Orissa High Court
Chintamani Rout vs Collector Kalahandi And Another on 16 March, 2017
Equivalent citations: AIR 2017 (NOC) 626 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
RSA No.154 of 2005
From the judgment and decree dated 16.02.2005 and 01.03.2005
respectively passed by Shri S.N. Sahoo, learned District Judge,
Kalahandi-Nuapada at Bhawanipatna in R.F.A. No 16 of 2003 affirming
the judgment and decree dated 02.07.2003 and 14.07.2003 respectively
passed by Smt. S.R. Rath, learned Civil Judge (Junior Division),
Bhawanipatna in T.S. No. 01 of 2002.
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Chintamani Rout .... Appellant
Versus
Collector, Kalahandi
& another .... Respondents
For Appellant ... Mr. N.K. Acharya, Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 16.03.2017 : Date of judgment: 16.03.2017
DR.A.K.RATH, J.This is a plaintiff's appeal against the judgment and decree dated 16.02.2005 and 01.03.2005 respectively passed by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna in R.F.A. No 16 of 2003 affirming the judgment and decree dated 02.07.2003 and 14.07.2003 respectively passed by learned Civil Judge (Junior Division), Bhawanipatna in T.S. No. 01 of 2002.
02. The case of the plaintiff is that originally the suit land was "Anabadi Akarmanya". His forefathers had constructed a kutcha house 2 and stayed there. They occupied the suit land for more than 85 years. They were illiterate. They could not take steps to record the land in their favour. He is in peaceful and continuous possession over the suit land for more than the statutory period and as such, he has perfected title over the suit land by way of adverse possession. It is further stated that he and his forefathers were in unauthorised occupation over the suit land. In the settlement operation of the year 1987, it was indicated that the plaintiff was in occupation of the land. His name found place in the remarks column. But the same was cancelled by the Government. He is a landless person. He approached the revenue authorities to record the land in his favour. But the defendants created disturbance in his possession. With this factual scenario, the suit has been filed for declaration of right, title and interest and permanent injunction.
03. The defendants were set ex parte. To prove the case, the plaintiff had examined one witness and on his behalf, seven documents had been exhibited. Learned trial court came to hold that no document has been filed or proved by the plaintiff to show from which date and year his possession over the suit land. The plaintiff has failed to prove that he has perfected title by way of adverse possession. The suit was dismissed. Challenging the judgment and decree of the learned trial court, he filed R.F.A. No 16 of 2003 before the learned District Judge, Kalahandi-Nuapada at Bhawanipatna. Learned appellate court came to hold that the initial occupation of the plaintiff over the suit land was permissive. After abolition of estate, all the intermediary interest was vested in the State free from all encumbrances. Held so, the learned lower appellate court dismissed the appeal.
04. Mr. Acharya, learned counsel for the appellant, submits that the findings of the courts below are perverse. The forefathers of the plaintiff were in possession of the suit land for more than 85 years. They 3 have constructed a kutcha house, planted trees and dug well. They were living in the said house. After them, the plaintiff is living in the said house peacefully, continuously and to the hostile animus of the true owner and as such, has perfected title by way of adverse possession.
05. The submission of the learned counsel for the appellant is difficult to fathom. 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, Indian Appeals 1900 Vol. XXVII at page 140 that "the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor".
06. 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) 4 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)
07. Adverse possession is a mixed question of fact and law. The date of entry into the suit land by the forefather of the plaintiff or the plaintiff has not been mentioned. Moreover the plaintiff admits that his forefathers were in unauthorised occupation of the suit land. Once the plaintiff admits that his forefathers were in unauthorised occupation of the suit land, in absence of any materials available on record that from which date they were in continuous possession over suit the land with hostile animus to the defendants has not been mentioned.
08. On an anatomy of pleadings and evidence, both oral and documentary, both the courts below negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below.
09. In the result, the second appeal is dismissed, since the same does not involve any substantial question of law.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 16th March, 2017/Puspanjali 5