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2017 DIGILAW 222 (ORI)

Saroj Kumar Sharma v. State of Orissa

2017-03-02

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of right, title and interest over the suit land. 2. The case of the plaintiff is that his grandfather, Raghunath Sharma, had excavated tank and constructed a ‘Kata’ over plot nos.683 & 639 respectively appertaining to Khata No.37 of Mouza-Odsingh in the year 1910. R.O.R. was published in the year, 1910 with note of such construction in the remarks column. The defendants at no point of time had declared present pond and water reservoir as the Government properties nor the same had ever been handed over to the local Gram Panchayat and as such, his grand-father had got absolute right, title and interest over the suit lands. During major settlement operation, both the suit plots had been recorded as Jagannath Bandha and Jagannath Kata. Defendant no.2 expressed inability to correct the same for want of his jurisdiction. His grand-father and father both are dead. He issued notice to the defendants under Section 80 CPC. 3. Pursuant to issuance of summons, the defendant no.2 entered appearance and filed a written statement denying the assertions made in the plaint. It is stated that Rathunath Sharma, grandfather of the plaintiff, had neither excavated tank over the suit land nor he was in possession over the same at any point of time. It is further stated that the plaintiff was never in possession of the suit land. The water reservoir on the suit plots belongs to the State Government and the same has been transferred to the Grama Panchayat. The villagers are using the tank. It is further stated that the suit land is kept under Rakshit kissam in Government Khata. The plaintiff has no right, title over the same. 4. On the, inter se, pleadings of the parties, the learned trial court struck six issues out of which, issue no.5 is pivotal. The same is quoted below:- “5. Whether the plaintiff has right, title and interest on the suit land as he prayed for ? 5. To substantiate the case, the plaintiff had examined two witnesses and on his behalf six documents had been exhibited. Neither any witness had been examined by the defendants nor any document had been exhibited. The same is quoted below:- “5. Whether the plaintiff has right, title and interest on the suit land as he prayed for ? 5. To substantiate the case, the plaintiff had examined two witnesses and on his behalf six documents had been exhibited. Neither any witness had been examined by the defendants nor any document had been exhibited. Learned trial court came to hold that the plaintiff has failed to establish title over the suit land by adverse possession and answered issue no.5 in negative. Held so, learned trial court dismissed the suit. The plaintiff has unsuccessfully challenged the judgment and decree before the learned Additional District Judge, Kuchinda in R.F.A. No. 11 of 2009, which was eventually dismissed. 6. Heard Mr. S. Mantry, learned counsel for the appellant and Mr. P.C. Panda, learned Additional Government Advocate. 7. Mr. Mantry, learned counsel for the appellant, argues with vehemence that the forefathers of the plaintiff were in peaceful and continuous possession of the tank and thereafter the plaintiff is in possession of the suit tank and as such, the plaintiff has perfected title over the suit land by way of adverse possession. 8. Per contra, Mr. Panda, learned Additional Government Advocate, supports the impugned judgment and decree passed by the courts below. 9. The dispute pertains to a big tank having an area of Ac.10.97 dec. After abolition of Gountia system, the estate was vested in the State. The suit land has not been settled in favour of the plaintiff or his ancestor. In the major settlement record-of-right, the land has been recorded under Rakhit Khata. The learned appellate court came to hold that in the attending circumstances, the Government of Orissa is the recorded owner of the land. There is no iota of evidence on record that Raghunath Sharma was in possession of the land exclusively with hostile animus to the true owner. It further held that the plaintiff in his evidence stated that all the villagers are using the tank regularly. Adverse possession is a mixed question of fact and law. 10. On an anatomy of pleadings and evidence, both oral and documentary, the learned trial court negative the plea of adverse possession over the suit property. The findings of fact arrived at by the learned trial court has been affirmed by the learned appellate court. There is no perversity or illegality in the same. 11. 10. On an anatomy of pleadings and evidence, both oral and documentary, the learned trial court negative the plea of adverse possession over the suit property. The findings of fact arrived at by the learned trial court has been affirmed by the learned appellate court. There is no perversity or illegality in the same. 11. In the result, the second appeal is dismissed, since the same does not involve any substantial question of law.