Orissa High Court
Kamala Mallik And Others vs State Of Odisha And Others on 12 September, 2019
Equivalent citations: AIR 2020 (NOC) 309 (ORI), AIRONLINE 2019 ORI 186, (2019) 203 ALLINDCAS 616, (2019) 2 CLR 1188 (ORI)
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.391 of 2014
From the judgment and decree dated 25.04.2014 and 03.05.2014
respectively passed by Sri K.C. Barik, learned Additional District
Judge, Kendrapara in R.F.A. No.35/22 of 2013 confirming the
judgment and decree dated 22.01.2013 and 02.02.2013
respectively passed by Sri S.K. Rout, learned Civil Judge (Sr. Divn.),
Kendrapara in C.S. No.371 of 2005.
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Kamala Mallik and others .................... Appellants
---versus--
State of Odisha and others .................... Respondents
For Appellants : Mr. Ayusman Mohanta, Advocate
For Respondents : Mr. Arun Kumar Mishra, A.G.A.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing :12.09.2019 │ Date of Judgment:12.09.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This is a plaintiffs' appeal against confirming judgment in a suit for declaration of title by way of adverse possession.
02. The case of the plaintiffs is that sabak khata no.1, sabak plot no.418 of mouza-Demal was recorded in the name of the Raja of Aul, ex-landlord. The father of the plaintiffs belonged to scheduled tribe. He had no landed property. He approached the ex- landlord to lease out the suit land in his favour. The ex-landlord orally permitted him to construct a residential house over a portion of the land and cultivate the rest portion. He was in possession of 2 the land since 1932. He had constructed a residential house over a portion of the land and cultivated the vacant land. While the matter stood thus, the estate vested in the State in the year 1957. During settlement operation, he requested the settlement authorities to record the suit land in his name. The settlement authorities made an enquiry and found that he was in possession of the land. The Amin submitted report on 8.1.1979. The settlement authorities had issued draft khatian in his name. But then the final ROR had been wrongly published in the name of the State. Their father died in 26.10.1980. While the matter stood thus, the Tahasildar, Aul, defendant no.2, initiated encroachment case against them. Taking advantage of the wrong recording, the defendant no.2 intended to lease out some portions of the land to other persons. The B.D.O., Aul, defendant no.3, took steps to construct a road over a portion of the suit land. They have approached the defendant no.2 number of times to settle the suit land in their favour. But the defendant no.2 did not pay any heed. Their father was in peaceful and continuous possession of the suit land. Thereafter they are in possession of the land peacefully and continuously and as such acquired title by way of adverse possession. Plaintiffs further assert that Dhaneswar Mallik and others had instituted T.S. No.129/84 against the State in respect of a portion of sabak khata no.1, sabak plot no.418 in the court of learned Munsif, Kendrapara. The suit was decreed on 14.10.1988. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
03. The defendants were set exparte. To substantiate the case, the plaintiffs had examined three witnesses and on their behalf twenty-one documents had been exhibited. Learned trial court dismissed the suit holding that the plaintiffs have not perfected title by way of adverse possession. Unsuccessful plaintiffs filed R.F.A. 3 No.35/22 of 2013 before learned Additional District Judge, Kendrapara, which was eventually dismissed.
04. The appeal was admitted on the substantial questions of law enumerated in ground nos.2(A) and (C) of the appeal memo. The same are:
"(A) Whether on the basis of the pleadings of the plaintiffs regarding their possession through their predecessor since 1932 on the oral permission granted by the ex-landlord both for the construction of their residential house and for cultivation over the rest portion and the fact of the estate having vested to the State in the year 1957 and their continuity in possession under the State, do not bring the case of the plaintiffs under Section 8(1) of the Orissa Estate Abolition Act to be declared as tenants under the State since such pleadings get support from both oral and documentary evidence which have remained uncontroverted and whether the judgments and decree both of the learned trial court as well as the first appellate court are sustainable having not considered the case accordingly ?
(C) Whether plea of acquisition of title by prescription could be negatived when the evidence of neighbours who are sufficiently aged to have personal knowledge, i.e. P.Ws.2 and 3, aged year 60 years and 90 years respectively during their examination in court on September and October, 2012, would have been not considered as regards the case of the plaintiffs on their possession through their predecessors from 1930s ?"
05. Heard Mr. Ayusman Mohanta, learned Advocate, on behalf of Mr. A.R. Dash, learned Advocate for the appellants and Mr. Arun Kumar Mishra, learned A.G.A. for the respondents.
06. Mr. Mohanta, learned Advocate for the appellants submits that the father of the plaintiffs was in possession of the land since 1932 peacefully, continuously and with the hostile animus of the defendants. He had constructed a residential house over a portion of the land. He used to cultivate the other portion of the land. After his death, the plaintiffs are in possession of the land.
4Thus, they have perfected title by way of adverse possession. Settlement ROR has been wrongly published in the name of the State Government. ROR neither creates nor extinguishes title. He further submits that Dhaneswar Mallik and others had instituted T.S. No.129/84 against the State in the court of learned Munsif, Kendrapara in respect of a portion of sabak khata no.1, sabak plot no.418. The suit was decreed on 14.10.1988. The plaintiffs have instituted the present suit in respect of another portion of the land. Learned trial court decreed the suit. The judgment in the said suit is relevant under Sec.43 of the Indian Evidence Act. Both the courts did not delve into the same. He further submits that under Order 41 Rule 31 CPC, the judgment of the appellate court shall be in writing and shall state-(a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled and shall at the time that it is pronounced be signed and dated by the Judge for by the Judges concurring therein. But then, learned lower appellate court has not formulated the points for determination. The judgment is vitiated.
07. Per contra, Mr. Mishra, learned A.G.A. submits that the both the courts concurrently held that the plaintiffs had not perfected title by way of adverse possession.
08. Adverse possession is not a pure question of law, but a blended one of fact and law. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, 5 Indian Appeals 1900 Vol. XXVII at page 140 that "the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor".
09. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court held:
"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 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 a threadbare analysis of the evidence on record, learned lower appellate court went indepth into the matter and held that the plaintiffs had not disclosed the names of the ex-landlord, who had granted land orally to their father. No rent receipt has been filed by them. The plaintiffs failed to establish that their father was in possession of the suit land. The suit land vested in the State in 6 the year 1957 free from all encumbrances. The final ROR, Ext.2, has been published in the name of the State Government. There is no averment in the plaint that when the possession of the plaintiffs became adverse. Plaintiffs have not perfected title by way of adverse possession. These are essentially finding of facts. There is no perversity in the same.
11. In paragraph 9 of the plaint, it is stated that the plaintiffs have approached the defendant no.2 number of times to settle the land in their favour. P.W.1 also deposed the same. Thus the element of hostile animus is absent.
12. 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.
13. The plaintiffs described the suit land as follows:
"Mouza-Demal, Sabak Khata No.1, Sabik Plot No.418, Area-Ac.0.72 dec. out of Ac.1.79 dec. corresponding to Hal Plot No.681, 682, 682/876, 683/877 under Hal Khata No.314 and Plot No.690, 690/948, 683 under Hal Khata No.312."
14. Order 7 Rule 3 CPC postulates that where the subject- matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. The suit schedule land is a big patch of land. The plaintiffs claim a portion of the same. No boundary has been given.
15. Reliance placed on the judgment passed in T.S. No.129/84, Ext.8, is thoroughly misplaced. The suit was for 7 declaration of occupancy right and permanent injunction. The suit was decreed. There is neither any pleading nor evidence on record that the judgment has attained finality. The suit land pertains to another patch of land. Sec.43 of the Indian Evidence Act, 1872 cannot come to the rescue of the plaintiffs. In the instance case, both the courts concurrently held that the plaintiffs have not perfected title by way of adverse possession.
16. There is no pleading that the father of the plaintiffs was a deemed tenant. The substantial questions of law are answered accordingly.
17. 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 12th September, 2019/Basanta