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2017 DIGILAW 1003 (ORI)

Rajanikanta Panda v. State of Orissa

2017-09-08

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. Plaintiff is the appellant against an affirming judgment in a suit for declaration of title and permanent injunction. 2. Case of the plaintiff is that one Gopi Bisoi was the owner of Ac.24.34 cents of Jeroyati (raiyati) lands in village Nadigam within the Ex-Zamindari(Estate) of Maharaj of Jeypore of Koraput district. He was in cultivating possession of the same. After death of Gopi Bisoi, his son sold the entire ‘A’ schedule land to Sanku Sundari on 20.1.1940 by means of a registered sale deed bearing no.190/140, Ext.1 and delivered possession. On 10.4.1956 Sanku Sundari sold the land to Raghunath Panda, father of the plaintiff by means of a registered sale deed, Ext.4 and delivered possession. Raghunath Panda and his sons were enjoying the suit land.Rent was paid to the State of Orissa after the estate vested in the State under the Orissa Estate Abolition Act. After death of Raghunath Panda, there was a partition between the plaintiff and his brother. The suit property described in ‘A’ schedule fell to the share of the plaintiff. Raghunath Panda filed Mutation Case No.49 of 1966 for mutation of ‘A’ schedule land in his favour. Mutation was allowed in respect of an area Ac.17.18 dec. out of an area Ac.24.24 dec. i.e., ‘B’ schedule property. Accordingly R.O.R. was issued. The rest of the land i.e., Ac.7.18 dec. was under possession of the plaintiff. The land had been wrongly recorded in the name of State as “Patita” in settlement R.O.R. published in the year 1954. In the year 1986-1987 the Tahasildar initiated Encroachment Case against the plaintiff. Order of eviction was passed on 2.8.1992. Against the said order, he appealed. The appeal was dismissed on 5.4.1994. Thereafter he filed Revision before the R.D.C., Berhampur, which is sub-judice. It is stated that the predecessors of the plaintiff and the plaintiff were in cultivating possession of the suit land along with the ‘B’ schedule land openly and continuously for more than the statutory period of 30 years to the knowledge of the State and as such perfected title by way of adverse possession. With this factual scenario, he filed the suit seeking the relief mentioned above. 3. The defendants filed written statement denying the assertions made in the plaint. It is stated that suit is bad for misjoinder of parties, barred by time and hit under Section 16 of the O.P.L.E. Act. With this factual scenario, he filed the suit seeking the relief mentioned above. 3. The defendants filed written statement denying the assertions made in the plaint. It is stated that suit is bad for misjoinder of parties, barred by time and hit under Section 16 of the O.P.L.E. Act. The suit lands were recorded in the name of the State of Orissa in Rakhita Khata No.691/1 since 1954. The same was not challenged. The vendor of the plaintiff had no right and title over the property. Thus the vendee cannot acquire any title. The order passed by the defendants in the encroachment cases are in accordance with law and is binding on the plaintiff. 4. Stemming on the pleadings of the parties, the learned trial court struck ten issues. The learned trial court held that the plaintiff has not perfected title over the suit land by way of adverse possession. The State of Orissa has valid title and possession over the suit land. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the said judgment and decree before the learned District Judge, Koraput, which was subsequently transferred to the court of the learned Ad hoc Additional Sessions Judge, Jeypore and renumbered as Title Appeal No.1 of 2002/T.A.17 of 2000. The appeal was dismissed. 5. The Second Appeal was admitted on 5.7.2004 on the following substantial question of law. “Whether the plaintiff can claim adverse possession through his predecessor’s interest ?” 6. Heard Mrs. Jyotsnamayee Sahoo, Advocate on behalf of Mr. Manoj Kumar Mishra, Senior Advocate for the appellant and Mr. R.P.Mohapatra, learned Additional Government Advocate for the respondents. 7. Mrs. Sahoo, learned Advocate for the appellant submitted that the certified copy of the order dated 11.3.1992 passed by A.S.O. in Settlement Case No.146/92/141, Ext.8, so also the report of the Survey Knowing Commissioner, Ext.9 show that Gopi Bisoi was the original owner of the suit land. The same was the raiyati land of Gopi. After death of Gopi in the year 1940, his son sold the entire ‘A’ schedule land to Sanku Sundari on 20.1.1940 by means of a registered sale deed and delivered possession. In the year 1956 Sanku Sundari sold the said land to Raghunath Panda, father of the plaintiff on 10.4.1956 by means of a registered sale deed. Possession was duly delivered to the plaintiff. In the year 1956 Sanku Sundari sold the said land to Raghunath Panda, father of the plaintiff on 10.4.1956 by means of a registered sale deed. Possession was duly delivered to the plaintiff. Raghunath Panda was in possession of the suit land and used to pay rent. After death of Raghunath, there was a partition between the plaintiff and his brother. The suit land fell to the share of the plaintiff. In the mutation case, an area of Ac.17.18 dec. out of an area Ac.24.24 dec. was mutated and accordingly R.O.R. was issued. The rest of the land i.e., Ac.7.18 dec. was in possession of the plaintiff. But then the final R.O.R was wrongly published in the name of the State in the year 1954. In spite of the order of eviction passed on 2.8.1992, the plaintiff is still in possession of the land. The land was in possession of the vendor of the father of the plaintiff since 1940 and thereafter the plaintiff is in possession of the suit land peacefully, continuously with hostile animus to the defendants. By applying the principles of tacking, it can be said that the plaintiff has perfected title by way of adverse possession. She further submitted that the periods of adverse possession of two or more trespassers can be tacked together if one trespasser derives his interest from the other. She relied on a decision of the Patna High Court in the case of Jamuna Devi Vrs. Girija Devi and others, AIR 1983 Patna 77. 8. Per contra, Mr. Mohapatra, learned Additional Government Advocate submitted that Gopi Bisoi was not the owner of the land. Any alienation by him will not confer title. Further, both the courts have negatived the plea of adverse possession. 9. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. 10. In Karnataka Board of Wakf vs. Govt. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. 10. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779 , the apex Court observed as under : "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use 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 the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, 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. The court further observed that 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.” (emphasis laid) 11. In Gurbindar Singh and another Vrs. Lal Singh and another, AIR 1965 SC 1553 , the apex Court held thus: “xxx xxx xxx Thus this is a case of one trespasser trespassing against another trespasser. In Gurbindar Singh and another Vrs. Lal Singh and another, AIR 1965 SC 1553 , the apex Court held thus: “xxx xxx xxx Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked on to one another. As pointed out by Varadachariar J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449 : "Further the doctrine of independent trespassers will come in only when the second man trespasses upon the possession of the first or the first man abandons possession." Where it applies the principle laid down in Agency Co's case (1888) 13 AC 793, would apply and preclude the tacking of possession of successive trespassers. The following observations of Lord Macnaghten in that case are pertinent and run thus: "They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lordships' opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute 'continues to run' because there is a person in possession in whose favour it is running." This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S.2(4) of the Limitation Act thus: "defendant' includes any person from or through whom a defendant derives his liability to be sued". No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession.” 12. There is neither any pleading nor evidence on record with regard to the title of Gopi Bisoi over the suit land. Merely because the lands have been alienated successively, the same does not confer any title. The plaintiff failed to prove the title of his father’s vendor. An encroacher of a Government property has no right to alienate the same. The plaintiff is a trespasser in a suit property. Thus this is a case of one trespasser trespassing against another trespasser. In view of the authoritative pronouncement of the apex Court in the case of Gurbinder Singh (supra), the submissions of Mrs. Sahoo, learned Advocate for the appellant, have no legs to stand. Both the courts below, on an anatomy of the pleadings and evidence on record, negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. 13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.