Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1024 (ORI)

Iswar Chandra Patel v. Piter Tirkey

2017-09-12

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff no.2 is the appellant against a confirming judgment in a suit for declaration of right, title, interest over the water reservoir and permanent injunction. 2. The suit schedule property is a water reservoir, having an area of Ac.17.63 dec. described in the schedule ‘A’ of the plaint. 3. The following genealogy would show the relationship of the parties. Niranjan Gountia Lakshman Gountia Ramchandra Gountia (P-1) Bhagaban Patel (D-2) Iswar Chandra Patel (P-2) The case of the plaintiffs is that Niranjan Gountia was the common ancestor. He excavated water reservoir over Anabadi land. He was in possession and enjoyment thereof. He exercised all acts of ownership over the same and as such, perfected title by way of adverse possession. Thereafter, his son, Lakshman Gountia was in possession of the same. After death of Lakshman, plaintiff no.1 is in possession of the same. While matter stood thus, there was a partition between plaintiff no.2 and defendant no.2 in the year 1962. The plaintiff no.2 is in possession of the reservoir and exercises all acts of ownership over the same since the date of partition. The Sarpanch of Babuniktimal Gram Panchayat directed to cut the ridge of the reservoir. Thereafter, the ridge was cut on 05.11.1979 in spite of the protest made by plaintiff no.2. The Gram Panchayat had closed water channel of the reservoir to prevent the plaintiff no.2 from irrigating his agricultural lands. Gram Panchayat made a ridge in the midst of the reservoir making it unfit for irrigation. With this factual scenario, they instituted the suit seeking the relief mentioned supra. 4. Defendant no.1 filed a written statement denying assertions made in the plaint. The case of the defendant no.1 is that the disputed reservoir belonged to the State, which existed much prior to the Mc.Pherson Settlement of 1927-28. The excavation of the disputed reservoir was not permitted by the then ruler of Bamara State over Anabadi land of the State. The reservoir was excavated by the State for the benefit of the villagers for bathing and catching fish. The tenants are using the water for irrigation purposes. The predecessors-in-interest of the plaintiffs or the plaintiffs neither individually nor collectively used the water of the reservoir. The claim of the plaintiff over the suit reservoir by way of adverse possession is denied. The plaintiff and his predecessors-in-interest were the Gountia of the village. The tenants are using the water for irrigation purposes. The predecessors-in-interest of the plaintiffs or the plaintiffs neither individually nor collectively used the water of the reservoir. The claim of the plaintiff over the suit reservoir by way of adverse possession is denied. The plaintiff and his predecessors-in-interest were the Gountia of the village. It is further pleaded that the village Gountia was a servant during Durbar administration. He was the custodian of the State properties. The State has transferred the suit reservoir along with other properties to Mahulpali Gram Panchayat. Mahulpali Gram Panchayat possessed the suit reservoir exclusively till Babuniktimal Gram Panchayat was created. Babuniktimal Gram Panchayat was in possession of the same till 11.01.1968. The Gram Panchayat by way of adverse possession perfected their title over the reservoir. It is further pleaded that the statutory notice under Section 80 CPC suffers from legal infirmities as the suit being instituted against the Gram Panchayat beyond six months from the cause of action i.e. 05.11.1979. Thus the suit is barred by limitation. The plaintiff no.2 was a lessee for the purpose of fishing in the reservoir. 5. Defendant nos.3 to 5 filed a written statement supporting the stand of defendant no.1. 6. On the inter se pleadings of the parties, the learned trial court struck seven issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the plaintiffs have failed to establish that they have right, title and interest over the reservoir. They failed to prove that they acquired title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful plaintiffs filed T.A. No. 20 of 1988 in the court of the learned District Judge, Sambalpur, which was subsequently transferred to the court of the learned Additional District & Sessions Judge, Sambalpur and renumbered as T.A. No. 20/4 of 1988/90. The same was eventually dismissed. 7. The Second Appeal was admitted on the following substantial question of law enumerated in the ground no.6 (b) of the appeal memo. The same is:- “6.(B) Whether the mere user by the villagers of the suit tank/kata and improvement of the same with Government aid can disentitle the plaintiffs to claim right over the same and whether on the above consideration the learned courts below are justified in discarding the plaintiffs case ?” 8. Heard Mr. The same is:- “6.(B) Whether the mere user by the villagers of the suit tank/kata and improvement of the same with Government aid can disentitle the plaintiffs to claim right over the same and whether on the above consideration the learned courts below are justified in discarding the plaintiffs case ?” 8. Heard Mr. Asutosh Mahanta, learned counsel for the appellant and R.P. Mohapatra, learned Additional Government Advocate for the respondent nos.3 to 5. None appears for respondent nos.1 and 2. 9. Mr. Mahanta, learned counsel for the appellant submits that the reservoir was excavated by Niranjan. He exercised all acts of ownership over the same. After Niranjan, his son Lakshman was in possession of the same. In the family partition, the water reservoir fell to the share of plaintiff no.2. He is in possession of the same. He used water of the reservoir for irrigation of his agricultural land. Since plaintiff no.2 is in possession of the water reservoir for more than the statutory period, he has perfected title by way of adverse possession. 10. Per contra, Mr. Mohapatra, learned Additional Government Advocate submits that there is no evidence on record when the suit reservoir was excavated. The date of entry into the suit property has not been mentioned. The suit reservoir has been transferred by the State to the Gram Panchayat. The Gram Panchayat used to put the water reservoir into auction. In some occasion, the plaintiffs participated in the auction. They being the highest bidder, the bid was knocked down in their favour. They made an application for repair of the water reservoir. Money had been sanctioned in their favour. They had received the same. 11. The plea of adverse possession is not a pure question of law, but a blended one of fact and law there is neither pleading nor evidence on record that the defendants perfected their title by way of adverse possession. 12. 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. 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) 13. There is neither any pleading nor evidence on record as to when the water reservoir was excavated. The date of entry into the suit schedule property has not been mentioned. D.W.1, Sarpanch of the Gram Panchayat in evidence has stated that the water reservoir has been transferred to the Gram Panchayat. The evidence on record reveals that the water reservoir has been transferred in favour of the Gram Panchayat. Ext.A is the application by the villagers. The villagers made an application for excavation of the water reservoir. Plaintiff no. 2 is a signatory to the said application (Ext.A/1). The evidence on record reveals that the water reservoir has been transferred in favour of the Gram Panchayat. Ext.A is the application by the villagers. The villagers made an application for excavation of the water reservoir. Plaintiff no. 2 is a signatory to the said application (Ext.A/1). Ext.B shows that an agreement was entered into between the plaintiff no.2 and B.D.O. The plaintiff no.2 took Rs.2000/-for excavation of water reservoir. He received final bill amount vide Ext.C. The evidence of D.W.1 further reveals that suit reservoir was put into auction. Plaintiff no.2 was the highest bidder. He participated in the auction. The evidence on record shows that the reservoir has been transferred to the Gram Panchayat. The Gram Panchayat used to maintain the same. Plaintiff no.2, knowing very well that the reservoir belonged to the Government, participated in the bid. The same was settled in his favour. Thus the element of hostile animus is absent. He was not in possession of the reservoir at any point of time. Thus, the plea of adverse possession pales into insignificance. Both the courts below have negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial question of law is answered accordingly. 14. In the result, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.