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2016 DIGILAW 361 (ORI)

Nakul Mishra v. State of Orissa

2016-05-06

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned District Judge, Sambalpur in R.F.A. No. 66 of 2006 confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Sambalpur in C.S. No. 05 of 2005. The appellant as the plaintiff has filed the suit for declaration of right, title and interest over the land described in the schedule of the plaint and for a direction to record the suit land in his favour as also permanent injunction arraigning the State and its official as the defendants. The suit having been dismissed, the appeal had been carried under section 96 of the Code of Civil Procedure. The same having been dismissed, the present move before this Court is by filing this second appeal under section 100 of the Code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below. 3. Plaintiff’s case is that he was originally the resident of village Khinda. When Hirakud Dam Project come up over there he had to migrate to village Thelkoli being an oustee. So in the year 1956, he purchased a piece of homestead land measuring Ac0.05 decimals in the said village. He occupied the same and lived with the family in a house constructed by him over it. It is his case that adjoining land belonging to the Government was lying by the side of his purchased land and since the time of his purchase, he remained in occupation of said land. He began to occupy a portion of the Government land and started using it as garden. In course of time, he installed a huller machine and constructed a bath room over it. Thus, it is stated that the plaintiff has been in possession of the said suit land since the beginning and from the time he went to possess the land in village Thelkoli having purchased it from its owner. He claims to be in possession of the suit land for about 40 years up-till the suit. His further case is that the defendants have initiated encroachment cases against him for such occupation alleging to be unauthorized and imposed penalty. He claims to be in possession of the suit land for about 40 years up-till the suit. His further case is that the defendants have initiated encroachment cases against him for such occupation alleging to be unauthorized and imposed penalty. Despite the assurance for the final settlement of the land in favour of the plaintiff who is a project oustee and whose land in the original native village got submerged under Hirakud Dam Project, no such development in the light of settlement having taken place, the plaintiff has been forced to file the suit when the threat to evict him persisted. Defendants contested the suit denying the plaint averments. According to them, plaintiff is an encroacher in respect of the suit land and therefore action against him under O.P.L.E. Act has been stated to have been rightly taken up and it is specifically stated that the plaintiff having vacated the suit land in obedience to the order of eviction on 28.10.2004, the suit for the reliefs claimed is liable to be dismissed. 4. The trial court faced with the rival pleadings, framed five issues and taking up the most important one i.e. issue no.4 with other issues as regards the acquisition of title by the plaintiff over the suit land by adverse possession has finally answered that he has failed to prove his possession of the suit land for upward of 30 years, fulfilling all the legally required ingredients for such acquisition of title by adverse possession by leading clear, cogent and satisfactory evidence. This has resulted in dismissal of the suit. At the outset it may be stated that the lower appellate court as it appears has not gone to even look at the evidence on record being the final court of fact, and having just stated the position of law has abruptly jumped to hold that the plaintiff has not established his case to the satisfaction of the court that he has acquired title over the suit land by adverse possession. At this stage without expressing any opinion on merit and the sustainability of the finding as also on the final outcome, I am constrained to say that the manner of disposal of the appeal by the first appellate court, has not at all been as is expected from the final court of fact and falls far short as mandated under law. 5. 5. Learned counsel for the appellant submits that on a bare reading of the judgment of the lower appellate court, it can well be said that the disposal of the first appeal filed under section 96 of the Code has not been in consonance with the provision of law governing the field and he has criticized the same on the ground that the lower appellate court has even not discussed the evidence on record in finding out as to which of the ingredients for the purpose of establishment of case of acquisition of title by adverse possession has been established by plaintiff and which other ingredients he has so failed to prove to the satisfaction of the court or none of those have been established in the eye of law. According to him, the evidence of the possession of the plaintiff being overwhelming and as it has been proved by the plaintiff that he has remained in possession of the suit land since the time, he occupied the land which he purchased after he was compelled to leave his own native place being an oustee in the Dam Project, the finding ought to have been recorded that by virtue of open, peaceful and continuous possession of the suit land, the plaintiff has acquired the title by adverse possession presuming the hostile animus particularly in the facts and circumstances of the case further emphasis being given to the fact that it is not the case that the plaintiff had earlier lived in the said village but had gone for first time being forced to leave his native place and thereafter possessed the suit land with his small patch of purchased land. Thus, he contends that the courts below have failed to note of the above important factual aspects and those are the substantial questions of law which arise in this appeal. He as an alternative contends that in the facts and circumstances of the case taking a hostile view, the competent authority instead of contesting the claim, should not have hesitated to settle the land with the plaintiff. 6. Learned counsel for the State while supporting the findings of the courts below contends that the evidence on record lack in establishing a case of acquisition of title over the suit land by the plaintiff by way of adverse possession. 6. Learned counsel for the State while supporting the findings of the courts below contends that the evidence on record lack in establishing a case of acquisition of title over the suit land by the plaintiff by way of adverse possession. It is further contended that even accepting the factum of possession of the suit land by the plaintiff when there is no evidence that he has done so by exhibiting the hostile animus to the knowledge of the true owner, claiming as such the ownership of the land denying the title of the true owner, the concurrent finding of fact as also the judgment of the courts below in non-suiting the plaintiff are not liable to be interfered with in this second appeal under section 100 of the Code of Civil Procedure. He of course fairly concedes that here is a case where, the authorities of the State should have favourably considered the matter of settlement of the suit land with the plaintiff as per the rules, viewing the facts and circumstances as also his plight as a project oustee in consonance with the prevailing rehabilitation policy of the State in such cases. 7. It is the settled position of law that the burden of proof lies on the person who advanced the claim of acquisition of title by adverse possession of the immovable property belonging to another to establish that he remained in possession of the suit land openly, peacefully and continuously for upward of the prescribed period as the owner of the said land exercising all such rights, denying the title of the true owner to its knowledge. The classical requirements are ‘nec vi’, ‘nec calm’ and ‘nec precario’. One of the basic ingredients thus remains that despite remaining in possession of the property for required period openly, peacefully and continuously, the possessor must express hostile animus to the knowledge of the true owner denying the original ownership over the said property and claiming ownership unto himself all through till adjudication of the claim. 8. One of the basic ingredients thus remains that despite remaining in possession of the property for required period openly, peacefully and continuously, the possessor must express hostile animus to the knowledge of the true owner denying the original ownership over the said property and claiming ownership unto himself all through till adjudication of the claim. 8. In the instant case, accepting for a moment that the appellant has remained in possession of the suit land all along since the time of his purchase and also assuming for the sake of argument that such possession was open, peaceful and continuous in denial of the title of the true owner in exercising the right of ownership, yet just when a look is given at Ext.A which is the official document proved by the defendants coming from proper custody, the very foundation of the plaintiff’s case as structured gets shattered to such an extent that no more remains and is pushed beyond the visible range of law. The document shows that on 28.10.2004, the plaintiff has vacated the possession of the suit and that has been so recorded by the local Revenue Inspector in compliance to the order in Encroachment Case No. 717 of 2004. The plaintiff although has admitted in his evidence that such encroachment case bearing No. 717 of 2004 was initiated, yet he has not able to satisfactorily explain away the admission as regards the vacation of the suit land which is clear from the very report wherein he himself is a signatory. On the other hand when he has stated that he was highly terrorized for vacating the suit land and apprehending that he would be vacated, he filed the suit, he has just gone to deny that he had ever vacated the suit land. The local Revenue Inspector examined in the suit however has stated so about vacation of the suit land and the Additional Tahasildar coming to depose as D.W.1 has also deposed on oath to have received such vacation report. There remains absolutely no reason to disbelieve such evidence of official witnesses that the plaintiff vacated the suit land on 28.10.2004 when no such material surfaces even to infer that they had any axe to grind against the plaintiff. This leads to the conclusion that on and from 28.10.2004, the plaintiff was no more in possession of the suit land. There remains absolutely no reason to disbelieve such evidence of official witnesses that the plaintiff vacated the suit land on 28.10.2004 when no such material surfaces even to infer that they had any axe to grind against the plaintiff. This leads to the conclusion that on and from 28.10.2004, the plaintiff was no more in possession of the suit land. Further more, no other evidence stands about plaintiff’s reentry. In view of above, the prior possession of plaintiff for whatever length of time, it might have been pales into insignificance and do not come to his aid in establishing the case of acquisition of title over the suit land by adverse possession. This important aspect has lost the sight of the lower appellate court. Although as is seen he has gone to copy and paste the legal principles yet their proper applicability applying judicial mind remains wanting even such matter touching the root of the case has not been at all noticed. Therefore, this Court is not in a position to accept the submission of the learned counsel for the appellant that there arises any substantial question of law for its certification for admission of this appeal. The appeal thus does not merit admission. 9. Before parting, considering the submission of the learned counsel for the appellant and the learned counsel for the State, in the facts and circumstances of the case, it is felt just and proper to observe that this dismissal of the suit filed by the plaintiff however would not stand as a bar for the plaintiff to file an application before the competent authority for settlement of the suit land in his favour citing the reasons, justification and his plight as an oustee and in that event, it would be also open to the authority to consider the same taking into account all the relevant factors as well as the surrounding circumstances with the prevailing conditions for its disposal in accordance with law being uninfluenced the excess by any of the expressions made in this judgment which are confined to the merit of the claim of title of the plaintiff as advanced having nothing to do with the settlement if so otherwise permissible in law keeping in view that ours is a welfare State. 10. With the above observation, the appeal stands dismissed. No order as to cost.