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2016 DIGILAW 506 (ORI)

State of Orissa v. Madhaba Ch. Sahoo

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Cuttack in R.F.A. No.47/2002 reversing the judgment and decree passed by the learned Civil Judge (Sr. Division), Athagarh in Title Suit No.36 of 2000. The respondent as the plaintiff had filed the suit against the appellant-State represented by the Collector of the District and another officer for declaration of his title and confirmation of possession over the suit land with further relief of permanent injunction restraining the defendant-appellants from interfering with his possession. The suit having been dismissed, the present respondent as the unsuccessful plaintiff had carried the first appeal. That appeal as has been allowed and the suit has thus been decreed granting all the reliefs as claimed, the defendants being aggrieved by the same has filed this appeal under section 100 of the Code of Civil Procedure. 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 trial court. 3. Plaintiff’s case is that his paternal grandfather, namely, Bhaiga Samantaray possessed the suit land belonging to the defendant no.1 in the year 1950 and continued as such till his death. Thereafter, plaintiff’s father remained in possession of the same as before. In course of his possession when Anabadi Case No.176 of 1955-56 was initiated for his eviction, he filed an application for grant of permanent lease of the said land to him. The application having been rejected, there was an appeal at his instance. The appellate authority then set aside the order and remitted the matter to the forum below for reconsideration. After remand, Amin being deputed to make necessary inquiry, the report has been collected to the effect that the possession of the land was with the father of the plaintiff since the time of Bhaiga Samantaray. The matter then being referred to the Sarpanch of the local Gram Panchayat, he had recommended for settlement of the land in favour of the father of the plaintiff save and except a portion for public user being is so used by the public. The record was then submitted to the Sub-Collector, Athagarh for decision. However, final decision is said to have not been rendered. The record was then submitted to the Sub-Collector, Athagarh for decision. However, final decision is said to have not been rendered. It is further stated that the land thus continued to be in possession of the father of the appellant and on his death, it is the plaintiff who is continuing with the possession of the same. Thus, the plaintiff claims that from the time of his grandfather, the suit land is in their possession with its commencement since the year 1950. So by virtue of such open, peaceful and continuous possession for much more than the statutory period, he having acquired title has advanced a claim of acquisition of title over the suit land by adverse possession. Since in the month of April, 2000, the local Tahasildar forcibly took into custody some of the fallen branches of the trees standing over the suit land and put those into auction, the suit has come to be filed after service of notice as required under section 80 of the Code. The defendants contested the claim pleading inter alia that the suit land is of Bagayat Kisam and in the records of the sabik settlement of the year 1924-25, it finds so mention together with the fact that some trees were standing over it. The possession of the suit land by the plaintiff since the time of his ancestors has been denied. The said Anabadi Case is said to be still pending. Thus, refuting the claim of the plaintiff to have been so acquired title over the suit land by adverse possession, dismissal of the suit has been the prayer. 4. Faced with the rival pleadings, the trial court framed six issues. Upon consideration of evidence available on record, it has rendered a finding that the plaintiff has failed to prove his case as such to be in possession of the suit land since the time of his grandfather, namely, Bhaiga Samantaray fulfilling all the requirements as regards acquisition of title by way of adverse possession. In view of this finding the suit stood dismissed. 5. The unsuccessful plaintiff having then carried the first appeal, the lower appellate court taking the facts and circumstances of the case as well as the evidence on record has upset the finding of the trial court on the vital issue as above. Resultantly, the plaintiff’s suit has been decreed granting him the reliefs as prayed for. 5. The unsuccessful plaintiff having then carried the first appeal, the lower appellate court taking the facts and circumstances of the case as well as the evidence on record has upset the finding of the trial court on the vital issue as above. Resultantly, the plaintiff’s suit has been decreed granting him the reliefs as prayed for. 6. The appeal has been admitted on the following substantial question of law: “Whether the lower appellate court is right in holding that the plaintiff has acquired title over the suit land by adverse possession having as such remained in possession of the suit land for upward of the period prescribed exhibiting hostile animus and exercising all the rights of ownership over the same as such to the knowledge of the State-defendant finding that although father of the plaintiff had applied before the State authority for settlement of the land in his favour yet he having not been accepted and treated as lessee, it is no reason to say that the plaintiff was not in possession of the suit land since the time of his father in denial of the title of the State-defendant, the true owner?” 7. Learned Additional Standing Counsel submits that even accepting the admitted case of the plaintiff as projected in the plaint and the evidence on record, it can safely be said in the present case that the lower appellate court has erred both in fact and law by holding the plaintiff to have perfected title over the suit land by way of adverse possession. According to him, the legal requirements for the above purpose are wholly wanting, more particularly that even admitting if for a moment and accepting that the plaintiff has been in possession of the suit land since the time of his ancestors, the same cannot enure to his benefit in claiming title over the suit land by adverse possession when it is seen that all through the title of the State, the true owner has gone on being admitted for which the possession does not even get the touch of any adverseness. It is further submitted that the view taken by the lower appellate court that the appellant nor his father having not been treated as lessee, their possession has to be taken to have been in denial of the title of the true owner, is absolutely untenable in the eye of law. It is further submitted that the view taken by the lower appellate court that the appellant nor his father having not been treated as lessee, their possession has to be taken to have been in denial of the title of the true owner, is absolutely untenable in the eye of law. It is his contention that such long possession of the suit land of the plaintiff as above when also believed, the lower appellate court’s view that he has acquired title over the suit land by adverse possession is vulnerable. Thus, he urges for recording an answer to the above substantial question of law in favour of the appellant and according urges for dismissal of the suit. 8. Learned counsel for the respondent submits all in favour of the findings recorded by the lower appellate court stating those to have been based on just and proper appreciation of evidence in the backdrop of rival pleadings as also being in consonance with the settled principles of law covering the subject. Taking great pain, he has placed the documentary evidence proved in the case, i.e., Exts.1, 2, 3 and 5 which according to him provide support to the plaintiff’s claim. It is his contention that although at one point of time, there was a move by the father of the plaintiff in praying for settlement of the suit land in his favour yet that being on the basis of open and continuous possession for upward of the period prescribed is of no fatal consequence and not a circumstance for holding that such long possession is not in denial of the title of the true owner. According to him, all the legal requirements for acquisition of title over the suit land having been pleaded and proved by the plaintiff, the claim as projected has been rightly accepted by the lower appellate court and the plaintiff has thus rightly been granted with the reliefs. 9. Admittedly the suit land measuring Ac.2.08 dec. as per the sabik settlement which has come to be recorded to the extent Ac.0.05 dec. in the later settlement belonged to the State. The plaintiff claims that his paternal grandfather began to possess the suit land in the year 1950 which continued since then coming down to the hands of the plaintiff’s father and then to the plaintiff. as per the sabik settlement which has come to be recorded to the extent Ac.0.05 dec. in the later settlement belonged to the State. The plaintiff claims that his paternal grandfather began to possess the suit land in the year 1950 which continued since then coming down to the hands of the plaintiff’s father and then to the plaintiff. There is no pleading as to under what circumstance the grandfather of the plaintiff had entered upon the suit land and what he asserted as his position vis-à-vis the suit land when he came to possess at that point of time and continued as stated; whether it was as its owner denying the title of the true owner or with a fond hope and belief of getting it settled on him as a lessee in future on his asking or as a mere tress-passer finding the land to be vacant just entering upon it. It has also not been pleaded that as to whether the possession of the suit land has been in exercise of all the rights of ownership over it denying the true owner to have any sort of right, title and interest over the same since that time on wards and thus declining to part with the possession although and resisting the move. It has been in the pleading that the possession continued as before, i.e., in the hands of the plaintiff’s father and with the plaintiff. Planting of some trees over the suit land even if by the ancestor of the plaintiff is accepted, that act itself is not enough to infer that the possession over the suit land was asserted as that of owner and as such the trees have been planted so as to reap the final pecuniary gain exclusively. Admittedly, defendant no.2 had initiated Anabadi Case No.176 of 1955-56 against the father of the plaintiff. In that very case plaintiff’s father had applied for settlement of the land by way of permanent lease in his favour. This voluntary action of the father of the plaintiff invites a legal blow to bulldoze his case. Admittedly, defendant no.2 had initiated Anabadi Case No.176 of 1955-56 against the father of the plaintiff. In that very case plaintiff’s father had applied for settlement of the land by way of permanent lease in his favour. This voluntary action of the father of the plaintiff invites a legal blow to bulldoze his case. The title of the true owner in that case stands admitted for he had applied for grant of permanent lease expressing his whole hearted intention that such possession was not in denial of the rights of the true owner over it with clear submission to accept the true owner as lessor praying to be placed in the position of a lessee so as to possess the suit land as such lessee. The intention can very well be gathered from the conduct of the father of the plaintiff that such possession even if there, was never in denial of the title of the true owner and rather in acknowledgement of the same. The position has continued as such thereafter although the plaintiff has remained in possession of the suit land without being evicted. The documentary evidence Exts.1 and 2 merely state the factum of possession and nothing else. 10. The settled position of law at this stage be stated that in a case of this nature the burden heavily lies upon the suitor to plead and prove that he has been in open, peaceful and continuous possession of the suit land for upward of the period prescribed exhibiting hostile animus in denial of the title of the true owner and exercising all the rights of ownership over the immovable property all through. The classical requirements are nec vi, nec calm and nec precario. Mere possession of the land in question for any length of time, whatsoever, it may be, does not enure to the benefit of the possessor in claiming the title over the same to have been so acquired by adverse possession and as such to establish his claim without establishing all the legal requirements. 11. It is the settled position of law that mere possession of land by a person for a length of time; does not perfect the title by adverse possession. The law has been clearly enumerated in the catena of decisions, as noted in the case of P.T. Munichikkanna Reddy and others v. Revamma and others, 2007 (1) C.J.D. (SC) 330. 11. It is the settled position of law that mere possession of land by a person for a length of time; does not perfect the title by adverse possession. The law has been clearly enumerated in the catena of decisions, as noted in the case of P.T. Munichikkanna Reddy and others v. Revamma and others, 2007 (1) C.J.D. (SC) 330. At para 23 of the said judgment, relying upon the decision of the Court in the case of Karnataka Board of Wakf v. Government of India and others; 2004 (4) 10 SCC 779, the terms with regard to peaceful, open and continuous possession as engraved in the maxim nec vi, nec calm, nec precario has been noticed as under :- “………Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show; (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. It has been next held that it is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner.” For the purpose, the court has also quoted with approval the law as enunciated in the case of Karnataka Wakf Board (supra):- “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec calm, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S.M. Karim v. Bibi Sakinal AIR 1964 SC 1254 , Parsinni v. Sukhi JT 1993 (5) SC 435 and D.N. Venkatarayappa v. State of Karnataka (JT 1997 (6) SC 155) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P. Periasami v. P. Periathambi this Court ruled that-Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 12. He must specifically plead it. In P. Periasami v. P. Periathambi this Court ruled that-Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 12. Keeping the above settled principles of law in mind and taking into account the discussion as at para-9 when it is seen that the father of the plaintiff had applied for grant of permanent lease of the suit land, he had admitted the title of the true owner at least we may say at that point of time whereby pushing the prior possession even in denial of the title of the true owner exercising all such rights of ownership to oblivion and that pales into insignificance not to be taken cognizance of for the purpose. So, there remains no further pleading and evidence that thereafter the possession from a particular point of time afresh commenced in denial of the title of the true owner. In view of that it has to be accepted that the nature of possession with that intention remains the same as it was when the application for grant of permanent lease had been submitted. Thus the very factum of exhibition of hostile animus remains as the legal want as also that such possession was in exercise of all the rights of ownership that too with the knowledge of the true owner. The above being the position, the view taken by the lower appellate court that neither the plaintiff nor the plaintiff’s father having been accepted as lessee their possession cannot be taken to be not in denial of the title of the true owner is found to be fallacious. 13. Another important factor that emerges in the case from the very documentary evidence that the plaintiff has relied upon which cannot be lost sight of. It reveals that a part of the land from out of the suit land is under the user of the general public and that is neither denied by the plaintiff nor even being explained in any manner. It reveals that a part of the land from out of the suit land is under the user of the general public and that is neither denied by the plaintiff nor even being explained in any manner. So, when the plaintiff claims title over the entire suit land by way of adverse possession, in view of such evidence on record that a part of it is being used by public in general, the possession of the plaintiff as regards the rest of the land even when accepted lands him in the position of an oscillating pendulum throughout that when the entire land is of Anabadi Kisam, it rather stands to be inferred that his possession with regard to the rest is permissive and not what the lower appellate court has said that the user of the portion of the land by general public has to be deemed to be permissive. Such a view is untenable both in law and fact. When he claims title by way of adverse possession in respect of entire land and it is found that a portion is used by public, in the absence of any explanation and positive evidence from his side that he allowed public to use as such to tide over certain difficulty as a measure of good gesture to the fellow villagers, his possession of the rest stands to be treated as permissive, being open for user by the true owner and public as and when so needed and is subjected to the like nature. Thus, I hold that the findings of the lower appellate court are liable to be set aside as to have been the outcome of erroneous application of the legal principles and taking the views running contrary to law. 14. The aforesaid discussion and reasons thus lead me to answer the substantial question of law in favour of the appellant. 15. In the result the appeal stands allowed. The judgment and decree passed by the lower appellate court are hereby set aside and those of the trial court are restored. The suit filed by the appellant as the plaintiff is hereby dismissed. However, in the peculiar facts and circumstances no order as to cost is passed.