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2017 DIGILAW 1004 (ORI)

Sisula Naik v. State of Orissa

2017-09-08

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. The plaintiffs are the appellants against a reversing judgment in a suit for declaration of right, title, interest and permanent injunction. 2. The following genealogy would show the relationship of the parties. Late Sadhua (died-1962 Magat Plaintiff Late Kubera (1980) Ahalya (P.2) Late Bidyadhar (1978) Jataka (P-6) Bisikeshan (P.3) Baluri (P.4) Ambi (P.5) Bankanidhi (P.7) Baishnab (P.8) Gautam (P.9) Uttam (P.10) 3. The case of the plaintiffs is that Sadhua Nayak was the common ancestor of the plaintiffs. Sadhua had A.6.00 some odd of landed properties in village Khanditri in Gohirabani Chhak. The said lands were partitioned among the three sons of Sadhua during the hal settlement. The plots had been recorded under different khatas in respect of three branches. To save the said lands from drought, Sadhua constructed an embankment on the upper side i.e., southern side of his lands in the year 1940. He put an Adi Bandha from east to west. The water flowing from the upper side i.e., from southern side accumulated in the embankment. The lands of Sadhua are situated on the northern side of the said embankment. The eastern and western side lands of the said embankment are in higher level. Since then Sadhua and after him, the plaintiffs are utilizing the water of the said tank for the purpose of irrigation of their lands. The plaintiffs had constructed a sluice in the embankment, as a result of which, the water of the tank flows to their paddy fields. On the north-east side there is also an opening through which the excess water flows during rainy season. During the current settlement, the said embankment had been recorded in the name of the State. The plaintiffs moved the Revenue Department for recording the same in their favour. Thereafter the Settlement Authorities were directed to make a fresh enquiry. But the Settlement Authorities without making any enquiry recorded the embankment in Sarvasadharan khata with kissam Jalasaya-2 with a note in the remarks column that the same is repaired by Hindol Panchayat Samiti in respect of an area A.3.01 dec. Similarly an area A.0.87 dec. had been recorded in rakhit khata. It is further pleaded that since the date of excavation of the suit tank i.e., in the year 1940 Sadhua and after him, the plaintiffs are in possession and enjoyment of the suit tank. Similarly an area A.0.87 dec. had been recorded in rakhit khata. It is further pleaded that since the date of excavation of the suit tank i.e., in the year 1940 Sadhua and after him, the plaintiffs are in possession and enjoyment of the suit tank. They rear fish and repair the embankment as and when it is necessary. The same was not transferred by the State in favour of the Hindol Panchayat Samiti. The plaintiffs had planted trees over the embankment and are enjoying the usufructs. In view of wrong recording of the suit land in the R.O.R. the villagers disturbed in their possession, whereafter a proceeding under Section 144 Cr.P.C. was initiated before the Sub-Divisional Magistrate, Hindol. The latter directed the plaintiffs as well as the villagers not to enter into the suit embankment and directed the R.I. Babandha to catch fish and collect usufructs from the trees standing over the embankment. The plaintiffs have acquired valid title over the suit land by way of adverse possession. 4. The defendants 1 and 2 filed written statement denying the assertions made in the plaint. According to the defendants, neither Sadhua nor any of his successors including the plaintiffs had excavated the tank nor they used the water of the tank exclusively. The tank had been excavated by the villagers collectively for the common interest and benefit of all the people of village ‘Khanditri’, who use the tank for different purpose. Neither Sadhua nor the plaintiffs ever possessed the tank exclusively and as such their possession had not been noted in the R.O.R. during the settlement. It was further pleaded that the alleged sluice on the embankment had been constructed by the villagers for discharging of excess water. Opening of the embankment was made by the villagers. All the villagers of village Khanditri and other persons having lands in that area use the tank for the purpose of agriculture. The tank in question is a public tank situated on the Government land. Identification of embankment in one’s name does not create any right, title or interest in the name of the person and/or with his successors. During the current settlement, the said land had been recorded in favour of the State of Orissa. The plaintiffs have no semblance of right, title, interest nor possession over the tank or its embankment. Identification of embankment in one’s name does not create any right, title or interest in the name of the person and/or with his successors. During the current settlement, the said land had been recorded in favour of the State of Orissa. The plaintiffs have no semblance of right, title, interest nor possession over the tank or its embankment. It was further pleaded that plot no.3511, appertaining to Holding no.169 of village Khandatiri is utilized for the public purpose. Plot nos.3512 and 3506 are adjacent to plot no.3511 and Gochar lands. The plaintiffs had never possessed any of the above lands at any point of time. The tank was excavated in the year 1940. Since the plaintiffs are not in possession in respect of the tank, the question of interference by the State or the Panchayat Samiti does not arise. Since the tank is utilized by all the villagers for common purpose, the same has been kept under Sarbasadharan khata. The villagers are also rearing and catching fish. The R.O.R. was published in the year 1969. The suit had been instituted to grab the Government land, which is being utilized by the villagers. 5. The defendant no.9 also filed written statement taking the same stand as that of defendants 1 and 2. According to him, the Adi bandha was constructed by the villagers of Khanditri with a view to preserve the rain water and to utilize the same for various communal purposes like bathing, drinking and for irrigation. The same had not been excavated by Sadhua in the year 1940. Neither Sadhua nor the plaintiffs were in exclusive possession of the same. The villagers of Khanditri are in enjoyment of the water, fish and fruits of the trees. 6. On an anatomy of the pleadings of the parties, the learned trial court struck nine issues. Both parties led evidence, oral and documentary, to substantiate their cases. The learned trial court came to hold that Sadhua was not in exclusive enjoyment of the water of the tank. The plaintiffs are in possession over embankment long since. A person, who plants trees, is the owner of the trees and is entitled to enjoy the usufructs. Both parties led evidence, oral and documentary, to substantiate their cases. The learned trial court came to hold that Sadhua was not in exclusive enjoyment of the water of the tank. The plaintiffs are in possession over embankment long since. A person, who plants trees, is the owner of the trees and is entitled to enjoy the usufructs. The plaintiffs have established their right to the exclusion of others as regards the trees standing over the embankment for more than the statutory period uninterruptedly, openly and as such acquired title by way of adverse possession, but they have failed to establish their exclusive right and title over the water of the tank. It further held that in future neither the plaintiffs nor the villagers will rear fish in the tank, which may affect the embankment and declared the embankment and its surrounding with equal right of the villagers over the water of the tank. Held so, it decreed the suit in part declaring the plaintiffs’ right, title and interest over the embankment and trees standing over it and permanently injuncted the defendants not to create any disturbance in their possession. Assailing the judgment and decree, the plaintiffs filed Title Appeal before learned District Judge, Dhenkanal in Title Appeal No.21 of 1997(20/2003), which was eventually dismissed. 7. The Second Appeal was admitted on the following substantial questions of law: “(i) Whether the courts below are justified in concluding that the plaintiffs have acquired right, title and interest over the ‘Adi’ portion only but not over the water bed of the ‘Bandha’, when both ‘Adi and Water bed portions are one unit and Sadhua constructed the same ? (ii) Whether the courts below are justified in declaring that water bed portion of Bandha to be common ‘Bandha’ for all the surrounding villagers having equal right over the water of the Bandha ?” 8. Heard Mr.S.K.Samantray, learned Advocate on behalf of Mr.S.P.Mishra, learned Senior Advocate for the appellants and learned A.S.C. for respondents 1, 2 and 4 and Mr.D.P.Mohanty, learned Advocate for respondent no.3. 9. Mr.Samantray, learned Advocate for the appellants submitted that Sadhua Nayak, common ancestor of the plaintiffs had constructed the embankment over the suit land for the purpose of irrigation. The embankment is popularly known as Sadhua bandha. He planted trees over the same and enjoyed usufructs. 9. Mr.Samantray, learned Advocate for the appellants submitted that Sadhua Nayak, common ancestor of the plaintiffs had constructed the embankment over the suit land for the purpose of irrigation. The embankment is popularly known as Sadhua bandha. He planted trees over the same and enjoyed usufructs. He constructed a sluice on the embankment for the purpose of flowing water to the paddy fields. In the current settlement the same had been wrongly recorded in favour of the State. After Sadhua, the plaintiffs are in possession of the suit land peacefully, continuously with the hostile animus to the defendants. The plaintiffs rear fish in the pond and also catch fish. They are enjoying usufructs of the trees standing over the embankment. The defendants have no right, title and interest over the same. The learned trial court though held that the plaintiffs have right, title and interest over the embankment, but committed a manifest illegality in negativing the claim over the tank. The learned appellate court mechanically confirmed the judgment and decree of the learned trial court. 10. Per contra, learned A.S.C. for respondent nos.1, 2 and 4 submitted that the tank as well as embankment situates over the Government plot. In the rainy season the water accumulate in the tank. The villagers used to irrigate their lands from the water of the tank. Hindol Panchayat Samiti used to repair the embankment. Mere planting of trees over the suit land will not create title in favour of the plaintiffs. The plaintiffs are not in possession of the suit land. 11. The rival contentions made at the Bar require consideration. The learned trial court came to hold that Sadhua put the embankment in order to preserve the rainy water flowing from the southern side for irrigating the land. The suit land is a water reservoir having ridge over the Government plot. The kissam of land is Gochar. Though there is no clear evidence on record to show that in which year the embankment was constructed, but the parties have admitted its existence since the Ruler’s time i.e., prior to 1947 about 50 years back. Sadhua had constructed the embankment and not the villagers of Khanditri. The embankment adjoining the agricultural land maintained for facilitating irrigation is deemed to be a part of the agricultural land. The R.O.R. has not been correctly prepared. Sadhua had constructed the embankment and not the villagers of Khanditri. The embankment adjoining the agricultural land maintained for facilitating irrigation is deemed to be a part of the agricultural land. The R.O.R. has not been correctly prepared. The embankment and water bed should be treated as one plot under one khata. A man who plants the trees has become the owner of the same. He has right to enjoy the usufructs. It further held that Sadhua was never in exclusive enjoyment of the water of the tank. The plaintiffs have exclusive right over the trees standing on the embankment peacefully, continuously with the hostile animus to the defendants for more than a statutory period and, as such acquired title by way of adverse possession. Though it negatived absolute right and title of the plaintiffs over the water of the bandha, but injuncted the defendants that nobody will rear fish in the tank as the same may affect the embankment. The judgment suffers from internal inconsistencies. 12. 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”. 13. 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. 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) 14. There is no pleading or evidence when the predecessor-in-interest of the plaintiffs excavated the tank and constructed the embankment. There is also no evidence on record that the ancestors of the plaintiffs had planted trees. Even if a person plants trees over a Government plot, he does not acquire any indefeasible right over the same. The learned trial court on a minor discrepancy of the evidence on record declared the title of the plaintiffs over the embankment of the tank. The evidence on record shows that embankment is repaired by the Hindol Panchayat Samit. On untenable and unsupportable grounds, the learned trial court rejected the evidence of defendant no.9 holding that he is a co-villager. Who can adduce evidence in respect of the suit tank other than a co-villager? Adduction of evidence by a co-villager is not per se a ground to discard his testimony on flimsy ground. On untenable and unsupportable grounds, the learned trial court rejected the evidence of defendant no.9 holding that he is a co-villager. Who can adduce evidence in respect of the suit tank other than a co-villager? Adduction of evidence by a co-villager is not per se a ground to discard his testimony on flimsy ground. Though the learned trial court negatived the plea of the plaintiffs right and title over the suit land, but allowed the same by injuncting the defendants not to rear fish. The learned trial court made out a third case. The kissam of the land is Gochar. The plaintiffs have no right, title and interest over the suit schedule lands. They have failed to prove their title by way of adverse possession. The defendants 1 and 2 have right, title and interest over the suit schedule land and the exclusive user of the same. The learned appellate court on a threadbare analysis of the evidence on record as well as pleadings dismissed the appeal. There is no perversity or illegality in the findings of the same. The substantial questions of law are answered accordingly. 15. In the ultimate analysis, the suit must fail. The appeal is dismissed. There shall be no order as to costs.