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2016 DIGILAW 1219 (ORI)

STATE OF ORISSA v. UMA CHARAN SAHU

2016-12-08

A.K.RATH

body2016
JUDGMENT : Dr. A.K. Rath, J. - Defendants are the appellants against a confirming judgment. 2. Respondent as plaintiff instituted the suit for a declaration that he is in possession and enjoyment of the suit property since the year 1950 when his father was permitted to plant fruit bearing trees and none has any right on it. The case of the plaintiff is that his father Hadu Sahu approached the Tahasildar, Surada-defendant no.2 to permit him to plant fruit bearing trees on the suit schedule land. Permission was accorded to him on 19.7.1950 under L.Dis. No. 1909/50. Thereafter his father planted fruit bearing trees. Two years thereafter his father requested defendant no. 2 for consignment of the suit land. The defendant no.2 directed the R.I. to initiate consignment proceedings. While the matter stood thus, the settlement operation, where the land falls, started in the year 1980. The defendant no. 2 objected for issuance of patta in the name of the plaintiff on the ground that the suit land is "River Poromboke", which is objectionable. It is further stated that the plaintiff and his father being the lawful possession over the suit property for more than thirty years, to the knowledge of the defendants, they were estopped from stating that the land was objectionable. After issuance of notice under Section 80 C.P.C., he instituted the suit. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The specific case of the defendants is that the suit was undervalued. In the year 1950 permission was granted to the father of the plaintiff to grow fruit bearing trees on the suit schedule land along with one Bamadeb Panda. The assertion of the plaintiff that his plaintiff applied for assignment of the land in his favour in the year 1952 has been denied. The defendant no. 2 had never directed the R.I. to start assignment proceedings. The plaintiff admitted that possession of the suit land is permissive. He has no right over the suit land. The defendant no.2 initiated proceeding under the O.P.L.E. Act, being E.C. No. 281/73.74, against the plaintiff and the same is pending. No prayer has been made to quash the said proceedings. 4. Stemming on the pleadings of the parties, the learned trial court struck three issues. He has no right over the suit land. The defendant no.2 initiated proceeding under the O.P.L.E. Act, being E.C. No. 281/73.74, against the plaintiff and the same is pending. No prayer has been made to quash the said proceedings. 4. Stemming on the pleadings of the parties, the learned trial court struck three issues. To substantiate the case, the plaintiff had examined four witnesses and on his behalf, four documents were exhibited. One witness was examined on behalf of the defendants and three documents had been exhibited. 5. The learned trial court came to hold that the plaintiff is in possession of the suit land since the time of his father and, accordingly, answered Issue No. 3 in favour of the plaintiff. It further held that since the plaintiff is in possession of the suit land, simply suit for declaration is maintainable and, accordingly, answered Issue no.1 in favour of the plaintiff. Held so, the learned trial court decreed the suit. The defendants unsuccessfully challenged the judgment and decree of the learned trial court before the learned Sub-ordinate Judge, Aska in T.A. No. 20 of 1985, which was eventually dismissed. 6. The second appeal was admitted 13.10.1988 on the following substantial questions of law :- "(1) Whether a suit for mere declaration of possession is at all maintainable ; and (2) whether in absence of any pleadings or issues and also the necessary ingredients not having been satisfied, the courts below not justified in declaring adverse possession in favour of the plaintiff." 7. Heard Ms. Mishra, learned Additional Standing Counsel for the appellants and Mr. Mohanty, learned Senior Advocate for the respondent. 8. Ms. Mishra, learned Additional Standing Counsel for the appellants submits that permission was accorded to the father of the plaintiff to plant fruit bearing trees. Possession of the father of the plaintiff is permissive. She further submits that status of the land is communal. The plaintiff has no right over the suit schedule land. 9. Per contra, Mr. Mohanty, learned Senior Advocate submits that permission was accorded to the father of the plaintiff to plant fruit bearing trees. The father of the plaintiff was in possession of the suit land and thereafter the plaintiff is in possession. Thus simply suit for declaration is maintainable. He further submits that there is no illegality or perversity in the judgment of the courts below. 10. The father of the plaintiff was in possession of the suit land and thereafter the plaintiff is in possession. Thus simply suit for declaration is maintainable. He further submits that there is no illegality or perversity in the judgment of the courts below. 10. The case of the plaintiff is that his father applied for permission to defendant no.2 to plant fruit bearing trees over the suit schedule land and, accordingly, permission was granted to him on 19.7.1950. Thereafter his father planted fruit bearing trees. Since the time of his father, he is in possession over the same. Ext.1 is the certified copy of personal register 1950 of B-I of the Office of Tahasildar, Surada. It is mentioned in column no.4, "Parambokes-River". Ext.1/a is the certified copy of personal register of B.I. for 1950. It is mentioned in column no.4, "permission to plant trees in the river Parambokes". Ext.1/b is the personal registered of the year 1953. It is mentioned in column no.4 "assignment-tree patta. Petition of Hadu Sahu of Suramani. Petition dated 31.3.1953". From the last column, it appears that the R.I. was directed to submit the proposal. The certified copy of E.C.No.281/73-74 has been marked as Ext.2. The order dated 25.8.1973 shows that report was submitted by the R.I., Surada against the father of the plaintiff that he had encroached upon Ac.3.00 decimals of land and the same has been classified as river. Accordingly, notice under 'Ka' form has been issued to the plaintiff. The Amin has also submitted the report stating therein that the land is under illegal possession of the plaintiff. It is pertinent to mention here that in the remarks of the R.O.R., Ext.A, it is mentioned as "Rushikulya river". The documents, which have been exhibited by the plaintiff unerringly, show that the suit schedule land is a river. Permission granted by the defendant no.2 in favour of the father of the plaintiff is illegal. The plaintiff can not maintain a suit for declaration of title on the basis of the said illegal order. 11. The entire natural resources of the State belong to the public and Government is a trustee. Permission granted by the defendant no.2 in favour of the father of the plaintiff is illegal. The plaintiff can not maintain a suit for declaration of title on the basis of the said illegal order. 11. The entire natural resources of the State belong to the public and Government is a trustee. In M.C. Mehta v. Kamal Nath and others, (1997) 1 SCC 388 , the apex Court held that the doctrine of Public Trust primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Our legal system-based on English Common Law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. 12. In the wake of the aforesaid, the appeal is allowed. The judgment and decree passed by the courts below are set aside. There shall be no order as to costs. Final Result : Allowed