Orissa High Court
Smt. Sureswari Biswasroy vs State Of Orissa on 25 February, 2019
Equivalent citations: AIRONLINE 2019 ORI 142, 2019 (198) AIC (SOC) 4 (ORI)
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.56 of 2005
From the judgment and decree dated 25.8.2004 and 9.9.2004
respectively passed by Shri Raghubir Dash, Additional District Judge,
Gajapati, Parlakhemundi in T.A. No.12 of 1998 confirming the
judgment and decree dated 27.10.1998 and 9.11.1998 respectively
passed by Shri P.K. Hota, Civil Judge (Jr. Divn.), Parlakhemundi in
T.S. No.24 of 1994.
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Smt. Sureswari Biswasroy .................... Appellant
---versus--
State of Orissa .................... Respondent
For Appellant : Mr. Lalit Kumar Maharana, Advocate
For Respondent : Mr. Swayambhu Mishra, A.S.C.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing :14.02.2019 │ Date of Judgment:25.02.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This appeal at the plaintiff's instance assails the affirming judgment of the Additional District Judge, Gajapati, Parlakhemundi in T.A. No.12 of 1998.
02. The case of the plaintiff is that the suit land is her rayati land, not Government land. She purchased the land from one Lalit Madhab Deo and others by means of a registered sale deed dated 15.5.1972 for a valid consideration. Possession was duly delivered to her. She is in possession of the land since the date of purchase. She had raised crops. The suit land is classified as "Rayati Billa"
meaning thereby paddy yielding agricultural and cultivable lands as per the sabik ROR. The same is not Anabadi land. In the last settlement operation, she could not take steps, for which, the suit 2 land was classified as Anabadi in the ROR. The ROR was wrongly published, wherein her vendor's name had been reflected in the remarks column. She filed mutation case. But the fate of the case is not known. She is in possession of the land peacefully, continuously and with the hostile animus of the defendant and as such perfected title by way of adverse possession. She has right, title and interest and possession over the suit land. The wrong entry in the ROR created a cloud of suspicion. With this factual scenario, she instituted the T.S. No.24 of 1994 before the Civil Judge (Jr. Divn.), Parlakhemundi for declaration of title.
03. The defendant filed the written statement pleading inter alia that Hal Plot No.1327 appertaining to Hal Khata No.495 of mouza-Jami is a portion of the Sabik Plot No.269, Khata No.8, area Ac.0.74 dec. The same was recorded in favour of Danana Kaneya and Kalamati Surana. At the time of settlement operation, one Lalit Madhaba Deo was in unauthorised possession of the suit land. The settlement authority had recorded the land in Anabadi Khata No.495, since the original owner was not in possession of the land. The plaintiff was not in possession of the land till 1988-89. Village- Jami was notified as urban area of Parlakhemundi Town. The suit land had been recorded in Anabadi Khata in the Hal ROR. In the year 1991, the plaintiff forcibly occupied the suit land. Encroachment case was initiated against her. After receipt of notice, husband of the petitioner appeared and admitted the encroachment. The R.I. submitted the report stating that the encroacher was in unauthorised occupation of the suit land. The plaintiff was the owner of Ac.15.00 dec. of land. She was not a landless person. The encroached land was not settled in her favour. The plaintiff had not perfected title by way of adverse possession. She was evicted in the encroachment case. The standing crops were put to auction by the 3 R.I. When the plaintiff again encroached upon the land, another L.E.C. No.955/91 was initiated against her. Order of eviction was passed. Penalty was imposed on her. Again the plaintiff unauthorised occupied the suit land, for which, L.E.C. Nos.204/92 and 820/93 were initiated against her. Order of eviction was passed. In Mutation Case No.180/92, the husband of the plaintiff appeared on her behalf and produced the sale deed dated 10.6.72. Lalit Madhab Deo, vendor of the plaintiff, was not the owner of the suit land. Mutation Case was rejected. No appeal was preferred against the said order.
04. Stemming on the pleadings of the parties, the trial court struck five issues. Plaintiff adduced evidence, oral and documentary. The trial court dismissed the suit holding inter alia that the plaintiff has failed to prove her right, title and interest and possession over the suit land. The unsuccessful plaintiff filed T.A. No.12/98 before the Additional District Judge, Gajapati, Parlakhemundi. The appellate court held that the plaintiff has claimed acquisition of title from her vendor and at the same time asserted that she has perfected title by way of adverse possession. She has not disclosed as to who is the owner of the suit land. There is no pleading that her vendor has title over the suit land. It further held that the defendant admitted that the plaintiff's vendor was found to be unauthorised possession of the suit land. In the year 1988-89, the plaintiff was found to be in possession the suit land. The plaintiff is in possession of the land since the date of the sale transaction, i.e., 15.5.72 vide Ext.1. The plaintiff asserted that the suit land is not the Government land. The plaintiff has not claimed adverse possession against the defendant. The true owner of the land ought to have been arrayed. Non- impletion of the recorded owner or their successors-in-interest in 4 the suit is fatal. The date of entry into the suit land has not been mentioned. Held so, it dismissed the appeal.
05. The second appeal was admitted on the following substantial questions of law.
"(1) Whether the merger, in faovur of the State had been taken place, even if prior to the sale of the owner who had no L.Rs. ?
(2) Whether the plaintiff who is a merger had title against the State by efflux of time ?
(3) Whether the courts below are justified in dismissing the suit on the ground that the vendor of the suit has no title over the suit land ?
(4) Whether the courts below are justified in dismissing the suit holding that in absence of vendor of the plaintiff as a party, the plaintiff is not entitled to declaration of title when plaintiff's relief against the State because of wrong recording in the Record of Rights ?
(5) Whether the courts below have committed error in not decreeing the suit on the ground that the plaintiff has perfected the title by way of adverse possession ? (6) Whether wrong recording of suit land as Anabadi khata can change the status of the land, which was originally recorded as stitiban?"
06. Heard Mr. Lalit Kumar Maharana, learned Advocate on behalf of Mr. Surya Prasad Mishra, learned Senior Advocate for the appellant and Mr. Swayambhu Mishra, learned A.S.C. for the respondent.
07. Mr. Maharana, learned Advocate submitted that Lalit Madhab Deo was the recorded owner of the suit land. He alienated the same to the plaintiff by means of a registered sale deed dated 15.5.1972 for a valid consideration and thereafter delivered possession to her. Plaintiff is in possession of the suit land. The suit land has been classified as paddy yielding agricultural land in the sabik ROR. It is not Anabadi land. The Hal ROR has been wrongly published in the name of the State with a note of possession of Lalit 5 Madhab Deo, his vendor. His alternative submission is that the plaintiff being possession of the suit land peacefully, continuously and with the hostile animus of the defendant, she has perfected title by way of adverse possession. The courts below are not justified in holding that the plaintiff's plea cannot succeed as her vendor is not a party to the suit. ROR neither creates title nor extinguishes title. Recording of land under Anabadi khata cannot change the status of the land.
08. Per contra, Mr. Mishra, learned A.S.C. for the respondent, submitted that Lalit Madhab Deo was in unauthorized possession of the suit land. The plaintiff was not in possession of the suit land till 1988-89. Village-Jami was notified as urban area of Parlakhenmundi Town. The suit land has been recorded in Anabadi khata in the Hal ROR. In the year 1991, the plaintiff forcibly occupied the suit land for which L.E.C. No.426/90 was initiated against her under the provisions of Orissa Prevention of Land Encroachment Act. The plaintiff is the owner of Ac.15.00 land. She is not landless person. In view of the same, land cannot be settled in her favour. In the encroachment case, Narendranath Biswasray, husband of the plaintiff, appeared and admitted the encroachment. She was evicted from the suit land in the encroachment proceeding, i.e., L.E.C. No.426/90. The paddy crops were put to auction. The plaintiff paid the bid amount of Rs.123/- to the R.I. on 11.12.90. When the plaintiff again occupied the land, Encroachment Case No.955/91 was initiated against her. Penalty was imposed on her. Again L.E.C. No.204/92 and L.E.C. No.820/93 were initiated against her. Order of eviction was passed. Lalit Madhab Deo was not the owner of the land. Plaintiff has not perfected title by way of adverse possession.
609. On a threadbare analysis of the evidence and pleadings, the appellate court came to hold that the plaintiff had claimed acquisition of title from her vendor. Simultaneously, she had also claimed title by way of adverse possession. Plaintiff had averred that the State Government is not the owner of the suit property. There is no pleading that the vendor of the plaintiff had title over the suit land. The plaintiff had failed to prove that her vendor had title over the suit land. Plaintiff was in possession of the land since the date of execution of the sale deed dated 15.5.72. There is no pleading as to against whom she has claimed adverse possession and from what point of time the possession of the plaintiff become adverse. These are essentially findings of fact. There is no perversity in the said finding.
10. The matter may be examined from another angle. Adverse possession is not a pure question of law but a blended one of fact and law. The claim of title to the property and adverse possession are in terms contradictory. In Annasaheb Bapusaheb Patil and others vs. Balwant alias Balasaheb Babusaheb Patil (dead) by Lrs. and heirs and others, (1995) 2 SCC 543, the apex Court made an in-depth analysis of claim of title and claim to adverse possession over the property. The Apex Court in paragraph-15 of the report held:
"Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all."7
11. The Apex Court in the case of L.N. Aswathama and another v. P. Prakash, (2009) 13 SCC 229 held :
"To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."
(Emphasis laid)
12. The suit was instituted in the year 1994. Even if the plaintiff is in possession of the suit land from 1972, she was not in possession of the suit land for more than thirty years. The date of entry into the suit land has not been mentioned. The plaintiff claims that she had purchased the land from one Lalit Madhab Deo and simultaneously claims that she has perfected title. The plea is mutually inconsistent. The courts below rightly held that vendor of the plaintiff has no title over the suit land. Both the courts concurrently held that plaintiff has not perfected title by way of adverse possession. The substantial questions of law are answered accordingly.
13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 25th February, 2019/Basanta