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2016 DIGILAW 360 (ORI)

Subhalaxmi Dalabehera v. State of Orissa

2016-05-06

D.DASH

body2016
JUDGMENT : The appellants have called in question the judgment and decree passed by the learned Additional District Judge, Phulbani in Title Appeal No. 05 of 2002 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Baliguda in Title Suit No. 01 of 2000. The appellants as the plaintiffs had filed the suit for declaration of their right, title, interest and possession over the suit land as also permanent injunction against the defendant State and its officials. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that the land in mouza G. Udayagiri prior to the Hal settlement completed in the year 1976 had remained un-surveyed. Therefore, sales and purchases were being made by the owners of the landed properties describing the lands involved in the transactions with their boundaries. It is stated that one Beda Anandeswar Naik was the original owner of the suit land measuring 16 cubits X 45 cubits. He had sold the same to one Gunjara Dalabebera for consideration of Rs. 60/-by executing a un-registered sale-deed. Subsequently on 16.01.1997, Bipin Chandra Dalabehera, the grandson of Gunjara had sold a portion of the suit land measuring 7 cubits X 45 cubits to the plaintiff no. 1 for consideration of Rs. 2,000/- executing an un-registered sale-deed, in that regard, and delivering the possession of the same to the said vendee. Thereafter, he possessed the rest portion till his death, whereafter his wife, the plaintiff no. 3 is in possession of the same. It is stated that in the year 1978, Bipin applied for demarcation of the suit land leading to the registration of Revenue Misc. Case No. 316 of 1978 and there the land was demarcated and report was sent to the effect that the land in question was a private land. It is next alleged that in the current settlement, the suit land has been erroneously recorded in favour of the State. So, taking advantage of the wrong entry, encroachment cases were initiated against the plaintiff no. 1, 2 and 3. 4. The defendants coming to contest the case denied the factum of sale of portions of the suit as stated in the plaint. So, taking advantage of the wrong entry, encroachment cases were initiated against the plaintiff no. 1, 2 and 3. 4. The defendants coming to contest the case denied the factum of sale of portions of the suit as stated in the plaint. They further assert that the suit plots have been correctly recorded in the settlement in favour of the State and the encroachment cases have been rightly booked against the plaintiffs for their eviction from the suit land and removal of unauthorized occupation. It is also contended that one of the suit plots is a piece of Gochara land, whereas over another, there lies a road used by the villagers at large and those are highly objectionable which also for the reasons are not available and cannot be settled being opposed to law. 5. Faced with above rival pleadings, the trial court framed as many as twelve issues. Rightly, taking up issue no. 1 for decision as to whether the suit land is a private land or not, upon examination of evidence both oral and documentary, finding has been recorded that those are Government lands. Next going to issue no. 2 and 3 as regards the sales of portions of suit land by Beda Anandeswar Naik and Bipin Chandra Dalabehera, the trial court’s findings have remained that these are all transactions in pen and papers and have never clothed the purchasers with the title in respect of land described therein. Practically answers on these issues have led to record the finding that the settlement entries are correct. In view of above, the trial court dismissed the suit. In the appeal, the lower appellate court in view of the challenge made before it framing the points for determination as mandated in law has taken up the examination of the sustainability of the finding of the trial court on the score as to if that the suit land is a piece of private land. Upon analysis of evidence, the finding of the trial court has been affirmed that it is not a piece of private land. Very rightly it has next gone to decide the factum of possession of the suit land by the plaintiff as asserted and then if by virtue of such possession, the plaintiffs have perfected right, title, interest over the suit land by way of adverse possession or not. Very rightly it has next gone to decide the factum of possession of the suit land by the plaintiff as asserted and then if by virtue of such possession, the plaintiffs have perfected right, title, interest over the suit land by way of adverse possession or not. As is seen from the judgment upon detail discussion of evidence and assessment of the same, findings have been recorded against the plaintiffs. Therefore, finally the dismissal of the suit as ordered by the trial court has received the confirmation. 6. Learned counsel for the appellants submits that the followings are the substantial questions of law which stands for being for admission of this appeal:- (a) Whether on the face of the evidence of continuity in possession coupled with semblance of title of the plaintiffs through their predecessors-in-interest, merely because the Hal Settlement ROR have been published in the name of the Government, the learned trial court is correct in holding that the settlement R.O.Rs have been rightly prepared? (b) Whether the possession of the plaintiffs through their predecessors who continued to remain in possession prior to 1944 which have been supported by both oral and documentary evidence, be not held as sufficient to establish the continuity in their possession, uninterruptedly and peacefully adverse to the interest of the true owner in the absence of any evidence from the side of the adversary controverting the same? (c) Whether the plaintiffs having been able to bring on record evidence of their continuity in possession for more than the statutory period coupled with prima facie title, be not held sufficient to entitle them to a decree of permanent injunction when there is no rebuttal evidence? (d) Whether in the facts and circumstances of the case considering the pleadings of the parties, their evidence both oral and documentary and as the same have been discussed by the learned trial court, the learned lower appellate court is correct in law in holding that the plaintiffs could not have joined in filing one suit when the provisions of order 1 Rule 1(a) and (b) squarely cover the case? 7. In order to address the submission of the learned counsel for the appellants in searching out the substantial questions of law as placed above if arise in the case for admission of this appeal, let me first of all take note of the plaint averments. 7. In order to address the submission of the learned counsel for the appellants in searching out the substantial questions of law as placed above if arise in the case for admission of this appeal, let me first of all take note of the plaint averments. The plaintiffs assert with vehemence that the suit land was originally belonging to late Beda Anandeswar Naik of G. Udayagiri and that it had been sold by him on 14.12.1944 to late Gunjara Dalabehera for consideration of Rs. 60/-. It is next stated that grandson of Gunjara namely, Bipin further sold the portion measuring 7 cubits X 45 cubits of 16.01.1976 to the plaintiff no. 1, when rest of the suit remained with Bipin Dalabehera and after him with his wife, plaintiff no. 3. So, it has been averred that the publication of record of right in the settlement operation in so far as the suit land is concerned in favour of the State is erroneous. The plaintiffs assert to have been in possession of the suit land all along. Although in clear terms it is not been stated that they have alternatively acquired right, title and interest over the suit land by adverse possession but it has been pleaded that they have remained in possession for upward of the period. Thus on construction of the pleadings such a case can be impliedly said to have been advanced and here also it can be well said that the parties were fully conscious of the plea which is implicit in the pleading when they have also led evidence on the score of long possession. 8. The concurrent finding of fact on assessment of evidence has been that the suit land is not a private land. In view of the case projected by the plaintiff, the burden of proof lies on them so as to get the relief of declaration of the right, title, interest and injunction to establish that the suit land was owned and possessed by Beda Anandeswar Naik. Absolutely, no documentary evidence whatsoever is forthcoming in that regard. Plaintiffs seek to prove the said fact through the un-registered sale-deeds which also do not contain any such particulars to even draw an inference that the land was under the private ownership. When they have relied on Ext. 3, the certified copy of the Amin report in Revenue Misc. Case no. Plaintiffs seek to prove the said fact through the un-registered sale-deeds which also do not contain any such particulars to even draw an inference that the land was under the private ownership. When they have relied on Ext. 3, the certified copy of the Amin report in Revenue Misc. Case no. 316 of 1978, there remains no such mention therein as regards the ownership of the said land to be resting with any private individual at any point of time. Even though the factum of possession of the plaintiffs so far as the suit land is concerned is accepted that itself cannot lead to a finding that the suit land is privately owned. In such state of affairs, the plaintiffs having failed to discharge the burden of proof, this Court finds no justification to term the findings as perverse calling for interference with the concurrent finding of the courts below. 9. Next comes the question of claim of acquisition of title by adverse possession. On this score, the law is too well settled that the plaintiffs carry the burden of proof and are under legal obligation to prove that they are in possession of the suit land openly, peacefully and continuously for upward of the prescribed period as the owner of the suit land exercising all such rights, denying the title of the true owner. The classical requirements are ‘nec vi’, ‘nec calm’ and ‘nec precario’. One of the basic ingredients thus remains that the possessor must enter into the possession of the land belonging to another i.e., the owner and must start possessing the same and continue with it denying the title of that true owner by exercising all the rights as such, asserting all those and claiming ownership unto himself. Here on the face of the clear finding running against the plaintiffs that the suit land is not private land which is the foundation of their case, the very ingredient of denying the title of the true owner is found completely missing. Here on the face of the clear finding running against the plaintiffs that the suit land is not private land which is the foundation of their case, the very ingredient of denying the title of the true owner is found completely missing. The plaintiff’s possession of the suit land for long length of time even being accepted for the sake of argument, the same can never be said to be in denial of the title of the State although it can be said to be in denial of that title of the private individual who according to them was having the ownership which has been found in the negative. Thus, there arises no hostile animus in possessing the land against the State. Therefore, the possession of the plaintiff for any length of time whatever it may be does not come to their aid in establishing a case of acquisition of title by adverse possession. The said doctrine thus does not come into play in the case much less to stand in support of the plaintiffs for grant of the reliefs as prayed for. In view of above discussion and reasons, this Court is not in a position to accept the submission of the learned counsel for the appellants that their arises the substantial questions of law as indicated in item no. a, b, and c of the aforesaid para-6 for being certified for admission of this appeal. In that view of the matter, further to delve upon in respect of the substantial question of law under item no. ‘d’ of the said para as urged by the learned counsel for the appellants does no more remain the necessity. 10. Resultantly, the appeal stands dismissed. No order as to cost.