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2015 DIGILAW 364 (ORI)

Udaya Majhi v. Hadia Majhi

2015-06-18

B.K.NAYAK

body2015
JUDGMENT B.K.NAYAK, J. - In these writ petitions the petitioners challenge the common order dated 09.05.2002 (Annexure-3) passed by the Joint Commissioner, Settlement and Consolidation, Bhubaneswar in Consolidation Revision Case Nos.709 & 710 of 2001. Since both the writ petitions involve common questions of law and fact, they were heard analogously and are being disposed of by this common judgment. 2. Disputed property appertains to L.R. Plot No.342, Ac.0.10, Plot No.344 Ac.0.19 and Plot No.344/670 Ac.0.07 under L.R. Holding No.68 corresponding to M.S. Holding No.32 and L.R. Plot No.340 Ac.0.38, Plot No.341 Ac.0.46, Plot No.343 Ac.0.05, Plot No.366 Ac.0.06 and Plot No.369 Ac.0.35 under L.R. Khata No.132 corresponding to M.S. Khata No.113 of village-Rangamatia. The total extent of land involved under both the Khatas are Ac.0.1.30 dec. 3. Present opposite party nos.1 to 3, were the petitioners in the Consolidation Revisions before the Joint Commissioner, Settlement and Consolidation and the present petitioners were the opposite parties therein. 4. Admittedly, the disputed land along with other lands totally measuring Ac.5.18 stood recorded in the name of Saiba Majhi, the father of the present petitioners in the 1921-22 and 1943-44 Settlement Records of Rights. The genealogy given below gives the interse relationship between the parties. GENEALOGY Bala Majhi Raghu Saiba Madhu Debada Hadia Jata Bhadu Bharat Kanduru Raghu Bisu Kampal Budhiram Udaya 5.In the Major Settlement record of rights published in 1979, the disputed land was recorded in the names of opposite party nos.1 and 2. Challenging the same to be erroneous and claiming declaration of title thereover, the present petitioners filed Title Suit No.5 of 1980 in the Court of the learned Munsif-Baripada. The suit having been dismissed, the petitioners filed Title Appeal No.18 of 1986-1987 before the District Judge, Baripada, which was also dismissed. The petitioners then filed Second Appeal No.178 of 1991 before this Court. During the pendency of the Second Appeal, consolidation operation was started in the suit village and, therefore, the second appeal was disposed of on 16.08.1999 setting aside the judgments of the trial Court as well as the first appellate Court and directing abatement of the suit itself. Thereafter, the petitioners filed Objection Case Nos.963 & 964 of 1999 before the Consolidation Officer, Baisinga claiming their right, title and interest over the disputed land. In the objection, the petitioners claimed that the parties originally belonged to village-Ramnagar in the district of Balasore. Thereafter, the petitioners filed Objection Case Nos.963 & 964 of 1999 before the Consolidation Officer, Baisinga claiming their right, title and interest over the disputed land. In the objection, the petitioners claimed that the parties originally belonged to village-Ramnagar in the district of Balasore. However, Saiba Majhi, the petitioners’ father migrated to village-Rangamatia (the suit village) and there he acquired disputed properties along with other properties which were recorded in his name in the 1921-22 and 1943-44 Settlement Records of Rights. After the death of Saiba Majhi, the petitioners are the owners in possession. It was further stated that the opposite parties came to village Rangamatia to stay there and seeing their pitiable condition, the petitioners allowed them to possess the suit land. Opposite party nos.1 to 3 having no right, title and interest and behind the back of the petitioners got the suit properties recorded in their names in 1978-79 Major Settlement record or rights. Challenging such recording and claiming their title over the land, the petitioners filed the suit which, as aforesaid, got abated by the High Court in the second appeal. Opposite party nos.1 to 3 filed a written statement before the Consolidation Officer claiming that the suit property along with other property having a total extent of Ac.5.18 in village-Rangamatia are the Joint ancestral properties of the parties in which the opposite parties have 1/3rd share and it was not the self acquired property of Saiba Majhi alone. It was alleged that during jointness of the family, Raghu Majhi having died, the elder brother Saiba Majhi became the Karta of joint family and, therefore, got the suit land exclusively recorded in his name in the previous settlements. It was alternatively pleaded by them that in case it was found that the property was the self acquired property of Saiba Majhi, the opposite parties being in possession thereof for more than the statutory period have acquired title by adverse possession over the same. 6. The Consolidation Officer on considering the evidence on record came to hold that there was no adequate evidence to prove that the parties originally belonged to village-Ramnagar. 6. The Consolidation Officer on considering the evidence on record came to hold that there was no adequate evidence to prove that the parties originally belonged to village-Ramnagar. It was further held that the disputed properties along with other properties standing in the name of Saiba Majhi were not the joint family properties of the parties, which continued to be recorded in the name of Saiba Majhi alone from the year 1921-22 and, therefore, the opposite parties claim of 1/3rd share in the total properties is baseless. The Consolidation Officer, however came to find that the opposite parties are possessing the suit land at least since 1952, if not earlier, with the knowledge of the petitioners and their possession is not permissive and, therefore, they have perfected their title by adverse possession. The petitioners filed two appeals bearing Appeal Nos.47 of 2000(B) and 48 of 2000(B) before the Deputy Director, Consolidation of Holdings, Baripada Range, Baripada, challenging the said order of the Consolidation Officer. By judgment dated 18.09.2001 under Annexure-2, the Deputy Director, Consolidation held that the successive records of rights of 1921-22 and 1943-44 indicate that the suit land was the self acquired properties of deceased Saiba Majhi, ancestor of appellants and, therefore, the M.S. record of rights prepared in the name of opposite parties was palpably erroneous and that the appellant-petitioners having come to know about such erroneous recording filed title suit and that the ingredients of adverse possession of respondent-opposite party nos.1 to 3 is clearly missing. It was also held by the Deputy Director that the possession of the respondent-opposite party nos.1 to 3 over the disputed land is permissible. Accordingly, Deputy Director allowed the appeals and set aside the order of the Consolidation Officer. 7. Aggrieved by the appellate order under Annexure-2, opposite party nos.1 to 3 filed Consolidation Revision Nos.709 and 710 of 2001, which was heard and allowed by the impugned common order. The revisional authority took into consideration the extract of documents from Khanapuri Yaddast No.116 dated 29.06.1967 and mistake no.401/82 dated 05.12.1969 and came to the conclusion that those documents indicated that the present opposite parties are possessing the disputed land since 1951- 52 and that the Major Settlement Record of Rights was prepared in presence of Kanduri Majhi (one of the son’s of Saiba), who signed on those documents. Accordingly, without giving any specific finding on the question of adverse possession of the opposite party nos.1 to 3, the Joint Commissioner, Settlement and Consolidation set aside the appellate order and upheld the order passed by the Consolidation Officer. 8. Learned counsel for the petitioners submits that the impugned revisional order suffers from following infirmities; (i) the appellate Court having found that the opposite parties were in permissive possession of the disputed land, the revisional authority without considering the nature of possession of the opposite parties and without giving any reason as to how the possession of the opposite parties was adverse, should not have altered the decision of the appellate authority and upheld the order of the Consolidation Officer, which is illegal and unsustainable; (ii) Khanapuri Yaddast No.116 dated 29.06.1967 and Mistake No.401 of 1982 dated 05.12.1969, which have been taken into consideration by the revisional authority were not led in evidence by any of the parties and, therefore, the revisional authority could not have relied upon the same behind the back of the petitioners; (iii) Jointness of the parties and the ancestral character of the disputed land having been disbelieved by all the authorities including the Joint Commissioner of Consolidation and that the Joint Commissioner having not given any finding as to how and when the possession of opposite party nos.1 to 3 over the disputed land became adverse and that the pleadings and evidence with regard to adverse possession having not at all been considered, the impugned order is liable to be set aside. 9. Learned counsel for opposite party nos.1 to 3 submits that the Major Settlement Record of Rights in respect of the property was prepared in the name of the opposite party nos.1 to 3 with the consent of Kanduru, one of the sons of Saiba Majhi and, therefore, it cannot be said that opposite party nos.1 to 3 have no right title over the land. His further submission is that the revisional authority having found the possession of the opposite party nos.1 to 3 over the land from 1951-52, its finding with regard to adverse possession is quite justified. 10. It is found that the appellate authority gave a specific finding that the possession of opposite party nos.1 to 3 over the disputed land in permissive. The revisional authority has not reversed such finding. 10. It is found that the appellate authority gave a specific finding that the possession of opposite party nos.1 to 3 over the disputed land in permissive. The revisional authority has not reversed such finding. One who claims acquisition of title by adverse possession must plead and prove that his possession is as of right with hostile animus, i.e., in denial of right and title of the true owner and further that such possession was open, peaceful and continues for more than the statutory period. In absence of such pleading and proof, the claim of acquisition of title by adverse possession would not succeed. Hostile animus can be shown if the possession is as of right without any attempt at concealment. But where the initial possession is permissive, in order to show that the possession became adverse to the knowledge of true owner, the claimant has to clearly plead and prove that at a subsequent point of time he exercised such overt acts in relation to his possession which would clearly amount to denial of title of the real owner. 11. In the case of Thakur Kishan Sing v. Arvind Kumar, reported in AIR 1995 SC 73 , the Hon’ble apex Court held as follows : “….. 5 As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for however length of time does not result in converting the permissive possession into adverse possession.” 12. The revisional Court has not reversed the finding of the appellate Court that the possession of opposite party nos.1 to 3 over the land in question was initially permissive. It has however simply jumped to the conclusion, relying on some remarks in the Yaddast and Mistake prepared during the course of the Major Settlement that the possession of the opposite parties is adverse, though those documents are said to have been utilized behind the back of the petitioners. It has however simply jumped to the conclusion, relying on some remarks in the Yaddast and Mistake prepared during the course of the Major Settlement that the possession of the opposite parties is adverse, though those documents are said to have been utilized behind the back of the petitioners. The revisional order also does not indicate that the possession of the opposite party nos.1 to 3 was noted in the Yaddast as adverse. The revisional Court should have tried to find out the exact pleadings of the opposite party nos.1 to 3 with regard to adverse possession and the proof of ingredients of such plea. The initial possession of the opposite parties over the land being permissive in nature, it was incumbent upon them to clearly plead and lead evidence indicating the particular point of time and the exact nature of overt act in relation to their possession, which is indicative of denial of the title of the real owners, viz., the petitioners. The revisional Court has not considered these aspects. In the circumstances, the impugned revisional order is illegal and unsustainable and the matter needs re-consideration by the revisional authority. 13. Accordingly, the impugned revisional order (Annexure-3) is set aside and the matter is remanded back to the Joint Commissioner, Settlement and Consolidation, Bhubaneswar for fresh disposal of the Consolidation Revision Case Nos.709 & 710 of 2001 only on the question of acquisition of title by opposite party nos.1 to 3 by adverse possession on the basis of pleadings and evidence already available on record. The revisions should be disposed of within a period of four months from the date of appearance of the parties before the revisional Court. To cut short the delay, the petitioners and opposite party nos.1 to 3 are directed to appear before the revisional Court on 13th July,2015. Both the writ petitions are accordingly disposed of. Petitions disposed of.