Orissa High Court
Minakshi Padhi vs State Of Orissa on 27 July, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.210 of 2002
From the judgment dated 07.09.2002 passed by Shri S.K. Nanda,
learned Additional District Judge, Nabarangpur in T.A. No. 12 of 2000
confirming the judgment dated 11.11.1997 passed by Shri B.N. Das,
learned Civil Judge (Senior Division), Nabarangpur in T.S. No. 01 of
1995.
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Minakshi Padhi .... Appellant
Versus
State of Orissa .... Respondent
For Appellant ... Mr. G.N. Mishra, Advocate
For Respondent ... Mr. S. Mishra, A.S.C.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing and judgment: 27.07.2017
DR.A.K.RATH, J.This is a plaintiff's appeal against an affirming judgment in a suit for declaration of right, title, interest and permanent injunction.
02. The case of the plaintiff is that she is the owner in possession of the suit plot. She purchased the same from the previous vendor by means of a registered sale deed dated 19.09.1985 for a consideration. Her predecessor were in possession of the suit land peacefully and continuously for more than 50 years prior to sell. Since the date of purchase, she is in possession of the suit land. She constructed a thatched house over it. The defendant has no right and 2 title over the same. In the settlement operation, the settlement authorities erroneously recorded the land in the 'Sarba Sadharana Khata (Basti)'. She filed Objection Case No.21/1990/36/11 before the Assistant Settlement Officer in the rent settlement camp. By order dated 24.09.1991, the Assistant Settlement Officer rejected the objection. Since the wrong entry created a cloud over her title, she instituted T.S. No.01 of 1995 in the court of the learned Civil Judge (Senior Division), Nabarangpur seeking the relief mentioned supra.
03. The defendant entered contest and filed a written statement denying the assertions made in the plaint. It is stated that the alleged sale deed is not a valid. The same was created fraudulently for the purpose of the case. The plaintiff has no right, title and interest over the suit land. Possession of the vendor of the plaintiff over the suit land for more than 50 years has been denied. The specific case of the defendant is that the suit property is a Gramakantha Porombok land. The suit land vested in the State of Orissa on 29.12.1952 after abolition of Jeypore Estate as per the provisions of the Orissa Estate Abolition Act. In the settlement of the year 1958, the suit land was recorded in the name of State of Orissa. The defendant is in possession of the land along with other lands after vesting. In the final Record of Right published in the year 1991 the suit land has been recorded in the name of State with a kissam 'Basti'. Neither of the predecessor of the plaintiff nor the plaintiff has any right, title and interest over the suit land.
04. Stemming on the pleadings of the parties, the learned trial court struck eight issues. To substantiate the case, the plaintiff examined five witnesses and on her behalf, nine documents had been exhibited. Learned trial court came to hold that the vendor of the plaintiff had not acquired any title by way of adverse possession and as such the sale deed vide Ext.4 did not convey title in favour of the plaintiff. The Record of Right had been rightly prepared in the name of 3 the State. The suit is not maintainable for non-compliance of the Section 80 CPC. Held so, the learned trial court dismissed the application. The plaintiff unsuccessfully challenged the said judgment and decree of the learned trial court before the learned Additional District Magistrate, Nabarangpur in T.A. No. 12 of 2000, which was eventually dismissed.
05. The appeal was admitted on the following substantial question of law enumerated in ground nos. (A) and (B) of the appeal memo. The same are:-
"A). For that the impugned judgments and decrees are arbitrary, illegal and without jurisdiction and the findings therein are against the weight of materials on record.
B). For that both the Courts below misdirected themselves to consider the case of the plaintiff on the basis of adverse possession ignoring the claim by virtue of settlement of adjacent lands in favour of other persons similarly situated."
06. Mr. G.N. Mishra, learned counsel for the appellant submits that the vendor of the plaintiff was in possession of the land for more than 50 years. While in possession, he alienated a land in favour of the plaintiff by means of a registered sale deed dated 19.09.1985. The plaintiff is in possession of the land peacefully, continuously and with the hostile animus to the defendant and as such perfected title by way of adverse possession. He further submits that the record of right has been wrongly prepared in the name of State. He further submits that before institution of the suit, the plaintiff had issued notice under Section 80 CPC, which was duly served to the defendant. But the learned lower appellate court committed a manifest illegality and impropriety in holding that notice had not been served.
407. Per contra, Mr. S.Mishra, learned A.S.C. submits that there is no pleading with regard to acquisition of right by way of adverse possession. The plaintiff had failed to prove that she acquired title by way of adverse possession which is a mixed question of fact and law. Both the courts below had negatived the plea of adverse possession.
08. 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.
09. 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 5 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. The date of entry into the suit land by the vendor of the plaintiff or the plaintiff has not been mentioned. Adverse possession is a mixed question of law and fact. On an anatomy of pleadings and evidence, both oral and documentary, the courts below negatived the plea of adverse possession over the suit property. There is no perversity or illegality on the findings of the courts below. Accordingly the substantial questions of law are answered.
11. 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 27th July, 2017/Puspanjali