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2016 DIGILAW 548 (ORI)

Sarala Mishra v. State of Orissa

2016-07-22

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Addl. District Judge, FTC-II, Keonjhar in T.A. No. 14/39 of 2006/2000 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Keonjhar in T.S. No. 96/97. The predecessor-in-interest of the appellants as the plaintiff had filed the suit against the State and its officials arraigning them as defendants for declaration of his right, title and interest over the suit land by adverse possession and for further declaration that the order passed by the respondent no.1-defendant no.2 in Encroachment Case No. 4/94-95 is unfair, arbitrary and unjust. The suit having been dismissed, the original plaintiff being aggrieved had carried the first appeal under Section 96 of the Code of Civil Procedure and that having yielded no fruitful result, the present second appeal under Section 100 of the Code has been filed. It may be stated here that during pendency of the first appeal, the original plaintiff-respondent having died, his legal representatives are pursuing the appeal and therefore, now the appellants before this Court. 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. The plaintiff’s case is that the suit land originally belonged to the State and it was Gochar kissam of land. One Ankur Jena was in possession of the same and had converted it to Sarad land. The plaintiff claims to have possessed the suit land in the year 1956. In the year 1957, the plaintiff purchased another piece of land belonging to Ankur Jena by registered sale deed. It is stated that prior to the said purchase of the land by the plaintiff from Ankur, the plaintiff was in possession of the purchased land as also the suit land on Thika basis being so permitted by Ankur. After purchase of that land belonging to Ankur, the plaintiff continued to possess the purchased as well as the suit land. It is stated that in the year 1957, the plaintiff constructed a house incurring loan and after completion of the same, he rented it out to tenants keeping a portion for his own house. Thus the suit land as also the purchased land are said to be in his possession as a compact plot. It is stated that in the year 1957, the plaintiff constructed a house incurring loan and after completion of the same, he rented it out to tenants keeping a portion for his own house. Thus the suit land as also the purchased land are said to be in his possession as a compact plot. This possession of the suit land is said to be open, peaceful and continuous in exercise of all the right of ownership denying the title of the true owner exhibiting hostile animus. It is stated that in the major settlement, the suit land was recorded in the name of the State, the defendant no.1 with noting of possession in favour of the plaintiff. In the year 1967, an encroachment case being booked against the plaintiff in respect of an area of Ac.0.08 decimals out of the total land measuring Ac.0.123 decimals under plot No. 116, order of eviction was passed. So the plaintiff applied for settlement of the land on lease basis. It was granted to him vide Lease Case No. 68/32 in respect of an area Ac.0.05 decimals and lease deed was accordingly executed and registered on 14.12.77 creating two plots i.e. plot Nos. 116/1 and 116/2 measuring Ac.0.02 decimals and Ac.0.03 decimals respectively. The remaining area of Ac.0.118 decimals is the subject matter of the suit as described in the schedule. It is stated that in the year 1993, Grade IV Employees Association of the Collectorate, Keonjhar applied for settlement of the suit land in their favour for which Lease Case No. 4 of 1993 was initiated. The plaintiff made his protest therein. The plaintiff later on was booked in another Encroachment Case bearing No. 4 of 1994-95. In that case, the plaintiff again claimed for settlement of the suit land. However, that being turned down, order of eviction was passed. The matter being challenged before this Court filing a writ application giving rise to OJC No. 1151 of 1995, it was remanded for fresh enquiry. Be that as it may, finally order of eviction followed. There was appeal and revision in the matter. The matter though again stood remanded, yet the order of eviction again came as the result. All these have ultimately led the plaintiff to file the suit. 4. Be that as it may, finally order of eviction followed. There was appeal and revision in the matter. The matter though again stood remanded, yet the order of eviction again came as the result. All these have ultimately led the plaintiff to file the suit. 4. The defendants in their written statement asserted that by virtue of the order in the Encroachment Case No. 14 of 1967-68, the suit land was ultimately vacated by the plaintiff. The claim of the plaintiff as regards open, peaceful and continuous possession of the suit land for upward of the period prescribed with hostile animus stands denied. 5. On such rival pleadings, the trial court framed nine issues. Taking up issue no. 7 which concerns with the claim of the plaintiff for decision, the trial court answered the same against the plaintiff that he has not perfected his title over the suit land by adverse possession. This has practically resulted the dismissal of the suit. The decision on the issue was called in question by carrying a first appeal as the fate of the suit hinges upon the answer to the same. The lower appellate court by going to judge the sustainability of the finding recorded by the trial court having taken up the exercise of evaluation of evidence on record in the backdrop of the rival claim as also the other circumstances emanating from evidence, has gone to agree with the decision of the trial court and accordingly affirmed it. 6. Learned counsel for the appellants submits that although the courts below have concurrently answered the issue no. 7 against the plaintiff holding him to have not perfected right, title and interest over the suit land by adverse possession yet it is unsustainable being perverse for wholly improper appreciation of evidence as also without keeping in mind the settled law covering the subject. So he contends that the following is the substantial question of law involved in this case:- “Whether the concurrent finding of the courts below on issue no. 7 suffers from the vice of perversity?” 7. So he contends that the following is the substantial question of law involved in this case:- “Whether the concurrent finding of the courts below on issue no. 7 suffers from the vice of perversity?” 7. Learned counsel for the State appearing in the case submits that the above finding on fact having been rendered concurrently by the courts below on appreciation of evidence oral and documentary evidence let in by the plaintiff, there remains no scope for this Court to say that the same are perverse since nothing in specific is shown that any material evidence have remained without due consideration which if would have been given due weightage, the finding would have been otherwise. 8. In view of the above submission, in order to search out the existence of substantial question of law in this appeal if any standing to be certified for admission, let us first of all take note of the relevant facts as stated in the plaint. 9. Admittedly, the plaintiff purchased land adjoining the suit land as stated in para-5 of the plaint. It is the case that he possessed the suit land which measures Ac.0.118 decimals. Prior to purchase of the land other than the suit land from Ankur he was possessing the same on Thika basis and thereafter having purchased the land other than the suit land as the adjoining land possessed as such. Nothing is pleaded here that the plaintiff possessed the suit land as a part of his purchased land and as its owner. It is also not pleaded either in so many words or even by providing any hint that while coming to possess the purchased land, the plaintiff no more continued to possess the suit land under the arrangement that he was earlier having with Ankur. The said sale deed has not been proved in the case to show that Ankur while delivering the possession of the land that he sold to the plaintiff had also delivered of possession of the adjoining of the land to him as that of a purchaser. Thus, the very basis of possession of the suit land which is one of the important foundational fact, even accepting the factum of possession of the suit land has not been pleaded. Thus, the very basis of possession of the suit land which is one of the important foundational fact, even accepting the factum of possession of the suit land has not been pleaded. The plaintiff merely saying to have been in possession of the suit land along with his purchased land does not suffice the purpose so as to satisfy the requirement of law for the doctrine of adverse possession to have its play in the positive. It was absolutely incumbent on his part to plead and prove that while going to possess the purchased land as its owner being sold by Ankur, the original owner, wholly shunning the nature of possession as it was by him on Thika basis earlier in so far as the suit land is concerned began to possess the suit land as like that of the purchased land as a part and parcel of it and its owner. Thus, the basic ingredient for establishing a case of acquisition of title by adverse possession over the suit land is wholly wanting in the pleading. Moreover, in this case, the plaintiff on his own showing admits to have made application for settlement of the suit land in his favour. This prayer for grant of lease clearly amounts to admission of the title of the true owner asking it to stand in the position of lesser putting the plaintiff-applicant in the position of a lessee in respect of the suit land. Thus, even if for the sake of argument, it is accepted that the plaintiff has been in possession of the suit land since the year 1957, the said possession does place him nowhere for the purpose of establishment of a case of acquisition of title by adverse possession as there remains no exhibition of hostile animus in denial of the title of the true owner and rather the title of the true owner stands accepted. It has been noted by the trial court that the plaintiff has not deposed during his examination-in-chief as regards any such overt act on his part in so far as the suit is concerned so as to infer that his possession from that date, commenced in denial of the title of the State. It has been noted by the trial court that the plaintiff has not deposed during his examination-in-chief as regards any such overt act on his part in so far as the suit is concerned so as to infer that his possession from that date, commenced in denial of the title of the State. The lower appellate court as is seen from the judgment has taken note of the settled position of law holding the field while going to re-answer the said issue no.7 by independent examination of evidence on record. It has again been found by the lower appellate court that in Encroachment Case No. 14 of 1968, the plaintiff had paid the fine amount and pleaded in para-8 of the plaint as regards the fact that the plaintiff had applied for lease. On these admitted facts when now the plaintiff is in possession of the adjoining land belonging to the State as a lessee as per his own case the question of his possessing the suit land as its owner denying the title of the true owner is not acceptable in view of the above discussed wants in the pleading and lack of evidence on those scores. 10. For the aforesaid discussion and reasons, the submission of the learned counsel for the appellant fails and this Court finds that there surfaces no such substantial question of law in this case for being certified for admission of the appeal. The appeal thus does not merit admission. 11. Resultantly, the appeal stands dismissed. No order as to cost.