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2016 DIGILAW 1043 (ORI)

Laxman Charan Hati v. State of Orissa

2016-11-04

A.K.RATH

body2016
JUDGMENT : Dr. A.K.Rath, J. This is an appeal against the judgment and decree 29.1.2011 and 10.2.2011 respectively passed by the learned District Judge, Bhadrak in RFA No.139 of 2004 reversing the judgment and decree dated 17.12.2003 and 23.12.2003 respectively passed by the learned Civil Judge (Junior Division), Jaleswar in T.S. No.194 of 2003. 2. The suit land appertains to Major Settlement Plot No.56 comprising Ac.0.15 dec., Major Settlement Plot No.60 comprising Ac.0.20 dec. out of total extent of Ac.0.70 dec. and Plot No.61 comprising Ac.0.35 dec. out of Ac.4.00 dec. The suit land was under Anabadi Khata. The case of the plaintiff is that the father of the plaintiff possessed the suit land and converted the same to agricultural land. The previous landlord had granted Amalnama Patta in favour of the father of the plaintiff and his father was paying rent to the then Zamindar. It is further stated that estate of Zamindar was managed by court of words and the management stopped to collect rent from the father of the plaintiff. At the time of vesting, rent roll was not submitted to the Government. He was minor when his father died. It is further stated that he is in possession of the suit land. During Major Settlement operation, the settlement authority wrongly entered the suit land under Abada Jogya Anabadi Khata of the Government. Since the R.I threatened the plaintiff to dispossess him, he filed the suit for declaration of title, confirmation of possession, permanent injunction and to declare the M.S. ROR wrong. 3. Defendant contested the suit without filing the written statement. 4. To substantiate the case, the plaintiff had examined two witnesses and on his behalf seven documents had been exhibited. Defendant neither examined any witness nor exhibited any document. Learned trial court came to hold that the plaintiff has right, title, interest and possession over the suit land. Assailing the judgment and decree of the learned trial court, the defendant filed RFA No.139 of 2004 before the learned District Judge, Baleswar-Bhadrak. The same was allowed. 5. Mr. Das, learned counsel for the appellant, submits that the plaintiff has perfected title by way of adverse possession. Learned trial court, on a vivid analysis of the materials on record, both oral as well as documentary and the pleadings decreed the suit. But then, the appellate court on untenable and unsupportable ground reversed the same. 6. Learned Addl. 5. Mr. Das, learned counsel for the appellant, submits that the plaintiff has perfected title by way of adverse possession. Learned trial court, on a vivid analysis of the materials on record, both oral as well as documentary and the pleadings decreed the suit. But then, the appellate court on untenable and unsupportable ground reversed the same. 6. Learned Addl. Government Advocate supports the impugned judgments. 7. Learned appellate court came to hold that the plaintiff has not pleaded adverse possession and does not say in his examination when his possession became adverse to the State. There is absolutely no evidence about possession of plaintiff’s father. There is neither any Amalnama Patta nor Rafa submitted by ex-landlord. Even no tenancy ledger was prepared after vesting. Therefore, the question of possession of the father of plaintiff is a hoax. The character of the present suit land is Bagayat and Patita. Had the suit land been cultivable land like Sarad-I or II kisam, they would have been some presumption of possession if not ancient at least recent. The C.S record of right shows that C.S Khata No.226 was Anabadi and was recorded in the name of Secretary of State of India, c/o. Hoogly Zilla Collector, Saheb Bahapur. So the very pleading that it was in possession of ex-landlord is falsified by the document as it was always under possession of then Collector of Hoogly under Anabadi Khata. In the major settlement, the suit land has been recorded in the Anabadi Khata. That apart, the description of the suit land is also erroneous and misleading. Even though the suit plot as per the plaint schedule consists of fractional plot, there is no sketch map. Further, plot no.61 comprises Ac.4.00. But then it has been described as if it comprises Ac.0.591 dec. from which plaintiff claims Ac.0.35 dec. The major settlement record of right shows that Plot No.61 comprises Ac.4.00 dec. Out of Ac.4.00 dec. which Ac.0.35 dec. is the suit land has not been described. In the absence of any sketch map, no decree can be granted in respect of fractional plot. It was further held that record of right was published in the year 1989. Under Section 42 of the Orissa Survey and Settlement Act, the limitation for correction of record of right is three years. Since the suit was filed beyond the prescribed period of limitation, it was barred by limitation. It was further held that record of right was published in the year 1989. Under Section 42 of the Orissa Survey and Settlement Act, the limitation for correction of record of right is three years. Since the suit was filed beyond the prescribed period of limitation, it was barred by limitation. 8. Adverse possession is a mixed question of fact and law. On an anatomy of the pleadings and the evidence on record, learned appellate court came to hold that there is neither pleading with regard to adverse possession, nor any evidence. Further the suit schedule land is not identifiable. The suit was filed three years after publication of M.S ROR and, as such, barred by limitation. The findings of the appellate court cannot be said to be perverse. 9. The second appeal does not involve any substantial question of law. Accordingly, the same is dismissed.