Orissa High Court
Babaji Kandi And Another vs Bhikari Sahoo .Dead. Through L.Rs on 22 March, 2018
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.5 of 1996
From the judgment and decree dated 22.11.1995 and 11.12.1995
respectively passed by Sri P.B. Patnaik, learned Addl. District Judge,
Jajpur in Title Appeal No.45 of 1992 confirming the judgment and decree
dated 25.8.1992 and 14.9.1992 passed by Sri B.K. Nayak, learned Munsif,
Jajpur in Title Suit No.52 of 1988.
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Babaji Kandi & another .... Appellants
Versus
Bhikari Sahoo (dead) through
L.Rs .... Respondents
For Appellants ... Mr.D.P. Mohanty, Adv.
For Respondents ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 22.03.2018 : Date of judgment: 22.03.2018
Dr. A.K.Rath, J Defendants 1 and 2 are the appellants against a confirming
judgment.
2. Plaintiff-respondent instituted the suit for declaration of title, confirmation of possession, recovery of possession in case he is dispossessed during pendency of the suit and permanent injunction. Case of the plaintiff was that Plot No.1323 of Village-Rishipur is his ancestral homestead land. Plot No.1324 is adjoining to the north of the suit plot. His father got southern side Plot No.1324, Ac.0.04 dec. from the ex-landlord Govinda Chandra Misra on 10.4.1991 by way of permanent lease. A plain paper lease deed was executed and delivery 2 of possession was made to him. His father amalgamated the same with his homestead land. After abolition of estate, the ex-landlord did not submit the rent-roll in the name of his father. He filed an application before the Tahasildar, Jajpur in the year 1976 for preparation of rent-roll in respect of Plot No.1324. Lease Case No.4055/76 under Secs.6 and 7 of the OEA Act was registered. No objection was filed. Defendant no.1 filed Lease Case No.2676 of 1984 for fixation of rent in respect of the same land. Both the cases were dropped. While the matter stood thus, the defendant filed an application under Sec. 9(1)A of the OLR Act in respect of plot no.1324. The Revenue Officer, Jajpur declared the defendants as raiyats. The order passed by the Tahasildar is illegal and not binding. The defendant is the owner of plot no.1484/2237 and plot no.1323. Since the defendant has other lands, Sec. 9(I)A of the OLR Act is not maintainable. The order is not binding on him. Out of Ac.0.04 dec. of land appertaining to Plot No.1324, Ac.0.01 dec. was acquired for embankment of the river. He received compensation from the Government. The defendants were parties to the same. He is in possession of Ac.0.03 dec. of land. When the defendant threatened to dispossess him, he filed the suit seeking the reliefs mentioned supra.
3. Defendants 1 to 3 entered appearance and filed a written statement denying the assertions made in the plaint. Case of the defendants 1 to 3 is that originally Govinda Chandra Misra was the landlord. He leased out Ac.0.32 dec. of land out of Ac.1.22 appertaining to Plot No.1324 to the defendants. He was in possession of the land. He used to pay rent. An unregistered lease deed was executed by the landlord in favour of defendants 1 to 3 on 10.3.1941. They constructed a house over a portion of the lease hold land. They are raiyats in respect of other lands. Since they are paying rent to the 3 ex-landlord, they acquired occupancy right under Sec. 36 of the O.T Act. They applied for fixation of rent under Sec. 9 of the OLR Act. The defendants partitioned their land amicably. They are in possession of 1/3rd of the Ac.0.32 dec. of land having their house. After due enquiry, the Tahasildar, Jajpur passed an order in OLR Case Nos.131, 132 and 133 of 1986. They have perfected their right by way of adverse possession.
4. On the inter se pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. Placing reliance on the decisions of this Court in the case of Chintamani Sahoo and others v. Commissioner of Orissa Hindu Religious Endowments, Orissa and others, 56 (1983) CLT 47, learned trial court decreed the suit holding that the plaintiff has title over the property. Unsuccessful defendants filed Title Appeal No.45 of 1992 before the learned Addl. District Judge, Jajpur. Learned appellate court held that even if Ext. 4 is unregistered Hat patta, but from 1941 the plaintiff possessed the suit land with the knowledge of the landlord as his own land; thereby by the time of vesting of the estate, the father of the plaintiff had already acquired title by adverse possession. Held so, it allowed the appeal. It is apt to state here that during pendency of the appeal, sole respondent died whereafter his legal heirs have been substituted.
5. The second appeal was admitted on the following substantial questions of law;
"1. Whether the courts below committed an error in not considering the Ext.E the documentary evidence on the side of the defendants-appellants with regard to their title and possession ?
2. Whether the courts below were correct in decreeing the plaintiff's suit holding that the plaintiff had acquired title by adverse possession in absence of proper parties before the court ?"4
6. Heard Mr. D.P. Mohanty, learned counsel for the appellants. None appears for the respondents.
7. Mr. Mohanty, learned counsel for the appellants submits that the plaintiffs assert title on the basis of Hat Pata said to have been executed by the ex-landlord. Alternatively it is pleaded that they have perfected title by way of adverse possession. The claim of title to the property and adverse possession are in terms contradictory. He further submits that the defendants filed OLR Case Nos.131, 132 and 133 of 1986. The revenue officer held that the defendants are the raiyats.
8. Learned trial court placing reliance on the decision of this Court in the case of Chintamani Sahoo and others v. Commissioner of Orissa Hindu Religious Endowments and others, CLT 56 (1983) 47 held that the plaintiff has perfected title by way of adverse possession. The decision of this Court in the case of Chintamani Sahoo (supra) has been overruled by the apex Court in the case Sarbeswar Mohanty v. Chintamani Sah00 (Dead) by Lrs., 88 (1999) CLT 433 (SC).
9. In Sarbeswar Mohanty (supra), the apex Court held that when a person is delivered possession in pursuance of a lease deed by the lessor even if such deed is void is permissive possession as a fact on that date then how such possession would become adverse ? A possession is adverse only if in fact one holds possession by denying title of the lessor or by showing hostility by act or words or in cases of trespassers as the case may be as against lessor or other owner of the property in question. This permission cannot turn into hostile only because the document rendering possession is executed in violation of any provision of law. The apex Court relied upon an earlier decision in the case of Khepa Gorain v. Kus Gorain 1998 (9) SCC 144. In the said case, the appellant was a sub-lessee and the sub-lease was declared to be illegal in view of Section 27 of the 5 Santhal Parganas Regulation III of 18th Century. The apex Court rejected the claim of the appellant holding that the appellant cannot claim to be in adverse possession from the date on which he was put in possession of the property in question, the possession being permissive and not hostile.
10. The land originally belonged to ex-landlord Govinda Chandra Misra. After coming into operation of the Orissa Estates Abolition Act, the plaintiff filed an application being Lease Case No.4055 of 1976 under Sections 6 and 7 of the OEA Act. The case was dropped. Plaintiff asserts title by way of Hat Patta. The claim of title to the property and adverse possession are in terms contradictory.
11. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others v. Mirza Abdul Gaffer and another, (1996) 1 SCC 639 held:
"As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
12. 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 6 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) The substantial questions of law are answered accordingly.
13. In the wake of the aforesaid the impugned judgments are set aside. Consequently the suit is dismissed.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 22nd March, 2018/Pradeep