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2017 DIGILAW 1364 (ORI)

Ganapati Tarai v. State of Orissa

2017-11-27

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff. The suit was for declaration of right, title and interest and the order passed by the Settlement authority is void. 2. The case of the plaintiff is that the suit schedule land originally belongs to the ex-intermediary. The ex-intermediary granted rayati banjar patta to one Punia Tarei. He was in possession of the suit property. While matter stood thus, the Tahasildar, Khallikote initiated Encroachment Cases bearing Nos. 466/68 and 3356/69 in respect of Ac.6.00 cents of land against him. In Lease Case No. 1176/80, the Tahasildar settled Ac.3.00 dec. of land in his favour and issued patta. The Tahasildar had not settled the entire area donated by the ex-intermediary. He is a landless person. He has perfected title by way of adverse possession. The Tahasildar ought to have settled the land in his favour. In the settlement operation, the land had been recorded in the Government Khata and classified as a Gramya Jungle. In the remarks column, his name found place. He filed an application for mutation of the land, but the same was rejected. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. The defendants entered contest and filed written statement denying the assertions made in the plaint. It was pleaded that the suit land had been recorded as “Abada Jogya Anabadi” in Government Khata in the sabik settlement. The estate vested in settlement on 01.06.1953. The ex-intermediary had no right to transfer the land. Any settlement made by the Tahasildar in favour of the plaintiff is void. In the settlement R.O.R., the land had been recorded as Gramya Jungle. The Tahasildar had no jurisdiction to settle Ac.3.00 dec. of land. The plaintiff had no right, title and interest or possession of the suit land. 4. On the, inter se, pleadings of the parties, the learned trial court struck eight issues. To substantiate the case, plaintiff had examined two witnesses and on his behalf, thirteen documents had been exhibited. The defendants had not adduced any evidence. The learned trial court came to hold that banjar patta, Ext.1 was a fabricated one. There are over writings and manipulations. The lease granted by Tahasildar in Lease Case No. 1176/80 in respect of Ac.3.00 dec. was not in accordance with law. The plaintiff had not acquired title by way of adverse possession. The defendants had not adduced any evidence. The learned trial court came to hold that banjar patta, Ext.1 was a fabricated one. There are over writings and manipulations. The lease granted by Tahasildar in Lease Case No. 1176/80 in respect of Ac.3.00 dec. was not in accordance with law. The plaintiff had not acquired title by way of adverse possession. Held so, it dismissed the appeal. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Civil Judge (Senior Division), Khallikote in R.F.A. No. 05 of 2009, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial question of law:- “Whether on the basis of the settlement of the suit land in favour of the plaintiff by the competent authority under OPLE Act the courts below ought to have declared the right, title and interest of the plaintiff over the suit land in spite of the publication of record of rights thereafter which has been made ignoring the settlement as aforesaid ?” 6. Heard Mr. Raghunandan Das Mohapatra, learned counsel for the appellants and Mr. Swayambhu Mishra, learned A.S.C. for the respondents. 7. Mr. Das Mohapatra, learned counsel for the appellants submitted that the ex-intermediary granted banjar patta in favour of the plaintiff in respect of Ac.6.00 dec. of land. The plaintiff was in possession of the same. In Lease Case No. 1176/80, the Tahasildar settled Ac.3.00 dec. of land in favour of the plaintiff under the lease principles of the Government of Orissa. The plaintiff had paid rent to the Government. The land was wrongly recorded in the name of Government. The plaintiff made an application before the Tahasildar for settlement of the land in his favour, vide Ext.8, but the same had not been done. He further contended that the plaintiff was in possession of the suit 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. Since the Tahasildar had settled Ac.3.00 dec. of land in favour of the plaintiff, the courts below ought to have declared right, title and interest over the suit land. 8. Per contra, Mr. Mishra, learned A.S.C. submitted that both the courts below held that banjar patta granted by the ex-intermediary is fabricated. The plaintiff failed to prove the plea of adverse possession. of land in favour of the plaintiff, the courts below ought to have declared right, title and interest over the suit land. 8. Per contra, Mr. Mishra, learned A.S.C. submitted that both the courts below held that banjar patta granted by the ex-intermediary is fabricated. The plaintiff failed to prove the plea of adverse possession. The Tahasildar has no jurisdiction to lease the land. 9. On a cursory perusal of the banjar patta, Ext.1, it is evident that the same was granted in favour of one Gopi Tarai, son of Tunia Tarai on 18.10.1928. But then, the manager of the estate affixed the seal on 16.11.1928, i.e., two days prior to execution of patta. The name of the leasee, his father’s name, area as well as name of the village have been erased. Thereafter the name of Gopi Tarai, his father’s name, area and mouza have been written. There are several over writings and interpolation. It is pleaded that the banjar patta was granted to one Punia Tarei, plaintiff, but then the same was granted to Gopi Tarei, son of Tunia Tarei. There is variance between the pleadings and proof. 10. In Ram Nath Mandal and others vrs. Jojan Mandal and others, AIR 1964 Pat-1, the Full Bench of Patna held that under Section 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. In that case, the claim of creating of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint. 11. Ext.1 is an unregistered patta. The same was not registered. In para one and two of the plaint, it is stated that the ex-intermediary has granted patta. 11. Ext.1 is an unregistered patta. The same was not registered. In para one and two of the plaint, it is stated that the ex-intermediary has granted patta. The ex-intermediary has donated the land. The plaintiff has taken prevaricating stand. The kissam of land is, Gramya Jungle and Gochar. The estate vested in the settlement free from all encumbrances. Encroachment cases had been initiated against the plaintiff. 12. Sub-Sec. 1 of Sec.7 of the Orissa Prevention of Land Encroachment Act (in short, “the O.P.L.E. Act”) provides that any person unauthorisedly occupying land for which he is liable to pay assessment under Sec.4 shall be summarily evicted by the Tahasildar and any crop or other product raised on the land, any encroachments such as a building, other construction or anything deposited thereon shall be liable to forfeiture. Sub-Sec. 2 contains a non-obstante clause. It provides that notwithstanding anything contained in Sub-Sec.(1) where any land is in the unauthorised occupation of a landless person. Clause 1 of Sub-Sec.2 of Sec.7 of the O.P.L.E. Act provides that the Tahasildar may instead of evicting such person from the land in his authorised occupation, settle the same with provided condition enumerated therein as satisfied. Sub-Sec. (1) of Sec.8-A of the O.P.L.E. Act provides that where in the course of any proceeding instituted under Secs. 4,6,7 or 8 against any person unauthorisedly occupying date of institution of the proceeding, the Tahasildar shall refer the cases to the Sub-divisional Officer. Sub-Sec. (2) of Sec.8-A provides that on receipt of a reference under Sib-sec.(1) the Sub-divisional Officer shall give the Department of the State Government (other than the Revenue Department) to which the land belongs, an opportunity to show cause against the settlement of the land and may make such further enquiry as he deems necessary. Sub-Sec.(3) of Sec.8-A provides that if after making such enquiry the Sub-divisional Officer is satisfied that such person has been in such occupation of the land as aforesaid, he may by order, settle the land with him and every such settlement shall be subject to such conditions, regarding assessment and payment of rent (including arrears of rent) as may be prescribed by rules made under this Act. 13. The plaintiff claims that he was in possession of the land for thirty years. In such a contingency, it was incumbent on the part of the Tahasildar to refer the matter to the Sub-Collector. 13. The plaintiff claims that he was in possession of the land for thirty years. In such a contingency, it was incumbent on the part of the Tahasildar to refer the matter to the Sub-Collector. The Tahasildar under the O.P.L.E. Act is a creature of statute. He cannot pass any order contrary to the provisions of O.P.L.E. Act. Any order passed by him in contravention of the provisions of O.P.L.E. Act is null and void. Thus reliance placed on the lease granted by the Tahasildar is totally misplaced. 14. Adverse possession is a not a pure question of law but a blended one of fact and law. In T.Anjanappa and others vs. Somalingappa and another, (2006) 7 SCC 570 , the apex Court held:- “12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that 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 denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. 13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them: “24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.” 15. The appellate court held that the plaintiff had applied for lease in respect of the suit plots on 13.08.1993 vide Ext.9. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.” 15. The appellate court held that the plaintiff had applied for lease in respect of the suit plots on 13.08.1993 vide Ext.9. The same indicates that he has accepted the superior title of the State Government over the suit properties. He had not set up any hostile possession to the knowledge of the State authorities. The date of entry into the suit land by the plaintiff has not been mentioned. On an anatomy of pleadings and evidence on record, it negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial question of law is answered accordingly. 16. A priori, the appeal fails and is dismissed. There shall be no order as to costs.