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2017 DIGILAW 1033 (ORI)

S. Ganga Rao v. State of Orissa

2017-09-13

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. The case of the plaintiff is that the suit land is his ancestral property. He is residing in the house standing over the suit plot for more than 60 years. While the matter stood thus, the Tahasildar, Pottangi initiated OPLE Case No. 1 of 1976 under Sec.7 of the Orissa Prevention of Land Encroachments Act (hereinafter referred to as “OPLE Act”) for eviction. He filed objection stating therein that the proceeding was not maintainable. Since the case was not dropped, he instituted the suit seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, the defendant entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendant is that the suit property does not belong to the plaintiff. The same was the intermediary estate of the Maharaja of Jeypore. In the year 1952, the estate vested in the State free from all encumbrances. The house standing on the suit land is a kine house. The same belongs to the State. The suit land has been recorded in the name of the State. The plaintiff has no semblance right, title and interest over the same. The suit is barred under Sec.16 of the OPLE Act. 4. On the interse pleadings of the parties, learned trial court struck six issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the plaintiff had failed to prove that he acquired title by way of adverse possession. Held so, it dismissed the suit. The plaintiff appealed before the learned Additional District Judge, Jeypore in T.A. No.5 of 1990, which was eventually dismissed. 5. The second appeal was admitted on the substantial question of law enumerated in ground no.1 of the memorandum of appeal. The same is: “Whether the finding of the learned courts that the suit is barred under Sec.16 of the O.P.L.E. Act is justified. The said Section relates to the bar of suits in respect of matters for which provision is made in the Act. The plaintiff’s suit being for title and for permanent injunction, such questions do not come within the ambit of Sec.16 of the O.P.L.E. Act nor any provision is made in this behalf.” 6. Heard Mr. The said Section relates to the bar of suits in respect of matters for which provision is made in the Act. The plaintiff’s suit being for title and for permanent injunction, such questions do not come within the ambit of Sec.16 of the O.P.L.E. Act nor any provision is made in this behalf.” 6. Heard Mr. P.V. Balakrishna, learned counsel for the appellant and Mr. Swyambhu Mishra, learned Additional Standing Counsel for the respondent. 7. Mr. Balakrishna, learned counsel for the appellant submits that learned trial court fell into patent error of law holding that the suit is barred under Sec.16 of OPLE Act. The civil court has jurisdiction to decide the title of the plaintiff over the property in question. He further submits that plaintiff is in possession of the land for more than 60 years peacefully, continuously and to the hostile animus of the defendant and as such perfected title by way of adverse possession. Plaintiff had paid rent to the Gram Panchayat vide Exts.1, 2, 3 and 4. The ROR neither creates title nor extinguishes title. 8. Mr. Mishra, learned A.S.C. for the respondent submits that the plaintiff was in unauthorised occupation of the suit land. The house standing on the suit land is a kine house. The same belongs to the State. However, it was noticed that the plaintiff had unauthorisedly occupied of the Government land. A proceeding under Sec.7 of the OPLE Act was initiated. Order of eviction was passed. There is no evidence on record that the plaintiff is in possession of the land for more than 60 years. 9. In Abhimanyu Jee vs. Dr. Gayaprasad and others, AIR 1982 ORISSA 207, this Court held that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendants operated as res judicata and the finding was not available to be re-adjudicated in the civil court. But then, in the case of Life Insurance Corporation of India vs. M/s. India Automobiles and Co. and others, AIR 1991 SC 884 , the apex Court observed that the decision rendered by court of limited jurisdiction, that is to say, the rent control court will not operate as res judicata in the subsequent suit relating to title notwithstanding the terms of Sec.11 of the C.P.C. including Expl. VIII thereto. and others, AIR 1991 SC 884 , the apex Court observed that the decision rendered by court of limited jurisdiction, that is to say, the rent control court will not operate as res judicata in the subsequent suit relating to title notwithstanding the terms of Sec.11 of the C.P.C. including Expl. VIII thereto. Taking a cue from Life Insurance Corporation of India (supra), this Court in the case of State of Orissa vs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199 held that the decision in the case of Abhimanyu Jee (supra) must be taken to have impliedly overruled. In Bhanu Mali (Dead) Nurpa Bewa (supra), a question arose that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. 10. Notwithstanding the bar contained in Sec.16 of the OPLE Act, the civil court has jurisdiction to adjudicate the complicated question of title. 11. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law. 12. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII 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. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII 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. Nonuse 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. The date of entry into the suit land has not been mentioned. The record of right has been published in the name of the Government. A kine house situates over the suit land. The date of entry into the suit land has not been mentioned. The record of right has been published in the name of the Government. A kine house situates over the suit land. There is no evidence on record that the plaintiff is in possession of the land for more than 30 years. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. On scanning of evidence on record as well as pleadings, both the courts negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial question of law has been answered accordingly. 15. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.