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2016 DIGILAW 890 (ORI)

Hara Prasad Mohapatra v. State of Orissa

2016-10-03

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Ad hoc Additional District Judge (FTC), Nayagarh in R.F.A. No. 15/15 of 2007/2004. The appellant as the plaintiff had filed Title Suit No. 17 of 1992 for declaration of his title over the suit land; confirmation of possession as also for recovery of possession for the extent of land said to have been encroached by respondent no. 3 by the removal of these structures put up on it. The suit having been decreed, the defendants had carried appeal under section 96 of the Code of Civil Procedure. The said appeal has been allowed in part confining the grant of relief to the appellant-plaintiff to the recover the possession of the portion of the suit land encroached upon by the dispossessing the plaintiff in view of its finding that the plaintiff had been in prior possession of the same and the dispossession to have been made without taking recourse to law. The appellant being the plaintiff having felt, aggrieved by the same since the decree declaring his right, title and interest over the suit land stood set aside has filed this appeal under section 100 of the Code of Civil Procedure. 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 case of the plaintiff is that his father Jagannath has been leased out the land corresponding hal plot no. 397 and 225/2613 measuring Ac. 0.69 decimals and Ac. 0.35 decimals situated in mouza Dalaka and Odagaon respectively way back in the year 1943 by the then Ruling Chief of Nayagarh and as such he was in possession of the same. The land under plot no. 398 measuring Ac. O011 decimals belonging to the State-defendant no. 1 is situated to the east of the land under hal plot no. 397 whereas the land corresponding to hal plot no. 2225/2924 is situated to the north of the hal plot no. 2225/2613. These lands belong to the State-defendant no. 1. The land under plot no. 398 measuring Ac. O011 decimals belonging to the State-defendant no. 1 is situated to the east of the land under hal plot no. 397 whereas the land corresponding to hal plot no. 2225/2924 is situated to the north of the hal plot no. 2225/2613. These lands belong to the State-defendant no. 1. It has been pleaded that since the time of possession of the leased land by Jagannath, the lands under above noted two plots have also been in his possession i.e., from the year 1943 and as such it has come to be in possession of the plaintiff. It is also stated that although encroachment cases had earlier been initiated against the plaintiff and his father yet they have remained in continuous possession of the same. The possession is said to be open, peaceful and continuous and adverse to the true owner i.e., State-defendant no. 1. It is alleged that on a fine morning the defendant no. 3 forcibly damaged the barbed wire fence put by the plaintiff covering the land under plot no. 2098 and 2225/2613 and caused damaged to some of the standing trees although the plaintiff was in possession of the same as owner of the suit land having so acquired by adverse possession. So, the suit came to be filed thereafter claiming the reliefs as aforesaid. 4. The defendants contested the suit by filing written statement. They denied the factum of possession of the suit land by the plaintiff in respect of any portion covered under plot no. 395 and 2924. They have also denied the claim of the plaintiff over the same as regards the perfection of title by adverse possession having remained in possession since the year 1943. The allegation of encroachment by the defendant has also been denied and so also the removal of barbed wire fence and causing of damage to the trees. It is their specific case that the move of the plaintiff in filing the suit is only to grab the public property. 5. The trial court faced with the above rival pleadings framed seven issues. First going to answer issue no. It is their specific case that the move of the plaintiff in filing the suit is only to grab the public property. 5. The trial court faced with the above rival pleadings framed seven issues. First going to answer issue no. 3 as regards entitlement of the decree for a declaration of title in respect of the suit land, upon evaluation of evidence, the answer has been recorded in favour of the plaintiff that he has acquired title over the same having so acquired by adverse possession. On the next issue as regards the claim of the plaintiff for recovery of possession of the land encroached by the defendant no. 3, the answer has also been rendered in favour of the plaintiff. Accordingly, the answers to the other issues have followed holding plaintiff’s entitlement to get the damage for the illegal action of removal of the barbed wire fence and damage to the trees. In the first appeal the lower appellate court held the plaintiff to have not acquired the right, title and interest over the suit land by way of adverse possession. However, finding the plaintiff to have been in long possession of the suit land and the dispossession of defendant no. 3 to have been made by encroaching upon a portion of the suit land without following the due process of law, a pure and simple decree for restoration of possession of the suit land in favour the plaintiff has been passed by the lower appellate court making it clear that the defendants are at liberty to recover the possession of the suit property following due process of law through legally constituted proceeding and in accordance with law. 6. The appeal has been admitted on the following substantial question of law:- Whether the lower appellate court is right in reversing the finding of the trial court which had held the plaintiff to have acquired title over the suit land by adverse possession in view of the overwhelming evidence on record showing his open, peaceful and continuous possession althrough since the year 1943 with their own land adjoining the suit land on two sides? 7. Mr. 7. Mr. Bidyadhar Mishra, the learned Senior Counsel for the appellant from the beginning confines his submission only with regard to the finding of the lower appellate court by which it has set at naught the finding of the trial court on the question of plaintiff’s acquisition of title over the suit land by way of adverse possession. According to him, on the face of the overwhelming evidence as regards open, peaceful and continuous possession of the suit land by the plaintiff since the time of his father commencing from the year 1943, the lower appellate court ought to have presumed the hostile animus being exhibited by the plaintiff althrough by exercising all such rights of ownership over the same. The finding of the lower appellate court according to him is without any justifiable reason, when there was no scope for the said court to interfere with the finding of the trial court on that score which is based on just and proper appreciation of evidence, keeping in view the settled position of law governing the field. Learned counsel for the State supports the finding of the lower appellate court. According to him, since there remains the deficiency in satisfying the legal requirements for passing the tests for the purpose of recording an answer on the issue of adverse possession in favour of the plaintiff, the lower appellate court has rightly upset the same. 8. It is felt pertinent to state here that the respondent-defendants having neither challenged the decree passed by the lower appellate court as regards restoration of possession of the suit land in favour of the plaintiff finding the plaintiff to have been wrongfully dispossessed by the defendant no. 3 within a period of six months next before the institution of the suit nor having filed lany cross-objection challenging the finding on the factum of possession of the plaintiff in so far as the suit land is concerned as rendered by the lower appellate court, that part of the decree as passed by the lower appellate court in favour of the plaintiff would stand even in the event this appellant fails in this appeal in getting the decree of declaration of his title over the suit land as passed by the trial court restored. 9. 9. So, now in this appeal we are confined to answer the substantial question of law that only centres round the claim of the plaintiff as regards his declaration of title over the suit land as asserted to have been so perfected by adverse possession. It is the settled position of law that when a person who sets up the claim of acquisition of title over a piece of immovable property by adverse possession, the burden of proof lies upon him to the plead and prove the three classical illegal ingredients which are:-nec vi, nec calm and nec precario. It has to be proved that the possession was open, peaceful and continuous for upward of prescribed period and more importantly that it was by exhibiting hostile animus and denying title of the true owner as to the knowledge of the true owner. The foundation of the case of the plaintiff here is that he being the lessee in respect of the plot of land and coming to possesses the same as such has also possessed the suit lying by its sides adjoining the same and belonging to the State. So, from this plain and simple pleading, we find the nature of possession of the suit land, as to have never been by assertion of ownership over the same and claimed as such even if for a moment the possession is said to be there. The pleading in clear terms is not there that although the leasehold was possessed as being the lessee, yet the suit land was possessed asserting ownership bereft of the status as it is in respect of the leasehold and not of that nature. So, the intention of possessing the suit land as its owner in denial of the title of the true owner exercising of the rights of ownership to the knowledge of the true owner is remaining as the legal want which has gone unfed. There is no specific pleading in light of segregating the intention as regards possession in so far as the possession of the lease land is concerned with the suit lands situated by its sides. Rather from the pleading, it can be well inferred that the possession of the suit land has been as if a part of the leasehold and the possession has accordingly commenced as also continued. Rather from the pleading, it can be well inferred that the possession of the suit land has been as if a part of the leasehold and the possession has accordingly commenced as also continued. So, when the settled position of law is that mere possession of the land for any length of time does not enure to the benefit of the possessor in establishing his claim of title by adverse possession; in the absence of proof of all the above noted illegal requirements, the present claim of title by the plaintiff in my considered view squarely falls within the net and does not successfully pass through all those legal tests in so far as that claim is concerned entitling the plaintiff to decree for declaration of title over the suit land as to have been so perfected by adverse possession. Therefore, the answer to the substantial question of law does not run in favour of the appellant so as to entitle him to a decree for declaration of the title over the suit land by adverse possession. This important fact of the case has been overlooked by the courts below. The lower appellate court while even negating the above claim of the plaintiff appears to have missed this point which cuts the very root of the case of the plaintiff as regards the claim of title over the suit land by adverse possession. For the aforesaid discussion and reasons, the finding of the lower appellate court that the plaintiff has not acquired to the over the suit land by adverse possession disentitling him for decree on that behalf and setting aside the decree of the trial court to that effect hereby receives the seal of approval. 10. Resultantly, the appeal fails. However, it may be made clear that the judgment and decree passed by the lower appellate court in granting the relief restoration of the possession of the suit land to the plaintiff along with the observation as contained therein that the defendants are at liberty to evict the plaintiff from the suit land under due process of law through legally constituted proceeding and in accordance with law stands undisturbed. In the facts and circumstances of the case no order as to cost is passed.