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2017 DIGILAW 233 (ORI)

Anu Charan Sethi v. State of Orissa

2017-03-03

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. The plaintiff is the appellant against an affirming judgment. 2. The case of the plaintiff is that kissam of the suit property was goachar. It was recorded as Anabadi in 1930 settlement. The Government had allotted Ac.1.00 each to Bansidhar Mallick and Rama Mallick, who were Chowkidar of the village. After 1930 settlement, the father of the plaintiff and proforma defendant no.3 constructed a Matha over the said land. They were in possession of the same. They had excavated a tank, planted trees and raised crops. After death of his father, he is in possession of the suit schedule land peacefully and continuously with the hostile animus to defendant nos.1 and 2 and perfected title by way of adverse possession. While the matter stood thus, an encroachment case was initiated in the year 1969-70 against proforma defendant no.3. He was not a party to the same and as such not bound by any order. With this factual scenario, the suit has been filed for declaration of title. 3. Though summons was issued to the defendants, but they had chosen not to contest the suit and as such set ex parte. 4. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, three documents had been exhibited. The learned trial court came to hold that the plaintiff is an encroacher. No documents had been filed to the effect that father of the plaintiff was in possession of the goachar land. Held so, the learned trial court dismissed the suit. Thereafter the plaintiff unsuccessfully challenged the same before the learned Civil Judge (Sr.Division), Kendrapara, which was eventually dismissed. 5. The appeal was admitted on 8.1.1996 on the following substantial questions of law: “1. Whether the Courts below committed an error in not considering the evidence of the plaintiff with regard to adverse possession; and 2. Whether it was justified on the part of the lower appellate court to bring out a case of occupancy right when the admitted case of the plaintiff was that the land was a Goachar land that belonging to the Government.” 6. In Karnataka Board of Wakf vs. Govt. Whether it was justified on the part of the lower appellate court to bring out a case of occupancy right when the admitted case of the plaintiff was that the land was a Goachar land that belonging to the Government.” 6. 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) 7. On the anvil of the decisions cited supra, the instant case may be examined. The pleading lacks particulars of adverse possession. The date of entry into the suit land has not been mentioned. On an anatomy of the pleadings and evidence on record, both oral and documentary, both the courts below negtived the plea of adverse possession. On the anvil of the decisions cited supra, the instant case may be examined. The pleading lacks particulars of adverse possession. The date of entry into the suit land has not been mentioned. On an anatomy of the pleadings and evidence on record, both oral and documentary, both the courts below negtived the plea of adverse possession. Adverse possession is a mixed question of fact and law. An attempt has been made by the plaintiff to garb the goachar land of the village. The substantial questions of law enumerated in grounds no.1 and 2 are accordingly answered. 8. On an ultimate analysis, the appeal fails and is dismissed. No costs.