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2017 DIGILAW 166 (ORI)

Satadal Mandal v. Collector, Bhadrak

2017-02-15

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. The plaintiff is the appellant against a confirming judgment in a suit for declaration of title, confirmation of possession and permanent injunction. 2. The dispute pertains to area admeasuring Ac.10.10 decimals appertaining to M.S. Khata No.809, Plot Nos.2645, 2646 and 2647 of mouza-Radhanathpur, P.S.-Basudevpur in the district of Bhadrak. The case of the plaintiff is that the suit land is a part and parcel of the unserved area of the sea-shore. Kisam of the suit land was Anabadi. His great grandfather, Kartika Chandra Mandal, had reclaimed the land with the consent of Radhakanta Pardhi, ex-landlord, on 2.3.1945. The ex-landlord and one Muktikanta Pardhi had executed an Amalanama Patra in favour of his great grandfather. The ex-landlord had not made any application to the Collector for ejectment of his great grandfather within four years from the date of reclamation, which implies that the ex-landlord had given his consent for reclamation of the suit land. His great grandfather had acquired occupancy right over the same. Prior to execution of Amalanama Patra, his great grandfather was in possession of the suit land as a tenant for more than ten years. An agricultural lease was granted to him since 13.5.1937 by a Kabuliat. The ex-landlord had granted hat patta to his great grandfather on 26.12.1949. The name of his great grandfather had been recorded in the zamabandi register. The further case of the plaintiff is that Kartika Chandra Mandal died leaving behind his three sons, namely, Gora Chand, Rai Chand and Shyam Chand. They are all dead. Barendra is the son of Rai Chand, who died in June, 2001. The plaintiff being the successor of Barendra is in possession of the suit land. There was an oral partition between the sons of Kartika Chandra Mandal. Gora Chand and Shyam Chand alienated their 1/3rd interest each to Barendra and as such he became the absolute owner of the suit land. The State of Orissa had also received rent from the plaintiff. The major settlement record of right was not prepared correctly. The suit land was recorded as Abadajogya Anabadi in the name of the Government of Orissa. Basing on the recording in the M.S.R.O.R., the defendants had threatened to dispossess him from the suit land. With this factual scenario, the suit was filed seeking the reliefs as mentioned supra. 3. The major settlement record of right was not prepared correctly. The suit land was recorded as Abadajogya Anabadi in the name of the Government of Orissa. Basing on the recording in the M.S.R.O.R., the defendants had threatened to dispossess him from the suit land. With this factual scenario, the suit was filed seeking the reliefs as mentioned supra. 3. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit, the defendants took the plea that the description of the suit land is vague and indefinite. The documents said to have been granted by the ex-landlord are false and fabricated. The suit land has been rightly recorded in the name of Government both in the C.S. and M.S.R.O.R. The ex-landlord had no right to lease out the same in favour of any person. The specific case of the defendants is that the suit land is the sea-shore land and as such it has got public utility and prohibitory in nature. The plaintiff has not acquired any tenancy or occupancy right over the land in question. 4. On the interse pleadings of the parties, learned trial court struck seven issues. They are: “(1) Is the suit maintainable ? (2) Is there any cause of action to file the suit ? (3) Is the suit barred by law of limitation ? (4) Is the suit land prohibitory land as per law ? (5) Has the plaintiff acquired tenancy and occupancy right over the suit land ? (6) Has the plaintiff perfected his right, title and interest over the suit land by way of adverse possession ? (7) Whether the entries made in M.S.R.O.R. of the suit land vide Khata no.809 are wrong and need be corrected ?” 5. To substantiate the case, the plaintiff had examined three witnesses and on his behalf six documents had been exhibited. Neither any witness was examined by the defendants nor any document had been exhibited. 6. Learned trial court came to hold that M.S.R.O.R. stands in the name of the State Government. The plaintiff has not filed C.S. R.O.R. to show that the same was published in the name of the ex-landlord. No document has been filed to prove that ex-landlord was the recorded owner of the suit land during sabik settlement. 6. Learned trial court came to hold that M.S.R.O.R. stands in the name of the State Government. The plaintiff has not filed C.S. R.O.R. to show that the same was published in the name of the ex-landlord. No document has been filed to prove that ex-landlord was the recorded owner of the suit land during sabik settlement. Conversely the M.S.R.O.R., Ext.1, stands recorded in the name of the Government of Orissa. The suit land has been described as Abadajogya Anabadi. The entry in the R.O.R. has got presumptive value. The same are true until the contrary is proved. The ex-landlord had no semblance of right, title and interest or possession of the suit land. Any alienation made by the ex-landlord cannot confer any title on Kartika Chandra Mandal. The plaintiff, who happens to be the great grand son of Kartika Chandra Mandal, is not entitled to any relief. The plaintiff admits that the suit land is situated by the side of the sea-shore. It has got public utility. The plaintiff has failed to prove the accrual of tenancy or occupancy right over the same and accordingly answered issue nos.4 and 5. The plea of adverse possession was negatived and accordingly issue no.6 answered in negative. The suit was dismissed. The plaintiff unsuccessfully challenged the judgment and decree of the learned trial court in R.F.A. No.55 of 2008 before the learned Additional District Judge, Bhadrak, which was eventually dismissed. 7. Heard Mr. S.K. Mishra, learned counsel along with Miss Pragyna Mohanty, learned counsel for the appellant and Mr. P.C. Panda, learned Additional Government Advocate for the respondents. 8. Learned counsel for the appellant submitted that the suit land was originally belonged to Radhakanta Pardhi, ex-landlord. On 13.5.1937, he granted Kabuliat in favour of the great grandfather of the plaintiff. The ex-landlord has also granted Amalanama Patra on 2.3.1945. The great grandfather of the plaintiff reclaimed the suit land and remained in possession of the same for more than the statutory period. In oral partition between the parties, the other co-sharers have alienated the land in favour of the plaintiff and as such the plaintiff is the absolute owner and in possession of the suit land. Since the plaintiff is in possession of the suit land for more than statutory period, he has acquired title by way of adverse possession. In oral partition between the parties, the other co-sharers have alienated the land in favour of the plaintiff and as such the plaintiff is the absolute owner and in possession of the suit land. Since the plaintiff is in possession of the suit land for more than statutory period, he has acquired title by way of adverse possession. Learned courts below have committed manifest illegality in negativing the claim of adverse possession. 9. Per contra, Mr. Panda, learned Additional Government Advocate for the respondents supported the judgments of the courts below. He submitted that both the courts have negatived the plea of adverse possession. No substantial question of law is involved in the appeal. 10. Admittedly the suit land is a vast patch of sea-shore land. No document was filed by the plaintiff to show that the suit land was recorded in the name of ex-landlord in the sabik settlement R.O.R. The Hal settlement R.O.R. was published in the name of the State of Orissa. The kisam of the land is Abadajogya Anabadi. Both the courts on a threadbare analysis of the evidence on record as well as pleadings negatived the plea of adverse possession. Adverse possession is a mixed question of fact and law. There is no perversity or illegality in the findings of the courts below. 11. The appeal thus fails and is dismissed, since the same does not involve any substantial question of law.