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2016 DIGILAW 1080 (ORI)

Taramani Dash v. Anirudha Ramanuja Das

2016-11-10

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. Plaintiffs are the appellants against a confirming judgment in a suit for declaration of permanent tenancy right over the suit schedule land along with other reliefs. 2. The case of the plaintiffs is that Ramanath Ramanuj Dash, Guru of defendant no.1-Anirudha Ramanuja Das, was the owner of the suit land. The predecessor of the plaintiffs and proforma defendant obtained permanent lease on payment of salami and rent. Bira Das resided over the suit plot by constructing a house and also planted valuable trees on a portion of the same. While the matter stood thus, the intermediary estate was vested to the State of Orissa in the year 1963. But the plaintiffs remained in possession over the suit property since the time of Bira Das. During hal settlement operation, the record-of-right was published in their names, but the land was recorded in the name of the defendant. Taking advantage of the same, the defendant threatened to dispossess the plaintiffs from the suit property. Hence the suit. 3. Though summons was issued to the defendant no.1, he had chosen not to contest the suit and, as such, he was set ex parte. 4. In course of hearing of the suit, the plaintiffs filed an affidavit evidence reiterating the stand taken in the plaint. The learned trial court came to hold that the State is not a party to the suit. After vesting of the estate to the State, the plaintiffs cannot claim tenancy right under ex-intermediary. The plaintiffs have not filed any document of lease. Except two rent receipts of the year 1959 and 1960, the plaintiffs have not filed any document. Rent receipts are not sufficient to establish lease and tenancy right. Held so, the learned trial court dismissed the suit. The plaintiffs unsuccessful challenged the judgment and decree of the learned trial court before the learned First Additional District Judge, Puri in RFA No.30/49 of 2011/2003, which was eventually dismissed. 5. Mr. Panda, learned counsel for the appellants submits that the plaintiffs are in possession of the suit land since the time of their ancestors. The lease was granted in favour of Bira Das in the year 1930. He further submits that after vesting of the estate, the plaintiffs are tenants under the State. Learned trial court has committed manifest illegality and impropriety in dismissing the suit. 6. The submission of Mr. The lease was granted in favour of Bira Das in the year 1930. He further submits that after vesting of the estate, the plaintiffs are tenants under the State. Learned trial court has committed manifest illegality and impropriety in dismissing the suit. 6. The submission of Mr. Panda, learned counsel for the appellants is difficult to fathom. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that “the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor”. 7. A person who bases his title on adverse possession must show by clear & unequivocal evidence that the possession was hostile to the real owner & amounted to a denial of his title to the property claimed. Burden of proof lies on him to prove the same. Mere possession of a person will not constitute adverse possession unless accompanied by open assertion of hostile title. Adverse possession is claimed against a true owner of the property, not against unknown owner. 8. The plaintiffs assert that Bira Das was a tenant under the ex-intermediary. The estate vested to the State of Orissa. Thus, the State of Orissa is a necessary party to the suit. State of Orissa has not been impleaded as a party to the suit. Further, the plaintiffs have not substantiated the plea that the ex-intermediary had granted lease in favour of Bira Das. No such deed was filed. Both the courts held that the plaintiffs have failed to establish title by adverse possession. There is no perversity or illegality in the findings of the courts below. 9. In the wake of aforesaid, this Court is of the view that the appeal does not involve any substantial question of law. Accordingly, the second appeal is dismissed.