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2017 DIGILAW 1317 (ORI)

Lalit Prasad Tiwari v. State of Orissa

2017-11-16

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff against an affirming judgment. The suit was for declaration of right, title and interest and permanent injunction. 2. The case of the plaintiff is that he is in possession of the suit schedule land for the last 45 years to the knowledge of the defendants. He constructed a hotel and residential building over a portion of the land. He is residing with his family members in the house. Defendant no.2 initiated Encroachment Case No.56/72 against him. In the said proceeding, notice had been served on him. Thereafter, another Encroachment Case No.38/84 was initiated. The case was dropped. In Encroachment Case No. 56/72, defendant no.2 passed an order of eviction on 28.11.1986. Initiation of the said encroachment case is illegal. The defendant no.2 has no jurisdiction to pass the order of eviction. The plaintiff apprehended that the defendant might demolish the structures standing on the disputed lands taking advantage of the illegal order passed in the encroachment proceeding. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. Defendants filed a joint written statement denying assertions made in the plaint. It was pleaded that the disputed Sabik plot no.519 situates in the Tuesday Weekly market of Belgaon prior to 1936. Entire Sabik plot no.519 measuring Ac.0.92 dec. appertaining to Sabik khata no.7 being the market area, was transferred to Siskela Grama Panchayat in the year 1954 for its management. The Gram Panchayat has been managing the market. The Gram Panchayat granted temporary lease of portions thereof for temporary stalls. After reorganisation of Grama Panchayat, jurisdiction village-Belgaon again remained under Siskela Grama Panchayat. The weekly market area had been transferred in favour of Siskela Grama Panchayat for management by the Sub-Collector, Titilagarh. Siskela Grama Panchayat granted temporary lease of the disputed land of Ac.0.04 dec. of plot no.519 to the plaintiff on 29.03.1974 on monthly ground rent of Rs.5/-. The plaintiff agreed to be evicted therefrom by the Grama Panchayat in case of his failure to pay the ground rent on the 30th day of each month. In the years, 1974, 1975, 1980, 1981, 1983 and 1984, the plaintiff had paid ground rent for the said land to the Grama Panchayat. He had not claimed ownership in respect of the disputed lands appertaining to Sabik Plot No. 519. Sabik plot no.338 appertains to sarbasadharan Sabik Khata no. In the years, 1974, 1975, 1980, 1981, 1983 and 1984, the plaintiff had paid ground rent for the said land to the Grama Panchayat. He had not claimed ownership in respect of the disputed lands appertaining to Sabik Plot No. 519. Sabik plot no.338 appertains to sarbasadharan Sabik Khata no. 7. The plaintiff was not in possession of the disputed lands for 30 years. He admitted in Encroachment Case No. 56/72 that he is in possession of the case lands since 1964-65. He had never acquired title by way of adverse possession. In Encroachment Case No. 56/72, notice was duly served on him on 16.05.1972. Eviction notice in Form No.’Kha’ had also been served on him on 04.03.1978. The encroachment proceeding is legal and valid. No appeal or revision had been filed against the order of eviction dated 04.03.1978 passed in the Encroachment Case No. 56/72. The order of eviction passed in the encroachment case was not liable to be challenged in the civil court. The suit was not maintainable. Plaintiff was not landless person. 4. Stemming on the pleadings of the parties, learned trial court struck twelve issues. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the suit was not maintainable under Sec.16 of the Orissa Prevention of Land Encroachment Act (in short, “the O.P.L.E. Act”). The plaintiff had not acquired title by way of adverse possession. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Titilagarh in T.A. No. 34/10 of 1992, which was eventually dismissed. 5. Heard Mr. Alekh Chandra Mohanty, learned counsel for the appellant and Mr. Swayambhu Mishra, learned A.S.C. for the respondents. 6. Mr. Mohanty, learned counsel for the appellant submits that the plaintiff is in possession of the land peacefully, continuously and with hostile animus to the defendants for more than thirty years and as such perfected title by way of adverse possession. In the meantime, encroachment case was initiated. He filed an objection before the Tahasildar, Titilagarh. The courts below fell into patent error of law in holding that the suit is not maintainable in view of the bar contained in Sec.16 of the O.P.L.E. Act. The plaintiff is a landless person. He has constructed a small house over a portion of the suit schedule land. He filed an objection before the Tahasildar, Titilagarh. The courts below fell into patent error of law in holding that the suit is not maintainable in view of the bar contained in Sec.16 of the O.P.L.E. Act. The plaintiff is a landless person. He has constructed a small house over a portion of the suit schedule land. The Tahasildar has jurisdiction under Sec.7 of the O.P.L.E. Act to settle the land in his favour. 7. Per contra, Mr. Mishra, learned A.S.C. submits that adverse possession is a mixed question of fact and law. Both the courts below concurrently held that the plaintiff has not perfected title by way of adverse possession. 8. In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460, a question arose that whether the decision of the Revenue Officer in the proceeding under the O.P.L.E. 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 O.P.L.E. 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. Thus, notwithstanding the bar contained in Sec. 16 of the O.P.L.E. Act, the civil court has jurisdiction to adjudicate the complicated question of title. 9. The next question crops up as to whether the plaintiff has perfected title by way of adverse possession. 10. Admittedly, kissam of the land is gochar. Successive encroachment cases have been initiated against the plaintiff. Second proviso to Sec. 7 of the O.P.L.E. Act stipulates that no settlement shall be made if the land is recorded as Gochar. Though the plaintiff has taken plea before the Tahasildar that he has perfected title by way of adverse possession, but then he has filed an application for settlement of land. There is no element of hostile animus. The plea taken by the plaintiff is mutually destructive. 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. The plea taken by the plaintiff is mutually destructive. 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 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. On a bare perusal of the pleading, it is evident that the date of entry into the suit land by the plaintiff has not been mentioned. As held above, the plaintiff filed an application before the Tahasildar in the encroachment case to settle the land. There is no element of hostile animus. On an anatomy of pleadings and evidence, both oral and documentary, the courts below negatived the plea of adverse possession. There is no perversity or illegality on the findings of the courts below. 13. As held above, the plaintiff filed an application before the Tahasildar in the encroachment case to settle the land. There is no element of hostile animus. On an anatomy of pleadings and evidence, both oral and documentary, the courts below negatived the plea of adverse possession. There is no perversity or illegality on the findings of the courts below. 13. In the wake of aforesaid, the appeal is dismissed, since the same does not involve any substantial question of law. No costs.