Orissa High Court
Subasini Parida vs State Of Orissa on 5 January, 2018
Equivalent citations: AIR 2018 (NOC) 656 (ORI.), AIRONLINE 2018 ORI 178
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.85 of 1998
From the judgment and decree dated 21.1.1998 and 27.1.1998
respectively passed by Shri B.N. Mishra, learned Civil Judge (Sr.
Divn.), Aska in T.A. No.13 of 1992 confirming the judgment and
decree dated 29.7.1992 and 11.8.1992 respectively passed by Shri
Mohammed Ajmal, learned Munsif, Aska in T.S. No.36 of 1991.
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Subasini Parida .................. Appellant
---versus--
State of Orissa .................. Respondent
For Appellant : Mr. P.V. Balakrishna,
Mrs. Rajalaxmi Biswal, Advocates
For Respondent : Mr. R.P. Mohapatra, A.G.A.,
Miss Samapika Mishra, A.S.C.
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :05.01.2018 │ Date of Judgment:05.01.2018
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Dr. A.K. Rath, J.This is a plaintiff's appeal against an affirming judgment. The suit was for declaration of title and permanent injunction.
02. The case of the plaintiff is that she is in possession of the suit land for more than 30 years and constructed a house over the same. The suit land has been recorded as Gochar in the final ROR. The entry is wrong. Several houses have been constructed around the suit plot. The State Government have constructed jail building over a plot adjacent to the suit plot. She and her husband 2 are landless and homesteadless persons. While the matter stood thus, the Tahasildar, Aska initiated Encroachment Case No.53/85 against her and passed order of eviction. Against the said order, she filed L.E. Appeal No.33/88 before the Sub-Divisional Officer, Bhanjanagar. The appeal having been dismissed, she filed O.P.L.E. Revision No.47/89 before the Additional District Magistrate, Ganjam, Chhatrapur, which was dismissed. Thereafter she filed another O.P.L.E. Revision No.41/91 before the Revenue Divisional Commissioner, South Berhampur, but it was not entertained. She being the homesteadless person and her annual income did not exceed Rs.4000/-, is entitled for settlement of the land. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.
03. The defendant entered contest and filed a written statement denying the assertions made in the plaint. It was pleaded that the suit plot is situated by the side of P.W.D. road to Aska- Bhanjanagar main road. The suit land had been recorded as Gochar in the record of right published in the year 1949. The kissam is communal. The plaintiff and another person encroached upon a portion of the suit plot, for which, separate encroachment cases had been initiated against her and order of eviction had been passed. The land is objectionable, since it is a communal land. The plaintiff had encroached upon the suit land in the year 1984. Her husband was working as a Peon in the Tahasil Office. She is not a landless and homesteadless person. The annual income of her husband was more than Rs.6400/- and as such the land could not be settled in favour of the plaintiff. When the R.I., Aska reported that the plaintiff had encroached upon the suit land, Encroachment Case No.53/85 was initiated against her. In the encroachment case, the plaintiff 3 had not stated that she was in possession of the land for more than 30 years.
04. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. On an anatomy pleading of the parties and evidence on record, learned trial court came to hold that the suit land has been recorded as Gochar in the final ROR. In view of the embargo under Sec.16 of the Orissa Prevention of Land Encroachment Act, the suit is not maintainable. The plaintiff is not in possession of the land for more than 30 years. Held so, it dismissed the suit. The unsuccessful plaintiff filed T.A. No.13 of 1992 before the learned Civil Judge (Sr. Divn.), Aska. Learned appellate court reversed the finding of the learned trial court holding inter alia that notwithstanding the bar contained in Sec.16 of the O.P.L.E. Act, the suit is not maintainable, but conquered with other findings and dismissed the appeal.
05. The second appeal was admitted on the substantial question of law enumerated in ground no.(i) of the memorandum of appeal. The same is:
"In the fact and circumstances of this case, the finding of the learned lower appellate court on the question of possession cannot be accepted as correct. Admittedly the plaintiff and before him, her father-in-law are in possession and thus the possession is for more than thirty years. The learned lower appellate court finding in para-9 cannot be accepted as correct, in as much as, the said court failed to consider the evidence led on behalf of the plaintiff. Non-consideration of material evidence is clearly an error of law which vitiated the appellate judgment."
06. Heard Mr. P.V. Balakrishna along with Mrs. Rajalaxmi Biswal, learned counsel for the appellant and Mr. R.P. Mohapatra, 4 learned A.G.A. along with Miss Samapika Mishra, learned A.S.C. for the respondent.
07. Learned counsel for the appellant submits that plaintiff is in possession of the suit land for more than 30 years peacefully, continuously and with the hostile animus to the defendant and as such perfected title by way of adverse possession. The entry in the settlement ROR is wrong. Both the courts below committed a manifest illegality and impropriety in not scanning the evidence on record in its proper perspective and came to hold that the plaintiff had not perfected title by way of adverse possession. The findings of the courts below are contrary to the evidence on record and as such the judgments are vitiated.
08. Per contra, learned A.G.A. for the respondent submits that the plaintiff was a rank trespasser. She was not in possession of the suit land for more than 30 years. In Encroachment Case No.53/85, order of eviction was passed. She unsuccessfully challenged the said order before the Sub-Divisional Officer, Bhanjanagar in L.E. Appeal No.33/88 as well as before the Revenue Divisional Commissioner, South Berhampur in O.P.L.E. Revision No.41/91. The order of eviction was confirmed. In the settlement ROR, the land has been recorded as Gochar. In view of Sec.7 of the O.P.L.E. Act, communal land cannot be settled in favour of the plaintiff. He further submits that the husband of the plaintiff was working as a Peon in the Tahasil office. Taking advantage of the same, the plaintiff encroached upon the Govt. land.
09. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law.
510. 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) 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)
11. On a cursory perusal of the plaint, it is evident that the date of entry into the suit land has not been mentioned. 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.
12. The suit land has been recorded as Gochar in the ROR published in the year 1949. This Court in the case of Prafulla Kumar Mohapatra vs. State of Orissa and others, 2015 (II) CLR-785 held thus:
"8. The question does arise whether the same can be settled in favour of the encroacher if the 6 encroacher proves by unequivocal evidence that he is in possession of the land for more than 30 years. Second proviso to Section 7 of the OPLE Act stipulates that no such settlement shall be made if the land is recorded as Gochar. Section 8- A has to be harmoniously read with Section 7 of the OPLE Act."
13. Both the courts negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below.
14. The matter can be examined from another angle. The case of the plaintiff is that she has perfected title by way of adverse possession. In paragraph 5 of the plaint, it was pleaded that she being a landless person, entitled under law, to get the land settled in her favour. The plea is mutually destructive. The husband of the plaintiff was working as a Peon in the Tahasil office. It is highly inconceivable that a public servant would encroach upon the Govt. property and approach the civil court through his wife. The evidence on record shows that the annual income of the husband of the plaintiff was more than Rs.6400/-. The substantial question of law has been 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.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 5th January, 2018/Basanta