Orissa High Court
Dasarath Sharma & Others vs State Of Odisha on 6 April, 2021
Equivalent citations: AIRONLINE 2021 ORI 140
Author: K.R.Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No. 217 of 2018
In the matter of an Appeal under Section 100 of the Code of
Civil Procedure, 1908.
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Dasarath Sharma & others ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants : Mr. S.P. Mishra (Sr. Advocate)
Mr. Gautam Mukherji (Sr. Advocate)
M/s. A.C. Panda, S.D. Ray,
S. Sahoo, S.Priyadarsini &
S. Panda
For Respondent : Miss Samapika Mishra
(Additional Standing Counsel)
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Judgment delivered on : 06.04.2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J. This appeal under Section 100 of the Code of
Civil Procedure, 1908 has been filed assailing the judgment
and decree dated 16th January, 2018 passed by learned
Additional District Judge, Jharsuguda in RFA No.07 of 2014
whereby he confirmed the judgment and decree dated 1st
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February, 2014 and 24th February, 2014 respectively passed
by learned Civil Judge (Senior Division), Jharsuguda in TS
No.220/100 of 1995-2004.
1.1 For the sake of convenience, the parties are
described as per their status in the trial Court.
2. Plaint averments in short reveal that Suit land in
HS Khata No.93 and HS Plot No.121 (Gochar) measuring an
area Ac.14.70 decimal of mouza Ekatali, which corresponds to
MS Khata Nos.499 and 497 of Jharsuguda town Unit-I
(Ekatali) in the district of Jharsuguda, was situated under a
Gountiahi village under un-divided district of Sambalpur. As
per the documents of administration, i.e., Wazib-ul-urj of said
village, Lambardar Gountia of the village was entitled to
reclaim and cultivate it and also to lease out the same to
rayats/tenants for reclamation and cultivation without
charging any Nazarana or Salami. The deceased plaintiff No.1,
namely, Brundabana Sharma requested the then Gountia,
namely, Gokulananda Patel @ Gountia to lease out the suit
land for reclamation and cultivation by his joint family
consisting of himself and his brother Banawarilal Sharma.
Accordingly, on 12th October, 1944, said Gokulananda
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Gountia leased out the suit land to Brundabana Sharma. The
family of Brundabana Sharma reclaimed the suit land and
cultivated the same by raising different crops. They also
constructed a house thereon and paid land revenue to
Gountia. After abolition of the Gounti system with effect from
1st April, 1960, they continued to pay municipal taxes to
Jharsuguda Municipality. By operation of law, the plaintiff
No.1, namely, Brundabana Sharma became an occupancy
rayat. Tahasildar, Jharsuguda, after due enquiry and verifying
gounti patta granted in favour of Brundabana Sharma and
also taking into consideration the possession of plaintiffs,
settled the suit land in his favour in Revenue Case No.33/7-1
of 1962-63. The deceased plaintiff No.1 was also paying land
revenue from 1960 till 1991. In Major Settlement, the suit
land was recorded in the name of plaintiff No.1. There was a
partition of the suit land in the family of the deceased plaintiff
No.1, which was accepted by the Additional Tahasildar in OLR
Ceiling Case No.2 of 1978.
3. After 27 years of order of Tahasildar in Misc. Case
No.33/7-1 of 1962-63, the State of Odisha filed revision before
Member, Board of Revenue, Odisha, Cuttack under Section
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38-B of the Odisha Estates Abolition Act, 1951 (for short, 'the
OEA Act') in OEA Revision Case No.37 of 1989 assailing order
dated 24th December, 1962 passed by the Tahasildar,
Jharsuguda in the aforesaid Misc. Case. The Member, Board
of Revenue, allowed the said revision holding that the order
passed by OEA Collector-cum-Tahasildar, Jharsuguda to be
null and void. Being aggrieved, the plaintiff No.1-Brundabana
Sharma filed OJC No.781 of 1993 before this Court. Taking
into consideration that the Revision was filed 27 years after
the land was settled in favour of the plaintiff No.1 and also
other legal grounds, this Court set aside the order passed by
learned Member, Board of Revenue. Assailing the said order
passed in OJC No.781 of 1993, the State of Odisha moved the
Hon'ble Supreme Court in SLP (Civil) No.15486 of 1993.
Hon'ble Supreme Court set aside the order of this Court
holding that Member, Board of Revenue has power to revise
the order after 27 years. The plaintiff Nos. 2 to 4 were not
parties to either the OEA Revision or in the writ petition before
this Court or SLP filed before the Hon'ble Supreme Court.
Hence, it is contended that the said order is not binding on
them. It is further contended that since possession of the
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plaintiffs is open, continuous and for a period of more than
thirty years, they have perfected their title on the Schedule 'A'
land by adverse possession. Accordingly, the suit was filed
claiming right, title and interest over the suit land and for
confirmation of possession.
4. The defendants filed written statement contending
that Gokulananda Patel @ Gountia was neither Gountia nor
landlord of the village in question and had got no right to lease
out the 'Gochar' land. The alleged Patta dated 12th October,
1944 was forged one and the plaintiffs never possessed the
suit land. Learned Member, Board of Revenue in OEA Revision
Case No.37 of 1989 and the Hon'ble Supreme Court in SLP
Nos.2838-15486 of 1993 arising out of said Revision, have
categorically held that the Tahasildar had no power under
Section 8(1) of the OEA Act to record the name of Brundabana
Sharma in respect of the suit land. No sanction under Section
5(1) of the OEA Act being taken from the Member, Board of
Revenue for confirmation of the lease in respect of the suit
land the same is void. Further, the Hon'ble Supreme Court by
order dated 28th January, 1994 passed in Civil Appeal
Nos.827-828 of 1994 (arising out of SLP (Civil) Nos.2838 and
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15486 of 1993, held that the lease of the land allegedly
granted by the intermediary in favour of Brundabana Sharma
prior to the date of vesting does not confer any tenancy right
in his favour and confirmation of tenancy right by the
Tahasildar without obtaining prior confirmation of Member,
Board of Revenue is without jurisdiction. Payment of land
revenue or rent being an administrative act does not confer
any right, title or interest in the suit land in favour of plaintiff
No.1. Hence, they pray for dismissal of the suit.
5. Learned Civil Judge, taking into consideration the
rival contentions of the parties, framed as many as 19 issues
for adjudication of the suit, which are as follows:-
1. Whether the lease patta granted by Gokulananda Patel in
the year 1944 is a valid one?
2. Whether Gokulananda Patel has right to grant lease patta?
3. Whether Gokulananda Patel was the Lambardar Gountia of
village Ekatali?
4. Whether Brundabana Sharma has been possessing on the
strength of patta dated 12.10.44?
5. Whether Burndaban Sharma had reclaimed the land?
6. Whether the house was constructed by the plaintiff?
7. Whether the plaintiffs have possessed the house?
8. Whether the plaintiffs became rayat under the Government
automatically?
9. Whether the payment of malgujari to Gokulanda Patel or
anybody else confer any title on Brundabana Sharma or
any of his family members?
10. Whether the judgment of the Hon'ble Supreme Court passed
in Civil Appeal No.827-28 of 1994 arising out of SLP (c)
No.2838 and 15486 of 1993 operates as res-judicata in this
world?
11. Whether the plaintiffs have been possessing the suit land
from 1944 till now as occupancy rayat and also adversely
against the entire world?
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12. Whether the plaintiffs have perfected their title over the suit
land more than 30 years adverse possession?
13. Whether by paying the land revenue will confer any right?
14. Whether the judgment of the Hon'ble Supreme Court of
India is binding on all the plaintiffs?
15. Whether there is any cause of action for this suit?
16. Whether the plaintiffs are entitled to get any relief?
17. Whether the suit is maintainable?
18. To what relief the plaintiffs are entitled to, if any?
19. Whether the valuation of the suit land is Rs.1,05,000/-
(Rupees one lac and five thousand) only?
6. Learned Civil Judge answering all the issues
against the plaintiffs, dismissed the suit vide judgment dated
1st February, 2014 and decree dated 24th February, 2014.
During pendency of the suit, plaintiff No.1-Brundabana
Sharma died and was substituted by his legal heirs as
plaintiffs Nos.1(a) to 1(g). Likewise, plaintiff No.2 also died and
substituted by his legal heirs plaintiff Nos.2(a) to 2(g).
6.1 Assailing the judgment and decree passed in the
suit, the plaintiffs preferred RFA No.07 of 2014, which was
dismissed vide judgment and decree dated 16th January, 2018
passed by learned Additional District Judge, Jharsuguda.
Being aggrieved by the aforesaid judgment and decree, the
plaintiffs have preferred this Second Appeal. Initially, the
appellants in the memorandum of appeal proposed to frame
the following questions of law for consideration.
(i) Whether the learned Original Court and the learned First
Appellate Court committed manifest illegality in
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mechanically deciding the issues framed in the suit in
view of the judgment under Exhibit C and without any
discussion or reliance placed on the documentary
evidence on record in view of the fact that Exhibit C is a
judgment from summary proceeding questioning the
validity of quasi-judicial order of the which is not binding
on the learned original Court which was bound to decide
right title and interest of the plaintiffs on the basis of
evidence adduced by parties?
(ii) Whether the plaintiffs who are all the representatives of a
Hindu undivided joint family and enjoying joint tenancy
and joint possession as yet (for the want of partition)
bound by the judgment under Exhibit C where the other
branches of the common ancestor of Brundabana
Sharma were admittedly not parties and Brundabana
Sharma was admittedly not a karta of the joint family?
(iii) Whether the plaintiffs have perfected their title of Adverse
Possession by possessing the suit land for 1944 to 1995
even till date?
Subsequently, during course of argument, Mr. Mishra, learned
Senior Advocate prays for consideration of following
substantial questions of law.
Whether the Courts below have failed to take judicial
notice of the conclusion of the Supreme Court judgment
vide Exhibit 'C' that the possession of Brundabana
Sharma is illegal and he was a wrongful and illegal
occupant of the Government land, which otherwise
justifies the claim of the plaintiff to have acquired the
right, title and interest by way of adverse possession in
view of their uninterrupted possession for more than the
statutory period over the suit land from 12.10.1944 till
date against the State Government on the basis of a void
transaction?
7. It is the submission of Mr. Mishra, learned Senior
Advocate that in view of the verdict of Hon'ble Supreme Court
vide Ext-'C', the possession of Brundabana Sharma over the
suit land becomes illegal, which otherwise justify the claim of
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the plaintiffs to have acquired right, title and interest by way
of adverse possession in view of their open and un-interpreted
possession for more than the statutory period with effect from
12th October, 1944 till date.
8. Taking into consideration the averments made in
the plaint as well as written notes of submissions and
scrutinising the materials on record, it can be safely said that
the claim of the plaintiffs rests on the Patta granted by
Gokulananda stated to be the erstwhile Gountia of the village
in favour of Brundabana Sharma (plaintiff No.1) on 12th
October, 1944. Plaintiff Nos.2 to 4 claimed right, title and
interest over a portion of the suit land on the basis of either
partition or gift made in their favour from out of the suit land
allegedly leased out in favour of said Brundabana Sharma.
Hon'ble Supreme Court in Civil Appeal Nos.827-828 of 1994
(State of Orissa and others -v- Brundabana Sharma and
another, reported in 1995 Supp (3) SCC 249) held as follows:
"19. So, we hold that the High Court is not right or
justified in opining that the exercise of the power under
Section 38-B is not warranted. It committed illegality in
quashing the order of the Board of Revenue. The order of
the High Court is set aside. The order of the Board of
Revenue is restored. Consequently we hold that the
Government, being the owner, need not acquire its own
land and need not pay compensation to an illegal or
wrongful occupant of the Government land. The direction
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or mandamus to acquire the land and to pay the
compensation to the respondent is set aside.
20. The appeals are accordingly allowed. But in the
circumstances, the parties are directed to bear their own
costs."
9. Thus, in view of the findings of the Hon'ble
Supreme Court in Brundabana Sharma (supra), the claim of
title by the plaintiffs over the suit land as occupancy rayats, is
no more available to be raised in a subsequent suit.
10. The next question that remains to be adjudicated
is as to whether the claim of plaintiffs to have acquired title by
adverse possession can be adjudicated in this appeal as a
substantial question of law.
11. Mr. Mishra, learned Senior Advocate appearing on
behalf of the plaintiffs/appellants reiterating the averments
made in the plaint, strenuously argued, when the Hon'ble
Supreme Court had declared the occupation of the plaintiffs to
be illegal and wrongful, their possession becomes adverse from
the date of their initial possession, i.e., 12th October, 1944. In
support of his case, he relied upon the decision in the case of
Collector of Bombay Vs. Municipal Corporation of the City
of Bombay and others, reported in AIR 1951 SC 469, in
paragraph-11 of which it is held as under:-
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"11........ Both parties acted on the basis of that
Resolution and the predecessor in title of the respondent
Corporation went into possession of the land in question
pursuant to the Government Resolution of 1865 and,
acting upon the said Resolution and the terms contained
therein, the respondent Corporation and its predecessor
in title spent considerable sums of money in leveling the
site and erecting and maintaining the market buildings
and have been in possession of the land for over 70
years. What, in the circumstances was the legal position
of the respondent Corporation and its predecessor in title
in relation to the land in question? They were in
possession of the land to which they had no legal title at
all. Therefore, the position of the respondent Corporation
and its predecessor in title was that of a person having
no legal title but nevertheless holding possession of the
land under colour of an invalid grant of the land in
perpetuity and free from rent for the purpose of a market.
Such possession not being referable to any legal title it
was prima facie adverse to the legal title of the
Government as owner of the land from the very moment
the predecessor in title of the respondent Corporation
took possession of the land under the invalid grant. This
possession has continued openly, as of right and
uninterruptedly for over 70 years and the respondent
Corporation has acquired the limited title it and its
predecessor in title had been prescribing for during all
this period, that is to say, the right to hold the land in
perpetuity free from rent but only for the purposes of a
market in terms of the Government Resolution of 1865.
The immunity from the liability to pay rent is just as
much an integral part or an inserverable incident of the
title so acquired as is the obligation to hold the land for
the purposes of a market and for no other purpose. There
is no question of acquisition by adverse possession of the
Government prerogative right to levy assessment. What
the respondent Corporation has acquired is the legal right
to hold the land in perpetuity free of rent for the specific
purpose of erecting and maintaining a market upon the
terms of the Government Resolution as it a legal grant
had been made to it........"
(emphasis supplied)
He, therefore, submits that since the initial entry of the
plaintiff No.1 to the suit land was not legal, the possession
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becomes adverse to the true owner, i.e., Government of
Odisha. The plaintiffs are in possession of the suit land till
date. As such, they have perfected their title by adverse
possession. He further relied upon the decision in the case of
the State of West Bengal Vs. Dalhousie Institute Society,
reported in (1970) 3 SCC 802, paragraphs-16 and 17 of
which are relevant for discussion, which are as follows:-
"16. There is no material placed before us to show that
the grant has been made in the manner required by law
though as a fact a grant of the site has been made in
favour of the Institute. The evidence relied on by the
Special Land Acquisition Judge and the High Court also
clearly establishes that the respondent has been in open,
continuous and uninterrupted possession and enjoyment
of the sit for over 60 years. In this respect the material
documentary evidence referred to by the High Court
clearly establishes that the respondent has been treated
as owner of the site not only by the Corporation, but also
by the Government. The possession of the respondent
must have been on the basis of the grant made by the
Government, which, no doubt, is invalid in law. As to
what exactly is the legal effect of such possession has
been considered by this Court in Collector of Bombay v.
Municipal Corporation of the City of Bombay, 1952 SCR
43 : AIR 1951 SC 469 as follows:......
17. The above extract establishes that a person in such
possession clearly acquires title by adverse possession.
In the case before us there are concurrent findings
recorded by the High Court and Special Land Acquisition
Judge in favour of the respondent on this point and we
agree with those findings."
(emphasis supplied)
He, therefore, submitted that the plaintiffs have clearly
acquired title over the suit land by adverse possession. It is his
submission that in addition to the claim of the title by the
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plaintiffs as occupancy rayats, there is no bar under law to
claim title by adverse possession. Hence, he prays for framing
the aforesaid question(s) of law for adjudication of the appeal.
12. In order to take a decision with regard to framing
of substantial question of law on the issue of adverse
possession, this Court took assistance of Miss Samapika
Mishra, learned Additional Standing Counsel, who also
represents the defendant-State in this appeal.
13. Miss Mishra, learned Additional Standing Counsel
submitted that the plaintiffs have all throughout in the plaint
have contended that they have acquired title over the suit land
as occupancy rayats. An occupancy right over the suit land
cannot be acquired by adverse possession as held by this
Court in the case of Champa Bati Bewa @ Kabi and others
Vs. Kanhu Mallik and others, reported in Vol.33 (1991)
O.J.D. 154 (Civil), which is as follows:-
"9. The learned lower appellate court has held that
defendant No.1 acquired occupancy right by adverse
possession. The finding is against law because
occupancy right cannot be acquired by adverse
possession. It was alternatively held that defendant No.1
being settled raiyat of the village acquired occupancy
right under Sections 24 and 25 read with Section 23 of
the Orissa Tenancy Act by being in possession for more
than 25 years. There is no pleading to that effect. Hence,
the finding of the lower appellate court that defendant
No.1 acquired occupancy right cannot be sustained. In
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Lachmllal and Ganesh Chamar, AIR 1932 Patna 259, it
has been held that status of a tenant on notice to quit is
that of a trespasser."
13.1 It is her submission that issue of adverse
possession is based on the principle of nec vi nec clam nec
precario. Therefore, the claim of right over the suit land as
occupancy rayat and the claim of title by adverse possession
are mutually destructive and hence not permissible under law.
In support of her submission, she relied upon the case of
Praful Manohar Rele -v- Krishnabai Narayan Ghosalkar
and others, reported in (2014) 11 SCC 316, in para-10 of
which it is held as under:-
"10. Significantly, the decision rendered by the High
Court rests entirely on the fourth question extracted
above. The High Court has taken the view that while the
plaintiff could indeed seeks relief in the alternative, the
contentions raised by him were not in the alternative but
contradictory, hence, could not be allowed to be urged.
The High Court found that the plaintiff's case that the
defendant was a gratuitous licensee was incompatible
with the plea that he was a tenant and, therefore, could
be evicted under the Rent Act. The High Court observed:
"It is now well settled that a plaintiff may seek
reliefs in the alternative but in fact the
pleadings are mutually opposite, such pleas
cannot be raised by the plaintiff. There is an
essential difference between contradictory
pleas and alternative pleas. When the plaintiff
claims relief in the alternative, the cause of
action for the reliefs claimed is the same.
However, when contradictory pleas are raised,
such as in the present case, the foundation for
the contradictory pleas is not the same. When
the plaintiff proceeds on the footing that the
defendant is a gratuitous licensee, he would
15
have to establish that no rent or consideration
was paid for the premises. Whereas, if he
seeks to evict the defendant under the Rent Act,
the plaintiff accepts that the defendant is in
possession of the premises as a tenant and
liable to pay rent. Thus, the issue whether rent
is being paid becomes fundamental to the
decision. Therefore, in my opinion, ,the pleas
that the defendant is occupying the suit
premises gratuitously is not compatible with the
plea that the defendant is a tenant and
therefore can be evicted under the Rent Act."
(emphasis supplied)
She, therefore, submitted that the foundations of both the
pleas taken by the plaintiffs being different and opposite to
each other, are not permissible under law to be raised. She
further submitted that the plaintiffs in order to claim title by
adverse possession have to comply with the requirement of
law as laid down in the case of Karnataka Board of Wakf -v-
Government of India and others, reported in 2004 (10) SCC
779, in paragraph-11 of which it is held as under:-
"11. In the eye of the law an owner would be deemed to
be possession of a property so long as there is not
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,
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hostile and continued over the statutory period. (See S.M.
Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N.
Venkatarayapa v. State of Karnataka). Physical fact of
exclusive possession and the animus possidendi to hold
as owner in exclusion to the actual owner are the most
important factors that are to be accounted in cases of this
nature. 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 not equities in his favour. Since he is
trying to defeat the rights of the truer owner, it is for him
to clearly plead and establish all facts necessary to
establish his adverse possession [Mahesh Chand
Sharma (Dt.) v. Raj Kumar Sharma]."
(emphasis supplied)
14. Thus, party seeking title by adverse possession
must specifically plead the date of entry into possession and
on which date his possession, if any, becomes adverse to the
true owner. She further relied upon the decision in the case of
Ganesh Shankar Shukla (since dead) through L.Rs. -v-
State of Orissa & another, reported in 2017 SCC On Line
Ori 714 and submitted that the issue of adverse possession is
a mixed question of facts and law. Since the learned trial
Court as well as the First Appellate Court came to a
conclusion that the plaintiffs have not acquired any title by
adverse possession, the same is not open to be raised in this
Second Appeal. She, therefore, prayed for dismissal of the
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appeal as it involves no question of law much less any
substantial question of law.
15. Heard learned counsel for the parties at length and
perused the averments made in the plaint. Undisputedly, the
plaintiffs have claimed right, title and interest over the suit
land as occupancy rayats. All throughout, they have tried to
assert their right through lease deed dated 12th October, 1944.
At no place, in the body of the plaint, they have accepted the
Government to be the true owner of the suit land. In order to
establish the claim of title through adverse possession, the
basic requirement is to accept the title of the true owner,
namely, the Government of Odisha against whom they claim
adverse possession. From the pleadings in the plaint, it is also
apparent that the plaintiffs claim their title as occupancy
rayats. Further, they claim title by adverse possession on the
plea that their possession is open and continuous for more
than thirty years. The edifice of claim of title by adverse
possession cannot stand on the foundation of denying the title
of the true owner. The plaint must contain specific pleadings
of adverse possession satisfying the requirements as set out in
Karnataka Board of Waqf (supra), which is conspicuously
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absent in the pleadings of the plaint. Claiming title over the
suit land on the basis of adverse possession, is based on the
principle "nec vi, nec clam, nec precario". Thus, mere pleadings
of open, continuous and long possession or enjoyment of the
land without a specific assertion as to when the plaintiffs
entered into possession and when the same became adverse to
the true owner, will not by itself be sufficient to claim title by
adverse possession.
16. Further, relief claimed in the plant is not clear as
to whether the plaintiffs claim right, title and interest over the
suit land as occupancy rayats or by adverse possession.
17. It is held by this Court in the case of Champa
Bati Bewa (supra), an occupancy right cannot be claimed by
adverse possession. It necessarily infers that the requirements
for claim of title as an occupancy rayat and that of adverse
possession are not one and the same and in fact are mutually
opposite. Thus, in view of the ratio in the case of Praful
Manohar Rele (supra), the claim of title by adverse
possession cannot be raised as an alternative plea of
occupancy rayat.
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18. Mr. Mishra, learned Senior Advocate, in course of
hearing, submitted that although issue No.12 has been framed
with regard to the claim of the of title by adverse possession by
the plaintiffs, but learned first Appellate Court has neither
dealt with nor recorded any finding on the same, which itself
is a matter for consideration in the Second Appeal. In view of
the discussion made above, when this Court has come to a
conclusion that plea of adverse possession is not available to
be raised by the plaintiffs, the contention of Mr. Mishra,
learned Senior Advocate loses its relevancy for consideration.
19. Taking into consideration the facts and
circumstances stated above, I am of the considered opinion
that this Appeal involves no substantial question of law for
adjudication. Accordingly, the same stands dismissed.
Photocopies of the LCR received by this Court be
sent back immediately.
.................................
K.R.MOHAPATRA, J.
Orissa High Court, Cuttack Dated the 6th day of April, 2021/ss/bct