on the date of vesting." No specific evidence in this regard has been laid by the Plaintiffs except a bald and omnibus claim that the land was cultivated by their forefathers. The Plaintiffs, therefore, utterly failed to prove the possession and cultivation of the Suit land by them as on the date of vesting.
35. Hence, on careful analysis of the evidence adduced from the side of the Plaintiffs and keeping in view of the dictum in the matter of State of Orissa & Ors. Vs. Harapriya Biso (supra), it is found that the Plaintiffs have measurably failed to establish the plea of occupancy right over the suit land and as such they cannot be said to have acquired right by way of occupancy right.
36. The next issue as framed by the learned Trial Court is "Whether the Plaintiffs have perfected their title over the suit land by way of adverse possession." On perusal of the impugned judgments of the learned Trial Court and learned First Appellate Court, both of them have answered the same against the Plaintiffs.
37. In the plaint, the Plaintiffs have alternatively pleaded that their predecessors and after them they themselves have been possessing the suit land as of right for more than the statutory period and thereby they have acquired title over the suit land by way of adverse possession. The Learned Counsel Mr. Mohapatra strenuously argued that the documents such as notice issued by the Anchala Adhikari (Ext.6), the Settlement ROR prepared in the year 1973 & 1988 under Ext.2 and Ext.3, the order dated 02.05.1983, Ext.8, the Amin Report dated 06.04.1983 and Ext.9 proves presumption of hostile possession of the Plaintiffs over the suit land since RSA No.384 of 2018 Page 21 of 29 // 22 // 1956 and they have perfected their title on the suit land by adverse possession.
38. Admittedly, in the instant case, the Plaintiffs claimed their right over the government land on the basis of the aforesaid documents. The principle of adverse possession has been defined by the Privy Council in Perry v. Clissold in the following terms:
"It cannot be disputed that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
39. The Supreme Court in catena of decisions have observed the following principles.
"Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of Khulna, the Privy Council held that -
"The possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor."
(b) Further, in the matter of Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore, it was observed that -
RSA No.384 of 2018 Page 22 of 29// 23 // "It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening."
(c) In Parsinni v. Sukhil, it was held that :
"Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. 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."
(d) In Karnataka Board of Wakf v. Govt. of India, it was held:-
"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."
(e) In a recent case of M Siddiq (D) through LRs v.
Mahant Suresh Das & Ors. (five-Judges Bench), it is reiterated that :
"A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence."
40. In Thakur Kishan Singh v. Arvind Kumar (two-Judges Bench), the Apex Court held as under -
RSA No.384 of 2018 Page 23 of 29// 24 // "5. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession..."
41. In Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two- Judges Bench), the Apex Court held as under :
"1. ...It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough."
In Karnataka Board of Wakf (supra), it was observed :-
"...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature..."
42. In Chatti Konati Rao v. Palle Venkata Subba Rao (two-Judges Bench), the Apex Court held as follows :
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed..."
43. The prior position of law as set out in Gurudwara Sahab v. Gram Panchayat Village Sirthala (two-Judges Bench) was that the plea of adverse possession can be used only as a shield by the Defendant and not RSA No.384 of 2018 Page 24 of 29 // 25 // as a sword by the Plaintiff. However, the position of law enunciated therein was changed later by the decision of the Supreme Court in the matter of Ravinder Kaur Grewal & others v. Manjit Kaur & others, wherein the Court held as under -
"...Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..."
44. In State of Rajasthan v. Harphool Singh (two-Judge Bench), it was held by the Apex Court as under:
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."
45. Further, the Apex Court in Mandal Revenue Officer v. Goundla Venkaiah (two-Judges Bench) held as follows:
"...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."
46. In the case of V. Rajeshwari v. T.C. Saravanabava (two-Judges Bench), the Apex Court held as under:
"...A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal..."
47. In the matter of Harphool Singh (supra), the Apex Court observed as under:
RSA No.384 of 2018 Page 25 of 29// 26 // "12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in] adverted to the ordinary classical requirement - that it P. Lakshmi Reddy v. L. Lakshmi Reddy [AIR 1957 SC 314 : 1957 SCR 195should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secy. of State for India in Council v.
Debendra Lal Khan [(1933) 61 IA 78 : 1934 All LJ 153 (PC)] strongly relied on for the respondents, the Court laid down further that it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543: AIR 1995 SC 895] it was observed that a claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such claim, the courts must 27 have regard to the animus of the person doing those acts."
(Emphasis supplied)
48. In the instant case, admittedly the Plaintiffs on the basis of adverse possession seek to be declared the owners over the suit land belonging to the Government. Hence, in view of the authoritative decisions of the Apex Court as held above, the claim of the Plaintiffs is to be taken "more seriously". It is admitted that the suit land belongs to Government, hence the burden of proof once shifted, it is for the Plaintiffs to establish their possession to be openly hostile to the rights of the Government. Since the RSA No.384 of 2018 Page 26 of 29 // 27 // Plaintiffs are trying to defeat the rights of the true owner, it is for them to clearly plead and establish all such facts necessary to establish their case.
49. The Plaintiffs produced the certified copies of ROR of the year 1973 (Ext.2) and ROR of the year 1988 (Ext.3). Ext.2 reveals that the suit property is recorded as "UNNATA YOJANA JOGYA" and in the remarks column thereof as to an endorsement that the ancestors of the Plaintiffs are enjoying 27 mango and one jack-fruit trees standing thereon. Further, Ext.3 reveals that the suit property is recorded in favour of Defendant No.1 and the kisam thereof is Gharabari-2 with notes of "forcible possession" in respect of 27 mango trees and one jack-fruit tree standing over the said property by the Plaintiffs and their forefathers. As discussed, no such plea has been propounded specifically by the Plaintiffs in the plaint with regard to the requirements of adverse possession. The evidence of Plaintiffs' witnesses does not in any manner establish the factum of the Plaintiffs having ever claimed the possession hostile to that of the true owner, i.e. the State. Ext.2 and Ext.3 simply disclose with regard to the illegal possession in respect to some trees claimed to have been planted by the forefathers of the Plaintiffs standing for a long period. PWs.-1, 2 and 3 have not stated specifically the age of the trees planted by their forefathers on the suit land, rather the evidence is that their forefathers were in cultivable possession. In essence, it can very well be said that the Plaintiffs are not clear as to the manner of acquisition of the suit property by their forefathers. At one hand they claim that they were/are owners of the land on the basis of Hata patta, and on the other hand they pleaded adverse possession, which is self- contradictory. It is a matter of record that Ext.6, the notice bearing No.153 dated 09.06.1955 issued by the Anchal Adhikari, Cuttack in Misc. Case No.32/1955-1956 addressed to the forefathers of the Plaintiffs candidly showing that they were forcibly collecting the usufructs of mango and jack-
RSA No.384 of 2018 Page 27 of 29// 28 // fruit trees standing over the Anabadi lands and directed not to collect the same in future, which was never challenged by the Plaintiffs in any proceeding against the said notice, which substantially proves that their forefathers were in illegal possession of the trees too. On a careful analysis, therefore, the testimonies upon which the Plaintiffs seek to place reliance on their long-term possession over the land in question, are not of such a nature to satisfy the requirement of a "more serious and effective" one.
50. Thus, mere possession of some trees for a long period, in absence of specific pleadings as to an adverse possession or possession by authentic means leads to inconsistency evidence brought through the witnesses that does not translate into either right claimed by the Plaintiffs.
51. It is needless to mention here that, the relief claimed in the plaint is not clear as to whether the Plaintiffs claim right, title and interest over the suit land as occupancy Rayats or by adverse possession.
52. It is held by this Court in the case of Champa Bati Bewa @ Kabi and others Vs. Kanhu Mallik and others, reported in Vol.33 (1991) O.J.D.154 (Civil), an occupancy right cannot be claimed by way of adverse possession. It necessarily infers that the requirements for claim of title as an occupancy Rayat and that of adverse possession are not one and the same, and in fact are mutually opposite.
53. In view of the discussions made in the foregoing paragraphs, the substantial questions in this Appeal are answered in negative, and as such the Appeal fails. The impugned judgments of the learned courts below stand confirmed. In consequence, the Lease granted in favour of the Defendants is held valid.
RSA No.384 of 2018 Page 28 of 29// 29 //
54. The Appeal being devoid of merit stands dismissed. Parties are to bear their respective cost of litigation.
(Chittaranjan Dash) Judge Orissa High Court, Cuttack Dated, the 11th December, 2023.
S.K. Parida, ADR-cum-APS Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 14-Dec-2023 16:14:40 RSA No.384 of 2018 Page 29 of 29