Orissa High Court
Giridhari Sahu .Since Dead. Through ... vs State Of Orissa And Others on 4 September, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.24 of 1985
From the judgment and decree dated 20.10.1984 and 6.11.1984
respectively passed by Sri K.S. Mishra, learned District Judge,
Dhenkanal in T.A. No.37 of 1978 reversing the judgment and decree
dated 14.9.1984 and 26.9.1984 respectively passed by Shri B. N.
Goud, learned Addl. Sub-Judge, Dhenkanal in T.S. No.5 of 1973/16
of 1976.
----------
Giridhari Sahu (since dead)
through L.Rs. ............... Appellants
---versus--
State of Orissa and others .................. Respondents
For Appellants : Mr. L.K. Moharana, Advocate
For Respondents : Mr. S. Mishra, A.S.C.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
----------------------------------------------------------------------------
Date of Hearing :21.08.2017 │ Date of Judgment:04.09.2017
----------------------------------------------------------------------------
Dr. A.K. Rath, J.Plaintiff is the appellant against a reversing judgment in a suit for declaration of title and permanent injunction.
02. The suit schedule property appertaining to khata no.2102, plot no.1905, area Ac.0.010 dec. situates in front of Dhenkanal Headquarters Hospital.
03. The case of the plaintiff is that he started his grocery business over the suit land. The same was recorded in the name of the Government. He was in occupation of the land since more than 2 46 years. The Ex-Ruler of Dhenkanal had encouraged the people to occupy lands, since the area was not developed. The Ex-Ruler allowed him to stay over the land. His family constructed their house over another place, but then the suit land was reserved for their business. While the matter stood thus, he received a notice in the year 1969 under Sec.7 of the Orissa Prevention of Land Encroachment Act (hereinafter referred to as "OPLE Act") to vacate the land. He filed a writ petition before this Court stating therein that he was in possession of the land peacefully, openly and without any interference of the defendants for more than 40 years. The order of eviction was quashed. Thereafter the Tahasildar, Dhenkanal, defendant no.2, issued notice to him to vacate the land. He filed show-cause stating therein that he had perfected title by way of adverse possession and not liable to be evicted. Pursuant to the direction of the State of Orissa, the persons in occupation of the land before 1961, the land should be settled with the person, who was in possession. His alternative plea was that in the event it was held that he had not acquired title over the land by way of adverse possession, he having been inducted as a tenant in the disputed property by the recorded tenant of the State, i.e., Sarbananda Sidha Brahmachari and the properties belonged to the said tenant had been wrongly recorded in the State after merger, he had acquired tenancy right in respect of the property and not liable to be evicted by the Government. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
04. The defendant no.1 filed written statement denying the assertions made in the plaint. The possession of the plaintiff over the suit land for more than 45 years had been denied. The specific case of the defendant no.1 is that the suit land was all along lying vacant till 1964. The same was not in possession of the plaintiff or 3 his forefathers. He unauthorisedly occupied Ac.0.005 dec. of land out of the suit plot in 1964, an encroachment case was initiated against him. Being emboldened with the order of this Court, he had encroached upon an area of Ac.0.015 dec. out of the suit plot, for which Encroachment Case No.172 of 1972 was initiated against him. He had not perfected title by way of adverse possession. It was further pleaded that the suit land is situated at the turning point of Cuttack-Sambalpur road at Baji Chowk. In Baji Chowk all the important public meetings were held. In view of its situation and public utility, the encroachment was objectionable. The alternative plea putforth by the plaintiff had been denied. The plaintiff was not inducted as a tenant on the disputed property by the recorded tenant of the State. He had not acquired tenancy right over the same. The documents in support of this belated and inconsistent pleading of the plaintiff were manufactured. The suit land had been recorded in the name of the State in the year 1923-24 settlement. In the current settlement of the year 1965, the record of right was published in the name of the State. The defendant no.4 is neither necessary nor proper party to the suit.
05. On the interse pleadings of the parties, learned trial court struck five issues. Both the parties led evidence, oral and documentary, in support of their cases. Learned trial court came to hold that the plaintiff had admitted that the suit plot situated in front of Dhenkanal Headquarters Hospital. The same had been recorded in the name of the Government in the record of right. He filed two petitions on 1.9.1972 and 20.12.1972 respectively, Exts.A and B in Encroachment Case No.172 of 1972-73 before the Tahasildar Sadar, Dhenkanal and wanted to take lease of the suit land. The same suggests that Government had title over the suit land till 1972. The Civil Court Commissioner, P.W.10, submitted a 4 report stating therein that the suit plot was recorded in the name of the Rajsarakar. He further deposed that the same was recorded in favour of Sarbananda Sidha Brahmachari. The suit land was in possession of the plaintiff. After amendment of plaint, additional written statement was not filed by other defendants. Thus the defendants had admitted the contents of the amendment. The land was the Lakhraj tenure of Sarbananda Sidha Brahmachari. The father of the plaintiff was a sikkim tenant. The plaintiff had perfected title by way of adverse possession. Held so, it decreed the suit.
06. Assailing the judgment and decree of the learned trial court, the defendant no.1 filed T.A. No.37 of 1978 before the learned District Judge, Dhenkanal. Learned appellate court held that the plaintiff had taken stand that the he was in permissive occupation of the suit land. P.W.5 had stated that he had been to the Brahmachari along with the father of the plaintiff to obtain the suit land from him and with his permission to possess the suit land about 40 years. The tax receipts granted by the Municipality on 19.3.63 revealed that the rent had been realized towards cabin license and not holding tax. In the event, the plaintiff had occupied the land as his residential house, holding tax ought to have imposed. There was no scrap of paper to show that the suit land was under the tenure holder. The suit land had been recorded in the name of Rajsarkar in 1923-24 settlement as well as in 1965 settlement. Thus Rajsarkar had right over the suit land. Placing reliance on the Municipal tax receipts, learned appellate court held that the plaintiff had erected the cabin over the suit land. He was paying license fee to the Municipality since 1963. He was a licensee under the Municipality. It negatived the plea of adverse possession and accordingly allowed the appeal.
507. The second appeal was admitted on 7.8.1985 on the substantial questions of law enumerated in ground nos.(a), (b), (c),
(d), (e) and (g) of the memorandum of appeal. The same are:
"(a) Has the court acted illegally and erroneously in holding that the disputed land belongs to Rajsarkar in the absence of any evidence merely because it has been recorded as Rajsarkar in the settlement record of 1966 ?
(b) Has the learned lower appellate court committed error of law in not considering Exts.11 and 12 and 12-a, i.e., the Amin's report ?
(c) Has the court erred in law in not coming into conclusion that plaintiff has acquired tenancy right in view of Ext.7 the patta and the rent receipts Exts.6, 6-a and 6-b granted by the Lakhrajdar ?
(d) Has the court acted illegally and with material irregularity in exercising the jurisdiction in not applying his mind that the plaintiff has acquired non-evictable right under Sec.7(b) of the Orissa Merged State Law Act ?
(e) Has the court acted illegally in holding that the plaintiff has accepted the status of licence under the Municipality which is the case of neither party ?
(g) Has the learned appellate court erred in law in not upholding the finding that the plaintiff has acquired title by adverse possession ?"
08. Mr.L.K. Moharana, learned counsel for the appellants submitted that the plaintiff was in possession of the land since more than 46 years. He eked out his livelihood by running a grocery shop over the same. A person in possession of the property can only be evicted in due process of law. By the time the proceeding under the OPLE Act was initiated, the plaintiff was in possession of the land for more than 30 years. Initiation of proceeding under the OPLE Act was bad in law. Learned appellate court had misdirected itself in 6 proceeding with the matter as if the plaintiff is claiming his title by way of adverse possession. The plaintiff was a tenant under Sarbananda Sidha Brahmchari. The finding of the learned appellate court that possession of the plaintiff was permissive in nature which is contrary to materials on record and as such the judgment is perverse. Learned appellate court travelled beyond its jurisdiction and adjudicated the matter, which is not pleaded in the written statement.
09. Per contra, Mr.S. Mishra, learned A.S.C. for the respondents submitted that the plaintiff is a rank trespasser. The possession of the plaintiff over the suit land is permissive. Learned appellate court negatived the plea of adverse possession, since there was no material on record. There was also no material on record that the plaintiff was an occupancy raiyat.
10. The plaintiff asserts that the then Ex-Ruler of Dhenkanal allowed the plaintiff to stay over the suit land. He was in occupation of the land peacefully, openly and without any interference of the defendants for more than 40 years. By the time the proceeding under the OPLE Act was initiated against him in the year 1969, he acquired title by way of adverse possession. The alternative plea putforth by the plaintiff was that he was inducted as a tenant by Sarbananda Sidha Brahmachari, the recorded tenant of the State. The suit properties belonged to the recorded tenant. The same had been wrongly recorded in the name of the State. He had acquired tenancy right over the same.
11. 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 7 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 shew that it is possession adverse to the competitor".
12. 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.
13. The hal as well as sabak record of right has been published in the name of the State. In Encroachment Case No.172 of 1972-73, the plaintiff filed two petitions on 1.9.1972 and 20.12.1972, Exts.A and B and applied for lease of the land. The date of entry into the suit land has not been mentioned. There is no pleading as to when the possession of the plaintiff became adverse. Once the plaintiff applied for lease, he cannot assert title by way of adverse possession. Learned appellate court has rightly negatived the plea of adverse possession. The pleading suffers from internal inconsistency.
14. The word 'raiyat' has been defined in Sec.5(2) of Orissa Tenancy Act. It means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest or persons who have acquired such a right. Sec.23(1) of the Act provides that every person who, for a period of twelve years whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the 8 expiration of that period, a settled raiyat of that village. Sec.24(1) postulates that every person who is a settled raiyat of a village within the meaning of Sec.23 of the Act shall have a right of occupancy in all land for the time being held by him as a raiyat in that village. There is neither any pleading nor evidence that the plaintiff was a settled raiyat of the village. Thus, the alternative plea put forward by the plaintiff pales into insignificance. The substantial questions of law are answered accordingly.
15. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
.....................................
Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 4th September, 2017/Basanta