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2008 DIGILAW 981 (ORI)

PARASRAM AGARWALLA v. HARIBHAJAN JHANKAR

2008-10-31

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ application challenges have been made to the common order dated 16.1.1995 passed by the Collector, Bargarh in O.L.R Revision Nos. 1 and 3 of 1991. The facts as narrated in the records are as follows: 2. Opposite party No. 1, Haribhajan Jhankar is the recorded owner of the disputed land, i.e., Hamid Settlement Plot No. 247 (P) under Khata No. 269 measuring an area Ac.1.35 decimals corresponding to M.S. Plot Nos. 4446, 4449 and 4445 under Khata No. 2525 measuring an area Ac.1.20 decimals. The R.O.R in respect of the said land stands recorded in the name of opposite party No. 1 and his ancestors. Opposite party No. 1 filed an application u/s 23A of the O.L.R Act (hereinafter referred to as "the Act") before the Collector, Bargarh for restoration of possession of the disputed land on the ground that he belongs to Scheduled Tribe and the Scheduled land is his raiyati land and the Petitioner was in unauthorized possession of the said land. Hence, the same may be restored to him. He further stated that the land is a Jhankari land which was settled in favour of his predecessor-in-interest in Village Police Abolition Case No. 1 of 1967/68 and the same was also recorded in his name in the Major Settlement which ended on 20.6.1970. 3. The Petitioner contested the aforesaid O.L.R. case filing his show cause and he averred that in the year 1945, he acquired H.S. Plot Nos. 247 measuring Ac.0.50 dec. and 247/3383 measuring Ac.0.04 dec. on payment of proper consideration from the then Maufidar Gountia and since then, he is in possession of the case land constructing permanent structure over it. He is in possession of the entire land for much more than 12 years without any interruption or disturbance from any quarters. Thus, he claimed that the right of the applicant (present opposite party No. 1) u/s 23A of the Act, if any, or his predecessor had extinguished long since and any settlement made in his favour was illegal and without jurisdiction and a proceeding u/s 23A of the Act was not maintainable. Thus, he claimed that the right of the applicant (present opposite party No. 1) u/s 23A of the Act, if any, or his predecessor had extinguished long since and any settlement made in his favour was illegal and without jurisdiction and a proceeding u/s 23A of the Act was not maintainable. The Sub-Collector disposed of the proceeding on 31.3.1989 and held that the present Petitioner was in unauthorized possession over the disputed land and he directed to vacate the suit land and restore the possession of the scheduled case land to the present opposite party No. 1. 4. Being aggrieved by the said order, the Petitioner preferred O.L.R. Appeal No. 19 of 1989 before the Addl. District Magistrate, Sambalpur. The Addl. District Magistrate disposed of the appeal on 5.9.1990. Earlier, he had heard the appeal on 30.1.1990 and remanded the matter to the Sub-Collector adjudication afresh. But the appeal was again heard and disposed of on 5.9.1990 wherein the Addl. District Magistrate has held that the Appellant cannot be treated as an encroacher in respect of Plot Nos. 4446 and 4449. Rather, he is the rightful owner of the land by way of raiyati patta from the Maufidar Gountia vide registered deed No. 131 dated 9.7.1945. So the remaining contention of both the parties related to Major Settlement Plot No. 4445 under M.S. Khata No. 2525 which was recorded in the name of the Suna Jhankar during the last Settlement and the lower court's order for eviction of the said land was justified. On the above observation, he allowed the appeal in part and directed to evict the present Petitioner from Plot No. 4445 and restore the same in favour of opposite party 0.1. 5. Being aggrieved by the said order passed by the Addl. District Magistrate, the Petitioner as well as opposite party No. 1 filed O.L.R Revision Nos. 1 of 1991 and 3 of 1991 respectively before the Collector, Bargarh. In the said revisions, the Collector found that Section 23A of the Act came into force on 25.10.1976 and one was to prove his Continuous possession to the knowledge of everybody openly, peacefully and without any interruption to perfect the title by adverse possession or to extinguish the right of the true owner. In the said revisions, the Collector found that Section 23A of the Act came into force on 25.10.1976 and one was to prove his Continuous possession to the knowledge of everybody openly, peacefully and without any interruption to perfect the title by adverse possession or to extinguish the right of the true owner. In the absence of note of possession in Village Police Abolition Case in Major Settlement R.O.R and in view of the RI's report dated 5.1.1989 filed in S.D.O.O.L.R No. 104 of 1987 showing that the disputed land Was possessed by the writ Petitioner for seven years and the statement recorded by the S.D.O. where Ram Kumar Aggrawalla stated that there was no house over the disputed plot from 1950 to 1981 and the admission that the construction of the building was made during hearing stage of the case before the S.D.O., the claim of adverse possession through construction of house, etc., was not proved. In the Major settlement the type of disputed land is recorded as Plot Nos. 4445 M.A: KHA (Mal Khari), 4446 Patita, 4449 Patita. Had there been any construction on the aforesaid land, the type of the land and should have been recorded as Gharabari. Therefore, perfecting the title through adverse possession was not established an such findings the Collector by his order dated 16.1.1995 while allowing O.L.R. Revision No. 3 of 1991 dismissed O.L.R. Revision No. 1 of 1991. Hence, this writ petition. 6. Learned Counsel for the Petitioner submitted that Section 23A of the Act came into force on 25.10.1976. In the present case, the dispute was raised u/s 23A of the Act in the year 1987. By that time, the Petitioner was in possession of the property for more than 12 years. Therefore, the proceeding u/s 23A was not maintainable and in Section 23(B)(2) of the Act, to perfect title by adverse possession or to extinguish the right of the true owner in proceeding u/s 23B and u/s 23A, the period of limitation was inserted by way of amendment in the year 1991 and by that amendment the period of limitation was 30 years. Therefore, since the Amendment Act is prospective, the period of 30 years' possession is only to come into force in the year 1991. Therefore, since the Amendment Act is prospective, the period of 30 years' possession is only to come into force in the year 1991. Therefore, if a person was in possession of the property for more than 12 years prior to that date, he had perfected his title by adverse possession and the said person cannot be evicted under the O.L.R. Act u/s 23A, as the present proceeding was instituted in the year 1987. 7. Learned Counsel for the opposite parties submitted that after vesting of the estates with the State, the disputed property was settled with opposite party No. 1 in a Village Police Abolition Case as he was in possession of the property at the time of vesting and at that time, the Petitioner did not raise any objection to the same. His name was recorded in respect of the disputed land. In the Major Settlement also his name was recorded in respect of the disputed land. At no point of time the Petitioner raised any objection and also filed a Mutation Case No. 388 of 1986 to mutate Plot Nos. 4446 and 4449 in his name which was rejected as the present opposite party No. 1 was in possession of the land. Therefore, the Petitioner failed to prove his continuous and uninterrupted possession over the disputed land to claim adverse possession. Therefore, the Collector rightly rejected his prayer in the revision. Hence, the impugned order need not be interfered with. 8. The above rival submissions of the parties reveal that the disputed land was admittedly recorded as Jhankari land in the Hamid Settlement and it was settled in the name of opposite party No. 1 in the Village Police Abolition Case. At that time, the Petitioner did not raise any objection. The expression "and u/s 23A" was inserted in Section 23B(2) of the Act in the year 1991 and there is no dispute that the same Act is prospective as it is penal in nature. The present proceeding u/s 23A was filed in the year 1987. The documents reveal that the Major Settlement ended in 1970, the name of opposite party No. 1 was recorded in the R.O.R. where the type of land was mentioned as Gharabari. 9. The present proceeding u/s 23A was filed in the year 1987. The documents reveal that the Major Settlement ended in 1970, the name of opposite party No. 1 was recorded in the R.O.R. where the type of land was mentioned as Gharabari. 9. The act is for the benefit of the Scheduled Tribe and Scheduled Caste persons and under the Act if a Scheduled Tribe or Scheduled Caste person is the owner of the land, he can file an application before the competent authority for restoration of possession of the land on the ground of unauthorized possession or otherwise by any other person than the true owner. Therefore, the question of adverse possession is essentially a question of fact. In any case it is a mixed question of law and fact. The stating point of limitation begins from the expression of hostile animus amounting to denial of title of the real owner to his knowledge. This must continue for uninterrupted period of 12 years. Merely on the basis of possession under a void transaction and nothing more title by adverse possession cannot be matured, more so when before the prescribed period has run out, the person in possession acknowledges the superior title of the real owner. Even if the possession continues uninterruptedly but the nature of the possession is not identical, the two periods cannot be tagged for the purposes of counting the total period required for maturity of title by adverse possession. 10. In this case, after examining the record, this Court is of the view that the Petitioner nowhere proved that he was in possession of the disputed land continuously for more than 12 years with hostile animus to the knowledge of its true owner. The present opposite party No. 1 deposed before the Sub-Collector that the Petitioner was in possession of the said land since last 12 years. However, that statement does not take away the burden of the Petitioner to prove that he was in possession of the disputed land with hostile animus to the knowledge of the real owner. Therefore, the claim of adverse possession cannot be accepted though opposite party No. 1 admitted that the possession of the Petitioner is for last 12 years. However, that statement does not take away the burden of the Petitioner to prove that he was in possession of the disputed land with hostile animus to the knowledge of the real owner. Therefore, the claim of adverse possession cannot be accepted though opposite party No. 1 admitted that the possession of the Petitioner is for last 12 years. A person claiming adverse possession is to specifically state the date from which he possessed the land with hostile animus to the knowledge of its real owner since that part is lacking here. 11. Therefore, this Court is not inclined to interfere with the impugned order passed by the Collector. Accordingly, the writ application is dismissed. No costs. Final Result : Dismissed