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2017 DIGILAW 1418 (ORI)

Dukhabandhu Mohanta v. State of Orissa

2017-12-08

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. Plaintiffs are the appellants against a confirming judgment. The suit was for declaration of title, confirmation of possession and permanent injunction. 2. The suit property is a tank having an area of Ac.3.38 dec. appertaining to Hal Khata No.42, Hal Plot Nos.173, 179 and 529 of Mouza-Tangarnali in the district of Keonjhar. 3. Case of the plaintiffs was that Kabiraj Mahanta, common ancestor of the parties, was the owner of the tank. He excavated the tank for the purpose of irrigation. He planted trees on the ridge of the tank. After his death, the plaintiffs were in possession of the tank for more than seventy years peacefully, continuously and with hostile animus to the defendants and as such, perfected title by way of adverse possession. While matter stood thus, the tank was transferred in favour of Bhuinpur Grama Panchayat. No notification was issued before transfer. No deed of transfer of tank had been executed in favour of the Grama Panchayat. The Grama Panchayat intended to lease out the land. With this factual scenario, the suit has been filed seeking relief’s mentioned supra. 4. Defendants 1 and 2 filed a written statement denying the assertions made in the plaint. The specific case of the defendants was that the State was the paramount owner of the tank. The tank had been transferred to the Bhuinpur Grama Panchayat for management. 5. Sarpanch, Bhuinpur Grama Panchayat-defendant no.3 filed a written statement. It was pleaded that the tank originally belonged to Ex-State of Keonjhar. After merger of the Keonjhar State in the State of Orissa, the State of Orissa became the paramount owner of the tank. The suit tank and other tanks were transferred to the Grama Panchayat for better management. The Grama Panchayat had taken over possession of the same on 28.4.1964. The suit tank was put to auction for pisciculture on 24.03.1983 for a period of three years. In the auction, one Charan Mahanta and Janmejoy Mahanta-plaintiff no.5 had participated. The bid was knocked down in favour of Charan Mahanta. The plaintiff no.5 received back a sum of Rs.30/-deposited towards earnest money. Previously Harish Chandra Mahanta-plaintiff no.1 had taken lease of the tank. It is apt to state here that during pendency of the appeal, the appellant nos.2, 5,6 7, 13, 14, 18 died, whereafter their legal representatives have been substituted. 6. The plaintiff no.5 received back a sum of Rs.30/-deposited towards earnest money. Previously Harish Chandra Mahanta-plaintiff no.1 had taken lease of the tank. It is apt to state here that during pendency of the appeal, the appellant nos.2, 5,6 7, 13, 14, 18 died, whereafter their legal representatives have been substituted. 6. Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the plaintiff no.5 had participated in the auction held on 24.03.1983. Thus the plaintiffs have no hostile animus against the true owner. The plaintiffs are in permissive possession of the tank. They have not perfected title by way of adverse possession. Held so, it dismissed the suit. Unsuccessful plaintiffs assailed the judgment and decree before the learned District Judge, Keonjhar in Title Appeal No.1 of 1994-I, which was eventually dismissed. 7. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos. A, C, E and F of the appeal memo. The same are - “A. Whether transfer of the suit tank by Defendant no.2 under Ext.F dated 10.3.64 is wholly void being contrary to Section 71(3) of the Orissa Grama Panchayat Act and consequently any action on the said void document is liable to be ignored? C. Whether concurrent finding that plaintiffs’ ancestor’s possession over the suit tank was originated on permissive possession is a third case based on non-consideration of the pleading? E. Whether the consideration of plaintiffs’ rayati land in para-2 of appellate judgment as suit land vitiates the ultimate findings in the appellate judgment? F. Whether the admitted possession of the plaintiffs at least from 1930 till the so called transfer under Ext.F in 1964 matures plaintiffs’ title on adverse possession against defendant No.1? 8. Heard Mr. Satyabadi Mantry, learned advocate for the appellants and Mr. Swayambhu Mishra, learned Addl. Standing Counsel for respondent nos.1 and 2. None appears for respondent no.3. 9. Mr. Mantry, learned advocate for the appellants argues with vehemence that Kabiraj Mahanta was the owner of the suit land. He had excavated the tank over the suit land. He had also planted trees on the ridge of the tank. Swayambhu Mishra, learned Addl. Standing Counsel for respondent nos.1 and 2. None appears for respondent no.3. 9. Mr. Mantry, learned advocate for the appellants argues with vehemence that Kabiraj Mahanta was the owner of the suit land. He had excavated the tank over the suit land. He had also planted trees on the ridge of the tank. After him, the plaintiffs are in possession of the tank peacefully, continuously and with hostile animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession. Findings of the courts below that the plaintiffs are in permissive possession are perverse. He further submits that the Sub-Divisional Officer has no authority to transfer the tank in favour of Bhuinpur Grama Panchayat under Sec. 71(3) of the Orissa Grama Panchayats Act. By the time the tank transferred to the Grama Panchayat, the plaintiffs have perfected title by way of adverse possession. 10. Per contra, Mr. Mishra, learned ASC submits that the State is the paramount owner of the tank. The same was transferred to the Bhuinpur Grama Panchayat. The tank was put to auction every year by the Grama Panchayat. Plaintiff no.5 had participated in the auction. Both the courts below rightly held that the plaintiffs have not perfected title by way of adverse possession. 11. Adverse possession is not a pure question of law, but a blended one of fact and law. 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 plaintiffs have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 12. The suit tank was transferred to the Grama Panchayat. The submission of Mr. Mantry learned counsel for the appellants that the tank was transferred in contravention of Sec. 71(3) of the Orissa Grama Panchayats Act is noted to be rejected. The plaintiffs have not assailed the transfer of the tank in favour of the Grama Panchayat. There was no prayer in the plaint to declare the transfer of tank as illegal. The suit land originally belonged to the State of Orissa. The same was transferred in favour of the Grama Panchayat. The tank was put to auction for pisciculture on 24.03.1983. Plaintiff no.5 had participated in the auction. There was no prayer in the plaint to declare the transfer of tank as illegal. The suit land originally belonged to the State of Orissa. The same was transferred in favour of the Grama Panchayat. The tank was put to auction for pisciculture on 24.03.1983. Plaintiff no.5 had participated in the auction. Both the courts below rightly held that the plaintiffs have no hostile animus against the true owner. Though the plaintiffs had taken a plea that the tank was granted to their common ancestor by the Ex-ruler of the Keonjhar, but no such document was exhibited in the courts below. 13. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.