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2017 DIGILAW 235 (ORI)

Manjulata Bedanta 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 the suit land though recorded in the name of Bharata Samrat, it was in khas possession of the Ex-intermediaries, namely, Ananda Mohan Das, Pyari Mohan Das, Lal Mohan Das and Khetra Mohan Das. In 1944 the aforementioned persons orally leased out the suit land to Bholanath Ray, the adopted father of the plaintiff. He reclaimed the suit land and was in possession of the same. Thereafter he constructed a house over it. Bholanath Ray was a bachelor. On 17.10.1974 he adopted the plaintiff as his daughter. The factum of adoption was confirmed by decree of the Civil Court in Title Suit No.1004 of 19931. After coming into force of the Estate Abolition Act in 1951, the suit land vested in the State of Orissa. The father of the plaintiff was in possession over the suit land on the date of vesting. He remained in possession of the land even after vesting. On 15.1.1963, the R.I asked her father to vacate the suit land, but he refused. Her father died in the year 1993. By that time she married. She was residing in the house built by her father over the suit land. She used to pay electricity charges. She was also paying holding tax to the Municipality, Balasore. While the matter stood thus, she visited the office of the R.I to pay rent of the suit land, but the R.I. refused to receive the same on the ground that the suit land had been recorded in the name of State. She obtained the certified copy of the R.O.R of the suit land and came to know that the suit land had been recorded in the name of the State with a note of forcible possession of her father Bholanath Ray in the remarks column. Notice under Section 80 of C.P.C was sent to respondent no.1 for correction of the record of right of the suit land. Instead of correcting the R.O.R., the Tahasildar, Balasore initiated an encroachment case against her vide L.E. Case No.1887 of 1993. With this factual scenario, the suit has been filed for declaration of right, title, interest, confirmation of possession and for a further declaration that the order passed in the encroachment case by the Tahasildar, Balasore is void and inoperative. 3. Instead of correcting the R.O.R., the Tahasildar, Balasore initiated an encroachment case against her vide L.E. Case No.1887 of 1993. With this factual scenario, the suit has been filed for declaration of right, title, interest, confirmation of possession and for a further declaration that the order passed in the encroachment case by the Tahasildar, Balasore is void and inoperative. 3. Pursuant to issuance of notice, defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendant no.1 is that the Ex– Landlord had not settled the suit land in favour of Bholanath Ray. No Raffa was submitted by the Ex-landlord in favour of Bholanath Ray. No T.L. was opened in the name of Bholanath Ray. The suit land was not in the possession of Bholanath Ray or by the plaintiff. In the M.S. operation, the suit land has been included in the “Sarbasadharana”’ khata no. 334 of the State with illegal note of possession of Bholanath Ray. The M.S. R.O.R of the suit land was finally published on 30.08.1986. Neither Bholanath Ray nor the plaintiff challenged the M.S. R.O.R within three years of its final publication. The suit was barred under Section 42 of the Orissa Survey and Settlement Act. As the plaintiff was in illegal possession the suit land, L.E. Case No. 1587 of 1993 was initiated against her. She was evicted from the suit land under due process of law. On the date of institution of the suit, the plaintiff was not in possession over the suit land. The defendant no.1 denied the right, title and interest of the plaintiff and further pleaded that the suit was barred under Section 16 of the O.P.L.E. Act. 4. The defendant no.2 has also filed a written statement denying the assertions made in the plaint. The case of the defendant no.2 is that that the plaintiff was a maidservant of Bholanath Ray. She was not adopted by Bholanath Ray. The suit land was not leased out to Bholanath Ray. The suit land was in fact “Ratha Danda” of King of Mayurbhanja. The villagers of Padhuanpada used the suit land as road and village chhak. On ‘Dola’ the villagers used to worship deity Radhakrishana Jew on the suit land. Bholanath Ray was a Brahmin. After his retirement, the villagers appointed him as the pujari of deity Radhakrishna Jew. The suit land was in fact “Ratha Danda” of King of Mayurbhanja. The villagers of Padhuanpada used the suit land as road and village chhak. On ‘Dola’ the villagers used to worship deity Radhakrishana Jew on the suit land. Bholanath Ray was a Brahmin. After his retirement, the villagers appointed him as the pujari of deity Radhakrishna Jew. Since the plaintiff was the maid servant of Bholanath Ray and not financially sound, Bholanath Ray got her married. She is a shrewd lady and managed to record the name of Bholanath Ray in the remarks column of M.S.R.O.R with a view to grab the suit property. 5. On the rival pleadings of the parties, the learned trial court struck ten issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf ten documents had been exhibited. The defendants had examined two witnesses and eight documents had been exhibited. 6. On a thread bare analysis of the evidence on record, both oral and documentary, and pleading, the learned trial court came to hold that the plaintiff had failed to establish right, title, interest and possession over the suit land and dismissed the suit. The plaintiff unsuccessfully challenged the same before the learned District Judge, Balasore, which was subsequently transferred to the learned A.D.J., Balasore and the learned A.D.J., Balasore dismissed the same. 7. Heard Mr. N.K. Sahoo, learned Advocate for the appellant and Ms. Mishra, learned Additional Standing Counsel for respondent no.1. 8. Mr. Sahoo, learned Advocate for the appellant argued with vehemence that the plaintiff is the adopted daughter of Bholanath Ray. The Ex-intermediaries leased out the suit land in favour of her father. Her father had constructed the house and was residing thereon. After her father’s death, she is residing in the said house. Her father was in possession of the land peacefully and continuously with the hostile animus to the defendant no.1 and as such perfected title by way of adverse possession. The Court below committed a manifest illegality and impropriety in not declaring the title of the plaintiff. 9. Per contra, Ms. Mishra, learned Additional Standing Counsel for respondent no.1 supported the judgments. According to her, no lease deed was produced before the learned trial court. The suit schedule land is the Rath Danda of King of Mayurbhanj. The general public uses the same as road. 9. Per contra, Ms. Mishra, learned Additional Standing Counsel for respondent no.1 supported the judgments. According to her, no lease deed was produced before the learned trial court. The suit schedule land is the Rath Danda of King of Mayurbhanj. The general public uses the same as road. An attempt has been made by the plaintiff to garb the property. The villagers used to observe the festivals of Sri Sri Radhakrushna Jew on the suit land as a Dolamandap. 10. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vs. Debendra Lal Khan, AIR 1934 PC 23 , held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. 11. 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. 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) 12. On the anvil of the decision cited supra, the case of the plaintiff may be examined. In the M.S. R.O.R. the suit schedule land has been recorded in favour of the State. It is not pleaded by the plaintiff with regard to the date of entry of Bholanath Ray into the suit schedule land. Reliance placed on 15.1.1963 as the date of entry is not correct. The plaintiff asserts that on 15.1.1963, the local R.I. asked her father to vacate the suit land. Thus, by no stretch of imagination, the same can be construed as the date of entry to the suit land. The alleged lease deed said to have been executed by the ex-landlord in favour of Bholanath Ray has not seen the light of day. After coming into force of the Orissa Estate Abolition Act, the estate vested in the State. The Landlord had not submitted the ekpadia in favour of any person. No tenancy ledger was opened in respect of the suit land. Both the courts have rightly held that the plaintiff has not perfected title by way of adverse possession. 13. On an anatomy of the pleadings and evidence on record, both the Courts negatived the plea of adverse possession. The findings of the Courts below cannot be said to be perverse. In the result, the appeal is dismissed. No costs.