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2017 DIGILAW 273 (ORI)

Nanda Kishore Behera v. State of Orissa

2017-03-15

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. Plaintiff is the appellant against an affirming judgment in a suit for declaration of right, title and interest, confirmation of possession and permanent injunction 2. The dispute pertains to Anabadi land appertaining to Plot No.588, Khata No.224, area H.O.113R of Mouza-Jiringipada in the district of Phulbani. The case of the plaintiff is that Dhananjaya Behera and Basistha Behera were the original inhabitants of village-Baida. They came to Phulbani 60 years back to eke out their livelihood. They occupied different patch of land at Phulbani and resided there by constructing huts. Dhananjaya occupied the suit land and Basistha Plot Nos.483, 486 and 487. They were doing small business. Dhananjaya had three sons, namely, Banamali, Sania and Parameswar through his wife Seema. Markanda, defendant no.5, is the son of Banamali. Binayak, defendant no.8, is the son of Parameswar. Sania had two sons, namely, Bipra and Sudhansu, defendants 6 and 7 respectively. Seema became widow at a young age. Thereafter, she married Basistha. Out of their wedlock, the plaintiff was born. The plaintiff along with sons of Dhananjaya remained in possession of the suit land. In the settlement ROR, their names had been recorded in the remarks column. They are in continuous possession over the suit land with hostile animus for more than the statutory period. With this factual scenario, the suit has been filed for declaration of right, title and interest over the suit land, confirmation of possession and permanent injunction impleading the defendants and proforma defendants 5 to 8. 3. Defendants 1 and 2 filed a written statement denying the assertions made in the plaint. Apart from denying the relationship between Dhananjaya and the plaintiff, the possession of Dhananjaya, his legal heirs and the plaintiff over the suit land has also been denied. The suit land has been recorded under Patita Kissam with note of illegal possession of Banamali. The same is lying vacant. The road has been constructed over a portion of the suit land. The specific stand of the defendants is that the State is the absolute owner of the suit land. Defendants 6 and 7 also filed written statement denying the assertions made in the plaint. According to them, Dhananjaya and Basistha are related to each other. Basistha had no right, title and interest over the suit land. The N.A.C has constructed a road over a portion of the suit land. Defendants 6 and 7 also filed written statement denying the assertions made in the plaint. According to them, Dhananjaya and Basistha are related to each other. Basistha had no right, title and interest over the suit land. The N.A.C has constructed a road over a portion of the suit land. Defendants 3, 4, 5 and 8 were set ex parte. 4. On the rival pleadings of the parties, learned trial court framed five issues, out of which issue no.3 is pivotal. The same is quoted below; “3. Whether the plaintiff and proforma defendant Nos.5 and 8 have perfected their title over the suit land by adverse possession?” 5. To prove the case, the plaintiff had examined two witnesses and on his behalf, one document had been exhibited. The defendants had examined two witnesses. Learned trial court came to hold that the plaintiff has not acquired title over the suit land by way of adverse possession and dismissed the suit. The plaintiff unsuccessfully challenged the judgment and decree before the learned District Judge, Phulbani in RFA No.26 of 2006, which was eventually dismissed. 6. Ms. Acharya, learned counsel for the appellant, submitted that the ancestor of the plaintiff was in possession over the suit land. Thereafter, the plaintiff is in possession over the same peacefully, continuously and with hostile animus to the defendants. If the possession of the ancestor be tacked with the possession of the plaintiff then it is evident that the plaintiff is in possession over the suit land for more than 30 years peacefully, continuously and with the hostile animus to the defendants. 7. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, 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. 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.” 8. The courts below have held that neither the plaintiff nor his father was in possession over the suit land. The date of entry into the suit land by the father of the plaintiff or the plaintiff has not been mentioned. Adverse possession is a mixed question of fact and law. Both the courts below have negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. 9. In the result, the appeal, devoid of any merit, is dismissed, since the same does not involve any substantial question of law. No costs.