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2017 DIGILAW 118 (ORI)

Dibakar Patnayak v. State of Orissa

2017-01-27

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. The plaintiff is the appellant against a confirming judgment. 2. The case of the plaintiff is that he is in peaceful and continuous possession of the suit land for the last 30 years to the knowledge of everybody including the defendant no.2. The Tahasildar, Hindol, defendant no.2, initiated Encroachment Case No.19/91-92 against him on the basis of the report submitted by the R.I., Nizgarh. Notice was issued to him. Pursuant to issuance of notice, he appeared before the defendant no.2 and filed objection stating, inter alia, that he is in possession of the suit land. He has constructed a residential house and running a hotel. Without enquiry, the defendant no.2 directed demolition of the house. With this factual scenario, a prayer has been made for declaration of right, title and interest over the suit land and for permanent injunction restraining the defendants from creating any disturbance over his peaceful possession. An alternative prayer has been made to settle the land under the provisions of Orissa Prevention of Land Encroachment Act. 3. Pursuant to issuance of summons, the defendants entered appearance and filed written statement. Since the defendant no.2 has not signed in the written statement, the same was not accepted. However, at the time of hearing of the same, learned trial court accepted the written statement. 4. On the interse pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined four witnesses and on his behalf one document had been exhibited. On behalf of the defendants, three documents had been exhibited. 5. Learned trial court came to hold that the plaintiff could not prove the exact date, month and year of his entry into the suit land. The witnesses examined by the plaintiff made prevaricating statements. No boundary witnesses had been examined. There is no evidence on record that the plaintiff is in possession of the suit land for more than thirty years. He has not acquired title by way of adverse possession. Held so, learned trial court dismissed the suit. The plaintiff has unsuccessfully challenged the judgment and decree of the learned trial court before the learned Civil Judge (Sr. Divn.), Dhenkanal in T.A. No. 27 of 1993, which was eventually dismissed. 6. He has not acquired title by way of adverse possession. Held so, learned trial court dismissed the suit. The plaintiff has unsuccessfully challenged the judgment and decree of the learned trial court before the learned Civil Judge (Sr. Divn.), Dhenkanal in T.A. No. 27 of 1993, which was eventually dismissed. 6. The second appeal was admitted by a Bench of this Court on 21.11.2001 on the substantial question of law enumerated in paragraphs 10(A), (B) and (F) of the memorandum of appeal. The same are: “10.(A) Whether the judgment of the learned courts below are vitiated due to total non-consideration of material evidence ? (B) Whether the order for eviction from 1 decimal of land out of 46 decimals of suit plot is at all executable in absence of non-specification of the said 1 decimal of land either in Ext.A or in Ext.C which contains no boundary or sketch map ? (F) Whether non-consideration of evidence of P.W.1 which is corroborated with P.W.2 to the effect that the plaintiff is in forcible possession, openly, peacefully and continuously for 30 to 35 years vitiates the findings by the learned courts below ?” 7. Heard Mr. Satyabadi Mantry, learned counsel for the appellant and Miss Samapika Mishra, learned Additional Standing Counsel for the respondents. 8. Mr. Mantry, learned counsel for the appellant argued with vehemence that the plaintiff has constructed a restaurant over the suit land and ekes out his livelihood. He is in possession of the suit land for more than thirty years peacefully, continuously and to the hostile animus of the defendants and as such perfected title by way of adverse possession. He further submitted that the written statement filed by the defendant no.2 was not accepted since the defendant no.2 has not signed on the same in spite of the liberty granted by the learned trial court. However, at the time of hearing, learned trial court accepted the written statement and proceed to decide the suit. The procedure adopted by the learned trial court is unknown to law. He further submitted that there is cogent material on record that the plaintiff is in possession of the suit land for more than thirty years. On untenable and unsupportable grounds, learned courts below negatived the plea of adverse possession. 9. Per contra, Miss Mishra, learned Additional Standing Counsel for the respondents supported the judgments. 10. He further submitted that there is cogent material on record that the plaintiff is in possession of the suit land for more than thirty years. On untenable and unsupportable grounds, learned courts below negatived the plea of adverse possession. 9. Per contra, Miss Mishra, learned Additional Standing Counsel for the respondents supported the judgments. 10. Learned trial court travelled beyond its jurisdiction in accepting the written statement without any valid and cogent reasons. Non-acceptance of written statement has not been challenged by the defendants. The said order attained finality. But then, the plaintiff has to prove his case. Learned trial court came to hold that neither there is any pleading nor any evidence about the date, month and year of the entry of the plaintiff into the suit land. The witnesses examined by the plaintiff made prevaricating statements. There is no evidence on record that the plaintiff is in possession of the suit land for more than thirty years peacefully, continuously and to the hostile animus of the defendants. It further held that the civil court has no jurisdiction under the OPLE Act to settle the land. The findings had been affirmed by the learned appellate court. 11. 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. 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 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) 12. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Burden lies on him to prove by clear and unequivocal evidence that his possession over the suit property was hostile to the State and amounted to denial of title of the State and such possession was more than 30 years by the date of filing of the suit. The plaintiff has filed the suit as an encroacher of the Government land. Mere continuous possession of more than 30 years is not suffice. To prove hostile animus against the Government, one has to come up with a very strong case and show that in spite of encroachment case he is in possession of the land more than 30 years from the date of termination of the encroachment case. The plaintiff is a rank trespasser for which the Government started encroachment case against him. Both the courts have negatived the plea of adverse possession. There is no perversity in the judgments of the courts below. Accordingly, the substantial question of law enumerated in grounds nos.10(A), (B) and (F) are answered. 13. In the result, the appeal, being devoid of merit, is dismissed. There shall be no order as to costs.