Orissa High Court
R Narsama vs Dasari Hari Babu And Others on 20 December, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.276 of 1990
From the judgment and decree dated 7.7.1990 and 20.7.1990
respectively passed by Shri A.K. Dutt, learned 1st Additional District
Judge, Berhampur in T.A. No.51/79 (65/76 GDC) reversing the
judgment and decree dated 27.8.1976 and 4.9.1976 respectively
passed by Sri P.Ch. Patro, learned Munsif, Berhampur in T.S. No.6
of 1973.
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R. Narsama ............... Appellant
---versus--
Dasari Hari Babu and others .................. Respondents
For Appellant : Mr. Jeet Swarup Samal, Advocate
For Respondents : Mr. S.S. Rao, Advocate
(Respondent nos.1 to 3)
Mr. Swayambhu Mishra,
Additional Standing Counsel
(For Respondent nos.4 and 5)
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing : 15.12.2017 │ Date of Judgment:20.12.2017
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Dr. A.K. Rath, J.Defendant no.3 is the appellant against a reversing judgment.
2. Respondent nos.1 to 3 along with their father as plaintiffs instituted the suit for declaration of title, permanent and mandatory injunction. The case of the plaintiffs was that the suit property originally belonged to one Y. Simhadri. She alienated the land in favour of D. Ammalu, wife of plaintiff no.1 and mother of 2 plaintiff nos.2 to 4 by means of a registered sale deed on 31.12.62. D. Ammalu constructed a dwelling house. She used to pay the holding tax to the Berhampur Municipality. D. Ammalu instituted T.S. No.20/1964 in the court of the learned Munsif, Berhampur against R. Narasamma, defendant no.3, for permanent injunction. The suit was decreed. The judgment is binding on the State of Orissa. After death of D. Ammalu, the plaintiffs succeeded to the property. They are in possession of the suit land for more than sixty years peacefully, continuously and with the hostile animus to the State and as such perfected title by way of adverse possession. While the matter stood thus, a proceeding under Sec.7 of the Orissa Prevention of Land Encroachment Act, 1954 was initiated against them. Order of eviction was passed. They assailed the order in the appeal. The appeal was dismissed. Thereafter they filed revision, which was eventually dismissed. They filed O.J.C. Nos.423 and 457 of 1969 before this Court. The order was quashed. Thereafter L.E. Case No.357/70 was initiated against them. The plaintiff nos.2 to 4 withdrew the petition, since the provisions of the said Act was ultravires. The Assistant Settlement Officer, Berhampur, Ganjam recorded the land as 'Gharabari' in the name of the plaintiffs. The defendant no.3 instituted T.S. No.50/72 against the wife of plaintiff no.1 and the mother of plaintiff nos.2 to 4 that the decree passed in T.S. No.20/64 is void and mandatory injunction. The judgment and decree in T.S. No.20/64 will operate as res judicata. The land never belonged to the Government. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. The specific case of the defendant nos.1 and 2 was that the suit property never belonged to D. Ammalu and plaintiffs. The suit land is village site paramboke and 3 belonged to the State. The plaintiffs have no semblance of right, title and interest over the same. Y. Simhadri had no right to alienate the land in favour of D. Ammalu. D. Ammalu had no title over the same. Encroachment case was initiated. Order of eviction was passed. Plaintiff no.1 and D. Ammalu paid penalty. She filed writ petitions before this Court. Thereafter the same were withdrawn. The Act 6 of 1972 was passed with retrospective effect and the proceedings, which were taken under the old Act, were deemed to have been taken under the present Act and as such the eviction order passed against D. Ammalu should be deemed to be legal and binding on her. In T.S. No.20 of 1964, the State was not a party and as such the decree is not binding on it. In the present settlement, the suit land has been recorded as Sarbasadharan.
4. Defendant no.3 filed a written statement pleading inter alia that the suit land is a Government land. Y. Simhadri had no right, title and interest over the same. She cannot alienate the suit property. The person who purchased in court auction did not get delivery of possession of the same. State was not a party to the proceedings.
5. R. Narasama, defendant no.3, appellant herein, also instituted T.S. No.50 of 1972 in the same court for declaration that the judgment and decree in T.S. No.20 of 1964 is void, mandatory injunction impleading the wife of plaintiff no.1 and mother of plaintiff nos.2 to 4 as defendant. Both the suits were tried analogously. Parties led evidence. T.S. No.50/72 was dismissed, whereas T.S. No.6/73 was decreed in part against defendant no.3 and dismissed against defendant nos.1 and 2. Feeling aggrieved, the plaintiffs filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 1st Additional District Judge, Berhampur and renumbered as T.A. 4 No.51/79. The appeal having been dismissed, they filed S.A. No.339 of 1979 before this Court. In the said second appeal, the judgment passed by the learned lower appellate court was set aside and the matter was remitted back to the learned lower appellate court for de novo hearing with a direction to decide the question as to whether the plaintiffs have acquired title to the suit property by way of adverse possession against the defendants. After remand, learned lower appellate court allowed the appeal.
6. The second appeal was admitted on the substantial question of law enumerated in ground no.2 of the memorandum of appeal. The same is:
"Whether by the order (Ext.A) dt.1.2.1964 in M.J.C. No.281 of 1963 declaring the possession of defendant No.3 U/s.146 Cr.P.C. the possession of the trespasser (the plaintiff) would be interrupted in as much as on the dispossession of the trespasser plaintiff, the possession automatically revests in the true owner the State and whether the finding of the learned Addl. District Judge is correct in law in holding that the possession of the plaintiff is continuous ?"
7. Heard Mr. Jeet Swarup Samal on behalf of Mr. S.D. Das, learned Senior Advocate for the appellant, Mr. S.S. Rao, learned counsel for the respondent nos.1 to 3 and Mr. S. Mishra, learned A.S.C. for the respondent nos.4 and 5.
8. Mr. Samal, learned counsel for the appellant submitted that the finding of the courts below that the plaintiffs have perfected title by way of adverse possession is perverse. The plaintiffs were in unauthorised occupation of the Government land for which encroachment case was initiated against them. Order of eviction was passed. They paid penalty.
9. Per contra, Mr. Rao, learned counsel for the respondent nos.1 to 3 submitted that on a threadbare analysis of the evidence 5 on record and pleadings, both the courts held that plaintiffs have perfected title by way of adverse possession. There is no perversity in the said finding.
10. Mr. Mishra, learned A.S.C. for the respondent nos.4 and 5 contended that both the plaintiffs and defendants are unauthorised encroachers. They have no semblance of right, title and interest over the suit property.
11. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law.
12. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court observed as under :-
"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) 6
13. The date of entry into the suit land has not been mentioned. In the encroachment case, plaintiff no.1 and his wife D. Ammalu paid penalty. They admit the title of defendant nos.1 and 2. They do not assert hostile title in denial of the title of the true owner. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. The courts below did not delve into the matter and declared the title of the plaintiffs. The finding of the courts below that the plaintiffs have perfected title by way of adverse possession is perverse. The suit land has been recorded as village site paramboke. State is the paramount owner of the land.
14. T.S. No.20/1964 was instituted by D. Ammalu against R. Narsama. State of Orissa was not a party to the suit. Thus, State is not bound by the decree.
15. In the wake of aforesaid, the appeal is allowed. Consequently, the suit is dismissed. No costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 20th December, 2017/Basanta