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2017 DIGILAW 1133 (ORI)

Md. Azhar v. Tahasildar, Champua

2017-10-11

D.DASH

body2017
JUDGMENT : 1. This appeal under section 100 of the Code of Civil Procedure has been filed questioning the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No. 31 of 2002. The appellants as the plaintiffs had filed the suit for declaration of right, title, interest and possession over the suit properties with further prayer for issuance of permanent injunction. Being aggrieved by the judgment and decree passed by the trial court, they had filed the above noted first appeal. By the impugned judgment and decree, the lower appellate court has set aside the judgment and decree passed by the trial court and then has directed the appellants (plaintiffs) for approaching the respondent (defendant no.1) by filing an application under section 8(A) of the Odisha Prevention of Land Encroachment Act (for short, the OPLE Act) for its disposal in accordance with law in the Encroachment case No. 183 of 1976-77. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiffs case is that about 50 years prior to the suit, the grandfather of the plaintiffs namely, Abdul Gaffar had made the suit land fit for cultivation. According to their case, the land in suit is positioned to the immediate north of their land and house standing over it admeasuring Ac. 0.021 decimals standing recorded in the name of the father of the plaintiffs. It is further stated that grandfather of the plaintiffs althrough during his lifetime after making the land fit for cultivation continued to carry out the cultivation activities over there and possessed the same as such. It is further stated that such possession was like the owner in exercising all the rights of ownership and after his death, the father of the plaintiffs namely, Ainul Haque continued to so possess and cultivate the suit land. Ainul having died, the plaintiffs as legal heirs are continuing to possesses the suit land. It is further stated that such possession was like the owner in exercising all the rights of ownership and after his death, the father of the plaintiffs namely, Ainul Haque continued to so possess and cultivate the suit land. Ainul having died, the plaintiffs as legal heirs are continuing to possesses the suit land. It is the further case of the plaintiffs that although many other persons belonging to Mohammadian community are in forcible occupation of the Government land in the nearby area, as ascertainment to be under their encroachment through measurement by the local Revenue Inspector, no proceeding under the OPLE Act has yet been initiated against any of those encroachers since they are very influential persons. However, finding the plaintiffs’ father to be a simpleton and innocent, the Revenue Inspector having reported that the suit land was under his encroachment, Encroachment Case No. 183 of 1976-77 had been initiated. It is also stated that such possession of the suit land since the time of the grandfather of the plaintiffs, then by their father is known to all concerned and it is for upward of a period of much more than 30 years. Be that as it may, the plaintiffs father had filed the show-cause in the said encroachment case and had also sought for settlement of the said land in his favour. The land however, having not been so settled as prayed for by the father of the plaintiffs, notice under section 7 of the OPLE Act was issued. Plaintiffs father then had filed an appeal bearing Encroachment Appeal No. 13 of 1976. The appellate authority had remanded the matter for due enquiry and disposal afresh. On remand, the Tahasildar has dropped the proceeding by imposing penalty of Rs. 10/- per annum. It is stated that Ainul Haque, the father of the plaintiffs has expired on 08.01.1979 and these plaintiffs were not at all aware of any such order being passed by the Tahasildar. On 25.08.1980 when they came to know about the same, they filed the appeal bearing Encroachment Appeal No. 01 of 1980. The appellate court therefore again remanded the matter for rehearing and disposal on merit. On 25.08.1980 when they came to know about the same, they filed the appeal bearing Encroachment Appeal No. 01 of 1980. The appellate court therefore again remanded the matter for rehearing and disposal on merit. When the matter stood thus, the plaintiffs to their utter surprise came to know from reliable sources that an order has been passed by the Tahasildar in Certificate Case No. 12 of 1985 directing the local Revenue Inspector to put the suit property in public auction for sale for the purpose of collection of a sum of Rs. 196.35/- towards back rent and penalty as per the order in Encroachment Case No. 183 of 1976-77. It is further stated that the plaintiffs were never noticed in that certificate proceeding initiated under the provisions of Orissa Public Demand and Recovery Act (for short, the OPDR Act). It is also stated that on 25.03.1987, the Revenue Inspector, Champua came to the house of the plaintiffs and demanded the payment of the said amount and on failure to vacate the suit land. The plaintiffs resisted the said threatened action, asserting their possession over the suit land since the time of their ancestors for more than 50 years. However, the Revenue Inspector without listening to the plaintiffs insisted them to deposit the amount giving an ultimatum date i.e. 31.03.1987. The plaintiffs case is that they have acquired the title over the suit land by way of adverse possession. It is said that the title of the State has long since been extinguished in view of the long, continuous, uninterrupted and peaceful possession of the suit land by the plaintiffs since the time of their ancestors to the knowledge of all concerned including the State authorities. Apprehending coercive action by the authorities of the State, the plaintiffs filed the suit for declaration of their right, title, and interest over the suit land; and for correction of the record of right in their name as well as for increase of the land area from Ac. 1.39 decimals to Ac. 0.70 decimals; for permanently injuncting the defendants not to enter upon the suit land; and also for declaring the very institution of the certificate proceeding under PDR Act against them to be arbitrary and illegal. 4. 1.39 decimals to Ac. 0.70 decimals; for permanently injuncting the defendants not to enter upon the suit land; and also for declaring the very institution of the certificate proceeding under PDR Act against them to be arbitrary and illegal. 4. The defendants resisting the claim of the plaintiffs while raising the technical objection relating to the maintainability of the suit in view of the bar contained under section 16 of the OPLE Act, have also gone to deny the factum of possession of the suit land by the grandfather of the plaintiffs after having made it fit for cultivation 50 years prior to the suit and althrough during his lifetime. They have also denied the factum of possession of the suit land by the father of the plaintiffs as also the plaintiffs continuously and without any interruption for all these years since the time of their grandfather. It is stated that few years back, the plaintiffs father encroached upon the suit land for which immediately the State has initiated the proceeding under the OPLE Act against him for said illegal action. It is further stated that encroachment proceeding has been decided observing all the procedures prescribed in law. Therefore, it is said that the final order is just, proper and in consonance with law. It is further stated that pursuant to the order in the encroachment case, possession of the suit land has already been taken by driving out the plaintiffs from the said land under encroachment and the proceeding under OPDR Act has been initiated for recovery of the back rent and penalty as ordered in the Encroachment Case. It is further stated that such initiation of the said proceeding is with the knowledge of the plaintiffs. Thus, it has been finally averred that the claim of the plaintiffs that they have acquired right, title and interest over the suit land by way of adverse possession as wholly unsustainable in the eye of law. 5. Pertinent it is to state here that the trial court on the above rival pleadings having framed four issues by its judgment dated 05.09.1991 had dismissed the suit. The plaintiffs then had preferred Title Appeal No. 03 of 1991. The appellate court upon hearing found serious errors in framing of issues. 5. Pertinent it is to state here that the trial court on the above rival pleadings having framed four issues by its judgment dated 05.09.1991 had dismissed the suit. The plaintiffs then had preferred Title Appeal No. 03 of 1991. The appellate court upon hearing found serious errors in framing of issues. It was also found that the trial court has not answered even the framed issues one by one with reference to the rival case as also the evidence as mandated in law. The appellate court therefore framed five issues and remanded the suit for its disposal afresh on merit. On remand, the trial court answered the crucial issue i.e. issue no. 3 on the point of acquisition of title over the suit land by the plaintiffs by way of adverse possession in favour of the plaintiffs. So, defendants being aggrieved by the said judgment and decree passed by the trial court, preferred Title Appeal No. 02 of 1996. The lower appellate court on that occasion again found absence of any issue relating to the credibility of the Revenue Inspector’s report under Ext. 5 as also the suit being hit by the provisions of OPLE Act and OPDR Act. For that reason and as in its opinion, the answers to those issues have got direct impact on the final decision in the suit; it again remanded the matter to the trial court for fresh disposal by answering all the issues afresh. After this order of remand of the appellate court the trial court dismissed the suit. So the plaintiffs filed R.F.A. No. 01/31 of 2002. The appellate court on the said move has not granted the relief of declaration of title over the suit land in favour of the plaintiffs as also the other reliefs as prayed for. So, the plaintiffs have filed the present second appeal being not satisfied with the disposal of their first appeal simply with a direction for disposal of the encroachment case upon consideration of the claim of the plaintiffs under section 8(A) of the OPLE Act. 6. Mr. So, the plaintiffs have filed the present second appeal being not satisfied with the disposal of their first appeal simply with a direction for disposal of the encroachment case upon consideration of the claim of the plaintiffs under section 8(A) of the OPLE Act. 6. Mr. Maheswar Mohanty, learned counsel for the appellant after having taken this court through the judgments of the trial court on the final round as well as that of the appellate court and placing the evidence on record submits that once the lower appellate court has held the suit to be maintainable, it ought have proceeded to decide the claim of the plaintiffs as regards their acquisition of title over the suit land by adverse possession. He further submits that the evidence on the score of long, continuous and peaceful possession of the suit land by the plaintiffs since the time of their ancestors being overwhelming, the lower appellate court ought to have decreed the suit granting all the reliefs as prayed for. He thus contends that the following substantial question of law arises for being answered in this appeal. “The learned lower appellate court having setting aside the judgment and decree of the learned trial court and having given specific finding at para-9 of the judgment that the civil court has got jurisdiction to entertain the sit, whether is right in disposing the appeal by directing the plaintiffs to approach OPLE authority in Encroachment Case No. 183/1976-77 for its disposal on merit without going to decide the merit of the claim of the plaintiffs as laid in the suit?” 7. The specific case of the plaintiffs is that though initially the suit land did not belong to their ancestors, the suit land has been in possession of their grandfather since long and thereafter the possession has remained with their father and after him they have been so possessing the suit land as its owners. So, they claim to have perfected their title over the suit land by way of adverse possession. So, they claim to have perfected their title over the suit land by way of adverse possession. Although the lower appellate court ought to have proceeded to examine the issue on the plaintiffs’ claim of acquisition of right, title and interest over the suit land by way of adverse possession, yet it has taken the view that since as provided in section 8(A) of the OPLE Act, it is within the domain of the authority created under the OPLE Act to decide the factum of possession of the land covered under the proceeding under the OPLE Act instead of instituting the suit in the civil court, the plaintiffs should have approached the authority and exhausted the said available remedy under the provisions of said Act. 8. Without going to examine the merit of the above conclusion arrived by the lower appellate court, it is seen that though the claim of the plaintiffs with regard to the title over the suit land is founded upon the long, continuous and peaceful possession of the suit land as its owner without any interruption from any quarter, the pleadings in the plaint run wholly contrary to such claim. 9. When it is stated by the plaintiffs that their grandfather had made the suit land fit for cultivation long ago and as such continued cultivate althrough during his lifetime and after him, his son Ainul Haque, the father of the plaintiffs so continued to possessed and cultivate, lastly coming to the hands of the plaintiffs and they are now in possession; it has been categorically pleaded in the plaint that in the encroachment proceeding which was initiated against the father of the plaintiffs through whom the plaintiffs claim to have taken over the possession of the suit land, nevertheless the father of the plaintiffs in his show-cause had prayed for settlement of the said land. Accepting, the aforesaid averment of the plaint, it can therefore safely be said that the factum of prior possession of the suit land by the father of the plaintiffs and also their grandfather pales into insignificance in so far as the present claim of title of the plaintiffs by way of adverse possession is concerned. Accepting, the aforesaid averment of the plaint, it can therefore safely be said that the factum of prior possession of the suit land by the father of the plaintiffs and also their grandfather pales into insignificance in so far as the present claim of title of the plaintiffs by way of adverse possession is concerned. Father of the plaintiffs having sought for settlement of the land thus, admitted the title of the State over the suit land and thus these remains the simple case of possession accepting the ownership of the State. There is no evidence to explain the same. So, the essential ingredient i.e. the ‘hostile animus/animus possidendi’ for a finding in favour of acquisition of title over the suit land by adverse possession is conspicuously absent. In view of the settled position of law that mere possession of the suit land for any length of period does not enure to the benefit of the possessor so as to establish a claim of acquisition of title by adverse possession; here even accepting the case of the plaintiffs for a moment that they have been in possession of the suit land since the time of their grandfather, their claim of acquisition of title over the suit land by adverse possession fails as the required legal ingredients remain unfulfilled. 10. The facts pleaded in the plaint instead of satisfying all the ingredients as required for the purpose when run against their claim of acquisition of title over the suit land, the plaintiffs have to be found to be disentitled for being granted with the reliefs as prayed for. Therefore, the submission of learned Counsel for the appellants raising the substantial question of law is not acceptable as being not relatable to the case in hand. The answer to the same though may be of same academic interest, it won’t help the plaintiffs in any way in sustaining their claim as laid in the suit nor would serve any of their purpose. 11. In the wake of aforesaid, this Court finds that the appeal does not merit admission and the same is accordingly dismissed. No order as to cost.