Orissa High Court
Bhaskar Chandra Barik & Another vs State Of Orissa & Others on 6 August, 2018
Equivalent citations: AIRONLINE 2018 ORI 290
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
RSA No.111 of 2015
From the judgment and decree dated 25.8.2014 and 6.9.2014 respectively
passed by Sri S.S. Jena, learned 3rd Addl. District Judge, Puri in RFA
No.19/100 of 2014/2008 confirming the judgment and decree dated
16.5.2008 and 24.5.2008 respectively passed by Sri L.K. Dash, learned
Civil Judge (Junior Division), Puri in T.S No.109 of 1998.
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Bhaskar Chandra Barik & another .... Appellants
Versus
State of Orissa & others .... Respondents
For Appellants ... Mr. Budhiram Das, Adv.
For Respondents ... Mr. Swayambhu Mishra, ASC
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH Date of hearing: 26.07.2018 : Date of judgment: 06.08.2018 Dr. A.K.Rath, J This is a plaintiffs' appeal against confirming judgment.
2. Ananda Barik, predecessor-in-interest of the appellants as plaintiff, instituted the suit for declaration of title, confirmation of possession and permanent injunction. Case of the plaintiff was that suit plot was originally recorded in the name of Bharat Samrat represented through P.W.D. Department in the R.O.R. published in the year 1927 with a note of possession of Dharma Lenka and others. In the year 1933, the other persons handed over the possession of Ac.0.06 dec. out of total extent of area Ac.0.13 dec. to Dharma Lenka for a consideration of Rs.30/-. Ac.0.02 dec. belonged to Dharma. He occupied Ac.0.04 dec. of land adjoining to his own share. After death of Dharma Lenka, his successors Dinabandhu Lenka and 2 Chintamani Lenka executed a sale deed on 17.11.1965 in respect of a portion of suit plot and delivered possession to Madhabananda Pradhan. On 4.4.1970, Madhabananda Pradhan alienated the suit land in favour of the plaintiff for a valid consideration. The plaintiff had constructed a residential house over the said property. The possession of the plaintiff was with the full knowledge of the defendants. When the R.I threatened the plaintiff to remove the construction, he instituted the suit seeking the reliefs mentioned supra.
3. The defendants entered contest and filed a joint written statement denying the assertions made in the plaint. It was pleaded that for widening the government road, the defendants took steps to remove the unauthorised occupation of the Government land. No notice under Sec. 80 CPC was issued to the defendants. The suit was not maintainable as the consolidation operation in the area was going on.
4. On the inter se pleadings of the parties, learned trial court struck eight issues. Parties led evidence, both oral and documentary, to substantiate the case. Learned trial court dismissed the suit holding, inter alia, that the plaintiffs failed to prove the continuous and uninterrupted possession over the suit property to the hostile animus of the defendants for more than thirty years. Unsuccessful plaintiff filed first appeal before the learned District Judge, Puri, which was subsequently transferred to the court of the learned 3rd Addl. District Judge, Puri and re-numbered as RFA No.19/100 of 2014/2008. The appeal was eventually dismissed. It is apt to state here that during pendency of the suit, the plaintiff died and his legal heirs have been substituted.
35. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 and 2 of the memorandum of appeal. The same are -
"1. Whether in view of the evidence of P.Ws coupled with the documentary evidence starting from 1927 and more particularly the decision in RFA No.7/106 of 2005/2003, learned courts below should have held that the plaintiffs have perfected their title over the suit land by virtue of adverse possession ?
2. Whether in view of the finding in RFA No.7/106 of 2005/2003 that the vendor's vendor of the plaintiff has perfected his title by adverse possession over the suit plot which has become final, the learned courts below acted illegally in discarding the said decision on the ground that the same is confined to that suit only and if such illegal approach has vitiated the entire judgment."
6. Heard Mr. Budhiram Das on behalf of Mr. N.C. Pati, learned counsel for the appellants and Mr. Swayambhu Mishra, learned Addl. Standing Counsel.
7. Mr. Das, learned counsel for the appellants submitted that the vendor's vendor of the plaintiff, namely, Dinabandhu Lenka and Chintamani Lenka instituted T.S. No.111 of 1998 before the learned Civil Judge (Junior Division), Puri for declaration of title, confirmation of possession and permanent injunction over the suit land. The suit having been dismissed, they filed RFA No.7/106 of 2005/2003 before the learned Ad hoc Addl. District Judge, FTC No.II, Puri. Learned appellate court allowed the appeal and held that the plaintiffs have perfected title by way of adverse possession. Though the judgment and decree of the learned appellate court has been marked as Ext.10, but the learned courts below brushed aside the same on untenable and unsupportable grounds. He further submitted that the vendor's vendor had a valid title over the suit land. The plaintiff has valid title over the suit land. Initiation of encroachment case is bad in law. Otherwise also the plaintiff has 4 perfected title by way of adverse possession by remaining in possession of the same peacefully, continuously and to the hostile animus of the defendants for more than the statutory period.
8. Per contra, Mr. Mishra, learned ASC submitted that the adverse possession is a mixed question of fact and law. Both the courts below concurrently held that the plaintiff has not perfected title over the suit land by way of adverse possession.
9. The plaintiffs assert that the suit property was originally recorded in the name of Bharat Samrat represented through P.W.D. (R&B) Department in the R.O.R. published in the year 1927 with note of possession of Dharma Lenka and two others. Chintamani Lenka and Dinabandhu Lenka sons of Dharma Lenka instituted T.S. No.111 of 1998 against the State of Orissa and its functionaries claiming title over the suit property on the basis of adverse possession. On the other hand the plaintiff claims title over the suit schedule property by way of adverse possession. Both parties claim title over Government property by way of adverse possession. If Dinabandhu Lenka and Chintamani Lenka sold the property to Madhabananda Pradhan on 17.11.1965, this Court fails to understand as to why they instituted T.S. No.111 of 1998 claiming title over the property by way of adverse possession after lapse of thirty years of the execution of the sale deed ? Thus the judgment passed by the learned Ad hoc Addl. District Judge, FTC No.II, Puri in RFA No.7/106 of 2005/2003 is of no avail to the plaintiff. Successive sale deeds have been executed in respect of the Government land without any valid title.
10. The plea based on title and adverse possession is mutually inconsistent. The plaintiff has claimed title over the suit property by way of purchase and simultaneously he claims title by way of adverse possession.
511. In Annasaheb Bapusaheb Patil and others Vrs. Balwant alias Balasaheb Babusaheb Patil (dead) By Lrs. and heirs and others, (1995) 2 SCC 543, the apex Court made an in-depth analysis of claim of title and claim to adverse possession over the property. The apex Court held :
"Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all."
12. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others vs. 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."
13. 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 long 6 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)
14. 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. Both the courts concurrently held that the plaintiff has failed to prove that he acquired title by way of adverse possession. There is no perversity in the findings of the courts below. The substantial questions of law are answered accordingly.
15. In the ultimately analysis, the appeal fails and is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 6th August, 2018/PKS