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2017 DIGILAW 1039 (ORI)

Gyanendra Palai v. State of Orissa

2017-09-13

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is a plaintiffs’ appeal against confirming judgment in a suit for confirmation of possession and permanent injunction. 2. Case of the plaintiffs is that the suit schedule property is Ananbadi land of the ex-landlord. It was lying fallow. The same is adjacent to the homestead land of the plaintiffs. The father of the plaintiffs reclaimed the suit land and made it fit for cultivation. The plaintiffs and his father had constructed a cowshed over the same, planted trees and raised seasonal vegetables. A portion of the residential house is standing over the same. The father of the plaintiffs was in possession of the same. Thereafter, the plaintiffs are in possession of the suit land openly, peacefully and uninterruptedly for more than the statutory period and as such, perfected title by way of adverse possession. In the record-of-right, the suit land has been wrongly recorded in the name of the Government under Rakhit khata. The classification of the land is ‘Jalasaya’ and “Unnat Jojang Jogya”. Since the defendants threatened the plaintiffs to dispossess from the suit land, they instituted the suit seeking the reliefs mentioned supra. 3. Defendants 1 and 2 filed a written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit on the ground of non-issuance of notice under Sec. 80 CPC, it was stated that in the final ROR published in the year 1974, the suit land has been recorded in the name of the Government under Rakhit khata. The same belongs to Government. Neither the father of the plaintiffs nor the plaintiffs were in possession of the suit land. Since the plaintiffs are encroachers, the proceeding under the Orissa Prevention of Land Encroachment Act was initiated against them. 4. Stemming on the pleadings of the parties, the learned trial court struck eight issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. The learned trial court came to hold that the suit schedule land vested in the State. The plaintiffs have not proved that the Zamindar submitted Ekpadia in their favour. The suit schedule land has been recorded in the name of the Government in the ROR. The plaintiffs are not in possession of the suit land. The date of entry into the suit schedule land has not been mentioned. Held so, it dismissed the suit. The plaintiffs have not proved that the Zamindar submitted Ekpadia in their favour. The suit schedule land has been recorded in the name of the Government in the ROR. The plaintiffs are not in possession of the suit land. The date of entry into the suit schedule land has not been mentioned. Held so, it dismissed the suit. Unsuccessful plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the court of learned Ad hoc Addl. District Judge, FTC No.1, Cuttack and numbered as Title Appeal No. 30 of 1994. The same was eventually dismissed. 5. The second appeal was admitted on the following substantial question of law; “Whether without considering the admission of defendants in their written statements admitting possession of the plaintiffs over the suit property since 1925, the courts below are justified in saying that the plaintiffs failed to prove their possession, much less adverse possession ?” 6. Mr. Ajit Chandra Mohapatra, learned counsel for the appellants submitted that the suit schedule land was lying fallow. Father of the plaintiffs re-claimed the same in the year 1925. He planted trees and raised vegetables. A portion of the residential building is standing over the suit plot. After death of their father, the plaintiffs are in possession of the land openly, peacefully and with hostile animus to the defendants and as such, perfected title by way of adverse possession. He further contended that the record-of-right neither creates title nor extinguishes title. 7. Per contra Mr. Swayambhu Mishra, learned Addl. Standing Counsel submitted that the suit was instituted without issuing notice under Sec. 80 CPC to the defendants. There is no pleading with regard to issuance of notice. The plaint ought to have been rejected on that score. He further submitted that the date of entry into the suit land has not been mentioned. Both the courts below have rightly rejected the claim of the plaintiffs. There is no perversity in the findings of the courts below. He relied on the decision of this Court in the case of Manmohan Das v. Madhunagar Powerloom Weavers’ Co-operative Society and others, 1975 (1) CWR 366. 8. In Gangappa Gurupadappa Gugwad Vrs. Both the courts below have rightly rejected the claim of the plaintiffs. There is no perversity in the findings of the courts below. He relied on the decision of this Court in the case of Manmohan Das v. Madhunagar Powerloom Weavers’ Co-operative Society and others, 1975 (1) CWR 366. 8. In Gangappa Gurupadappa Gugwad Vrs. Rachawwa and others, AIR 1971 S.C. 442 , the apex Court held that where the plaintiff's cause of action is against a Government and the plaint does not show that notice under Sec. 80 claiming relief was served in terms of the said section, it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 9. In State of A.P and others v. Pioneer Builders, A.P, (2006) 12 SCC 119 , the apex Court in para-14 and 17 of the report held thus; “14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well-settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The Section imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagdusa & v. Secy. of State for India in Council, Sawai Singhai Nirmal Chand v. Union of India and Bihari Chowdhary v. State of Bihar). The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary (supra), the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. xxx xxx xxx 17. Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the grounds pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit. 10. In Jayasingh Mallick v. The State of Odisha and another (RSA No. 234 of 2012 disposed of on 5.10.2016), the suit was filed along with a petition under Sec. 80(2) of CPC for waiver of notice on the defendants. The learned trial court had not passed any express order granting leave. The suit was admitted. Issues were framed. Both parties adduced evidence. The learned trial court held that the suit was not maintainable for non-service of notice under Sec. 80 CPC but decided the suit on merit. The learned lower appellate court concurred with the findings of the learned trial court. Both the courts held that suit is bad for non-service of notice under Sec. 80 CPC. This Court held that once the plaint is presented along with an application under Sec. 80(2) of CPC, the Court shall pass an order. The learned lower appellate court concurred with the findings of the learned trial court. Both the courts held that suit is bad for non-service of notice under Sec. 80 CPC. This Court held that once the plaint is presented along with an application under Sec. 80(2) of CPC, the Court shall pass an order. In the event the Court is satisfied that no urgent or immediate relief need be granted in the suit, it shall return the plaint for presentation after complying with the requirements of sub-section (1). No fault can be found with the plaintiff. A party can not be made to suffer on account of an act of the Court. There is a well-recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. In view of the same, the courts below committed patent illegality in holding that suit is bad for non-service of notice under Sec. 80 CPC. 11. At the time of presentation of the plaint i.e. on 7.7.1988 a petition was filed for grant of leave to file suit without serving notice under Sec. 80 CPC. No order was passed on the said petition. On 11.7.1988, learned trial judge admitted the suit. In view of the same, the submission of the learned Addl. Standing Counsel that the plaint is liable to be rejected on the ground that no notice under Sec. 80 CPC has been served to the defendants has no leg to stand. 12. Adverse possession is not a pure question of law, but a blended one of fact and law. The suit land originally belonged to the ex-intermediary. It vested in the State after coming into operation of the Orissa Estate Abolition Act free from all encumbrances. The ROR has been published in the name of the State. The classification of the land is ‘Jalasaya’. Further, the date of entry into the suit land has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Further, the date of entry into the suit land has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Both the courts below, on a threadbare analysis of the evidence as well as pleadings, negatived the plea of adverse possession. There is no perversity or illegality in the judgments of the courts below. The substantial question of law is answered accordingly. 13. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.