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2016 DIGILAW 357 (ORI)

Mohammad Jamil v. State of Orissa

2016-05-05

D.DASH

body2016
JUDGMENT : This appeal has been filed against the judgment and decree passed by the learned District Judge, Kalahandi-Nuapada in Title Appeal No.1 of 1994 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Bhawanipatna in Title Suit No.17 of 1992. The original appellant, who is the predecessor-in-interest of the present appellants had filed the suit against the State for declaration of his right, title and interest over the suit land and in the alternative seeking a direction to the defendants-State to settle the suit land in his name and for permanent injunction. 2. It is the case of the plaintiff that the suit land belonging to the Government was in occupation of his father since the year 1950 and he had constructed a house over the same, residing thereon with family. It is said that after the death of the father, the plaintiff continued to possess the same and lived in that very house. When on the report of the local Revenue Inspector encroachment proceeding was initiated under the provisions of Orissa Prevention of Land Encroachment Act and Tahasildar-defendant no.2 directed for eviction imposing penalty on him, the suit has been filed. 3. The defendants have not contested the suit. However, finally the suit being heard ex parte, the trial court dismissed the same holding it to be not maintainable in view of the provision of Section 16 of the OPLE Act standing as a bar for the suit. 4. The unsuccessful plaintiff then carried an appeal under section 96 of the Code of Civil Procedure. Learned District Judge after hearing as is seen from the judgment has gone to examine the evidence let in by the plaintiff and has finally held that the plaintiff has failed to prove the case of acquisition of right, title and interest over the suit land by adverse possession. It has thus for that reason confirmed the dismissal of the suit declining to grant any relief to the plaintiff as prayed for. 5. This appeal has been admitted on the following substantial question of law: “Whether the learned District Judge in appeal filed by the appellant is justified in law in deciding the question of adverse possession and deny the plaintiff’s claim of title in absence of any issue being framed by the trial court and in any absence of any finding recorded by the learned trial court?” 6. It may be stated here that the present appellants are the legal representatives of the original appellant, who was the plaintiff in the trial court as also the appellant in the lower appellate court. 7. It is submitted by the learned counsel for the appellants that the lower appellate court has fallen in error of law by taking up the exercise of deciding the claim of right, title and interest over the suit land by the plaintiffs when no such finding was rendered by the trial court which had dismissed the suit simply on the ground of maintainability. It is further submitted that even if it is accepted for a moment that the lower appellate court was within its competence to decide it, on the face of overwhelming evidence as regards possession of suit land by the plaintiff since the time of his father, continuously for more than the period prescribed with hostile animus denying the title of true owner and claiming the same unto himself, the irresistible conclusion ought to have been that the plaintiff has the right, title and interest over the suit land and as such he is entitled to maintain the possession as its owner. Learned counsel for the State placing the relevant paragraph of the judgment of the lower appellate court submits that even accepting for a moment that the plaintiffs have been in possession of the suit land since the time of his father for quite a long period, no case for acquisition of title over the suit land by adverse possession is made out by fulfilling all the ingredients. Thus, he contends that the appeal bears no merit. 8. The suit has been decided ex parte. So, there was no necessity to frame any issue when the plaint averment remained uncontroverted. The trial court having dismissed the suit, in appeal which is a continuation of the suit, the lower appellate court in the present case cannot be said to have committed any mistake by going to decide the case of the plaintiff on merit when the evidence has been laid on that score by the plaintiff to prove the case as set up in the plaint. Even in a case which is taken up for hearing ex parte for a decision, as such, the court has the legal obligation and duty to examine the evidence in finding out as to if the plaintiff has established its case so as to be held legally entitled to the reliefs which he claims. Thus, I do not find any illegality in the approach of the lower appellate court in the matter. 9. Coming to the merit of claim of the plaintiff as regards the entitlement to the reliefs as prayed for, it is seen that the plaintiff has admitted that in the encroachment case which was initiated, he had made an application for grant of lease of the very same land to him. Therefore, even without going to look into other evidence, the very essential ingredient for establishment of a case of acquisition title by adverse possession, i.e., the hostile animus is seen to have been pushed into oblivion and as such stands lacking and does not surface. The possession of the plaintiff even if accepted for a moment to be there from the year 1950 since the time of his father and even if it is said that those are in fulfillment of all the legal requirements for establishment of a case of acquisition of title by adverse possession, pale into insignificance and becomes wholly irrelevant, the moment the plaintiff made an application for grant of lease of suit land in his favour. As in that event, he clearly admits the title of the true owner by tendering his representation for being permitted to be placed in the position of a lessee asking the owner to be his lessor. So there arises no expression of hostile animus at all and the possessor thereby rather abandons his intention to even possess from that moment and also thereafter in future if so in any way adverse to the title of the true owner. Thus, there arises no question of plaintiff possessing the land since then claiming title unto himself and in hostile to the true owner of the land denying his title. Thus, there arises no question of plaintiff possessing the land since then claiming title unto himself and in hostile to the true owner of the land denying his title. Even though, this aspect has not been dealt with in great detail by the lower appellate court, which ought to have been as it goes to the root in cutting the case of the plaintiff through and through, still this having been found to be the position on the very case set up by the plaintiff, the ultimate result of dismissal of the suit is not found liable to be disturbed as no fault is found with the same. The aforesaid discussion and reason while providing necessary answer to the substantial question of law as framed, accordingly persuades this Court to dismiss the appeal. 10. In the wake of aforesaid, the appeal stands dismissed. However, no order as to cost is passed.