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2013 DIGILAW 101 (ORI)

A. Venkat Rao v. State of Orissa

2013-04-10

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. 1. This is a plaintiff's second appeal against a reversing judgment. The plaintiff-appellant filed Title Suit No. 147 of 1988 against the State-respondent for declaration of his right, title and interest over the suit property appertaining to Plot Nos. 7 and 40 in Khata No. 513 of village Ralaba measuring Ac. 0.250 and Ac. 0.050 respectively by way of adverse possession. 2. The plaintiff's case is that he has been in continuous cultivating possession over the case land since 1955 and raising crops. During the last settlement, the suit land has been wrongly recorded as 'Rasta' under the 'Paramboke' khata of the Government. The suit plot originally a part of old survey No. 124 was shown as cultivable land belonging to different rayats. Subsequently a road from Haladiapadar to village Ralaba was constructed from the rayati lands and the said road passed on the eastern side of the suit land. The plaintiff's cultivating possession over the suit land has been reflected in the 'Adangal' prepared in the year 1955. The recording of the suit land as 'Rasta' in the R.O.R. published in 1976 is wrong. It is stated that by virtue of his long, continuous uninterrupted possession as of right over the suit land to the knowledge of the true owner for more than the statutory period he has acquired title over the same by adverse possession. On 28.10.1988 the plaintiff came to know that defendant No. 2 Tahasildar, Konisi published a notice to lease out the said land to the general public for agricultural purpose as Government surplus land fixing the date of auction to 02.11.1988. The plf3intiff approached the Revenue Inspector, who informed that notice has been issued as part of the process to evict the plaintiff from the suit land. Therefore, the plaintiff was compelled to file the suit for the aforesaid relief. 3. The defendant-respondents filed a written statement pleading that the suit land was a village site 'Paramboke' and recorded as 'Rasta'. The plaintiff was never in cultivating possession over the same. The land being recorded as Rasta, the plaintiff's encroachment is objectionable. It was also pleaded that during the recent settlement operation the suit land was found to be used as road and accordingly the record of right was prepared. It was also contended that the plaintiff cannot prove his possession and title on the basis of 'Adangal'. 4. The land being recorded as Rasta, the plaintiff's encroachment is objectionable. It was also pleaded that during the recent settlement operation the suit land was found to be used as road and accordingly the record of right was prepared. It was also contended that the plaintiff cannot prove his possession and title on the basis of 'Adangal'. 4. The Trial Court, on the basis of the pleadings of the parties, framed six issues and on the basis of the finding given on issue Nos. 2 and 5 came to hold that the plaintiff is in continuous and uninterrupted possession since 1955 for more than statutory period as of right and therefore perfected his title by way of adverse possession and accordingly decreed the suit. 5. The Judgment and decree passed by the Trial Court was challenged by the respondents in Title Appeal No. 50 of 1993 (Title Appeal No. 58 of 1992 GDC), which was heard and disposed of by the 1st Additional District Judge, Berhampur, who allowed the appeal and set aside the judgment of the Trial Court mainly on the findings that the plaintiff is not in continuous possession over the suit land and that his possession over the suit land is permissive in character which can be inferred from prevailing circumstances even without direct evidence and the possession being permissive it cannot be converted to adverse possession unless it is proved that the person in possession at some point of time asserted the adverse title to the property to the knowledge of true owner and continued as such for a period of thirty years. 6. The second appeal has been admitted on the following substantial questions of law: – (A) Whether the plaintiff has perfected his title by virtue of adverse possession in view of the documentary evidence, i.e., Ext. 1 and D coupled with oral evidence of P.W.1 to 4 and D.W.1 ? (B). Whether the presumptive value of Ext. 1 has been rebutted by adducing oral and documentary evidence by the plaintiff which is corroborated by the evidence adduced by the defendants and if the lower appellate Court acted illegally in reversing decision of the learned Trial Court basing on Ext. A ?" 7. Learned counsel for the appellant submits that the lower appellate Court has accepted Ext. 1 has been rebutted by adducing oral and documentary evidence by the plaintiff which is corroborated by the evidence adduced by the defendants and if the lower appellate Court acted illegally in reversing decision of the learned Trial Court basing on Ext. A ?" 7. Learned counsel for the appellant submits that the lower appellate Court has accepted Ext. 1, Adangal prepared in 1955 which reflects the cultivating possession of the plaintiff over the suit land, so also Ext. 4, the notice issued by the Tahasildar for leasing out the suit land for agricultural purpose showing the land as Government surplus land and that the appellate Court has disbelieved the continuous possession of the plaintiff merely because the record of right in respect of the land was prepared in the mime of State in the year 1976. It is his submission that since by 1976 the plaintiff had not perfected his title by way of adverse possession and that the suit land belonged to the Government, it was quite natural that R.O.R. would be published in the name of State and that by itself would not give rise to a presumption that the plaintiff was dispossessed or evicted from• the suit land at any point of time between 1955 and the date of publication of the R.O.R. in 1976. Therefore, the finding of the appellate Court that the plaintiff was not in continuous possession of the land, without any evidence to that effect is not sustainable. It is also his submission that the finding of the appellate Court that the plaintiff is in permissive possession has no basis inasmuch as there is neither any plea nor any evidence, direct or circumstantial, to indicate that the plaintiff's possession was permissive from the inception or at any point of time. 8. The learned Additional Government Advocate, on the other hand, submits that long and continuous possession for the statutory period without the plaintiff having any hostile animus to the knowledge of the true owner i.e. the state cannot be adverse possession and that there is no evidence on record that the plaintiff's possession over the suit land was as of right and to the knowledge of the true owner i.e. the State. 9. Both the Courts below have accepted Ext. 1 the Adangal, which reflects the cultivating possession of the plaintiff, as admissible in evidence. It is an admitted position that Ext. 9. Both the Courts below have accepted Ext. 1 the Adangal, which reflects the cultivating possession of the plaintiff, as admissible in evidence. It is an admitted position that Ext. 1 is prepared under the Madras Land Revenue Laws by the Revenue authority and, therefore it has a presumptive value. Plaintiff's evidence coupled with Ext.1 goes to prove that in 1955 the plaintiff was in cultivating possession of the suit land and the State has acknowledged the same by way of preparation of 'Adangal'. It is the evidence of the plaintiff that he was in continuous possession since then. Therefore, without there being any plea and evidence that the plaintiff was at any point of time evicted or dispossessed from the suit land, the mere preparation of the R.O.R. in 1976 settlement in the name of the State would not be enough to prove discontinuance of possession of the plaintiff over the suit land. Admittedly the State Government initiated Encroachment Case No. 294 of 1989 against the plaintiff. It is, therefore, clear that in.1955 and also in 1989 the plaintiff was in possession of the suit land. Therefore, without there being any specific plea and evidence to the effect that at any point of time between 1955 and 1989 the plaintiff was evicted or dispossessed from the suit land, it cannot be said that he was not in continuous possession. The finding of the appellate Court to this effect is therefore, unsustainable. 10. The lower appellate Court has observed that permissive possession of the plaintiff is inferred from the circumstances. But it has not indicated any circumstance from which such inference can be drawn. In course of hearing, the learned Additional Government Advocate also failed to point out any material or evidence to support the observation of the lower appellate Court. As it appears, the Adangal only reflects the possession of the plaintiff over the land. Unless the possession of the plaintiff over the suit land is referable to any government lease, licence or grant in favour of the plaintiff, it cannot be presumed that possession of the plaintiff was permissive. No such plea or evidence is available. Therefore, it must be held that finding of the lower appellate Court that the plaintiff's possession is permissive is wholly without basis. 11. Evidence of the plaintiff shows that he has been in open and continuous possession over the suit land. No such plea or evidence is available. Therefore, it must be held that finding of the lower appellate Court that the plaintiff's possession is permissive is wholly without basis. 11. Evidence of the plaintiff shows that he has been in open and continuous possession over the suit land. Even the State by way of preparation of the Adangal (Ext. 1) has acknowledged the possession of the plaintiff. It is trite law that possession in order to be adverse to the true owner need not be specifically brought to the knowledge of the true owner. It is sufficient if it is open and without any attempt at concealment. Evidence on record being suggestive of the fact that the plaintiff is cultivating the land openly it must be held that he has the hostile animus and it was to the knowledge of the State. Therefore, the contention of the learned Additional Government Advocate has no force. 12. In the aforesaid analysis the impugned appellate judgment is set aside and that of the Trial Court is restored and the plaintiff's suit for declaration of right, title and interest over the suit land is decreed with costs. The Second Appeal is accordingly allowed. Appeal allowed.