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2017 DIGILAW 289 (ORI)

Minaketan Parichha v. State of Orissa

2017-03-17

A.K.RATH

body2017
JUDGMENT : DR. A.K. RATH, J. 1. This is a plaintiffs’ appeal against a confirming judgment. 2. Bhanumati Parichha, the predecessor in interest of the plaintiffs filed the suit for declaration of right, title, interest, confirmation of possession and in the alternative recovery of possession and for a further declaration that the orders of the Tahasildar in an encroachment case are not binding. The case of the plaintiff is that prior to 1950 Umerkote was a small tribal village within deep jungle. As the population grew, the inhabitants of the village reclaimed portions of forests land for the purpose of cultivation. The occupants by virtue of their customary rights enjoyed the reclaimed lands. The erstwhile Zaminder of Jeypore of Umerkote collected rent from them. The forefathers of Dullabh Naik and Hari Naik were the tenants under the Zamindar. After abolition of estate on 29.12.1952, they became the tenants under the Government. While the matter stood thus, she purchased Ac.9.00 dec. of agricultural land appertaining to khata no.29, survey nos.161, 162 and 165 (total extent of Ac.26.62 cents) from Dullabh Naik, his three minor sons and Hari Naik by means of a registered sale deed dated 26.10.1953. Possession of the land was dully delivered to her. Since the date of purchase, she has been in exclusive and continuous possession of those lands. The final R.O.R. published in the year 1955. Patta for Ac.5.27 cents were granted in favour of the plaintiff in respect of khata no.29/kha and survey nos.161/2(Ac.1.09) and No.165/2(Ac.4.18 cents). The remaining portions of the lands were wrongly recorded as Anabadi lands in Government Khata no.88. She was not aware of the settlement recordings. But such wrong recording did not affect her possession over the lands. The defendant no.2 Tahasildar, Umerkote initiated Encroachment Case No.2016/76 against the plaintiff in respect of an area Ac.1.68 cents appertaining to plot no.163 of khata no.88. During the encroachment proceeding, she became aware of the wrong recording. The defendant no.2 passed order of eviction against her and imposed penalty. For realization of the said amount, Certificate Case No.127/78 was initiated. She paid the penalty amount under protest. Initiation of encroachment proceeding by defendant no.2 was illegal and without jurisdiction. 3. Pursuant issuance of summons, the defendants entered appearance and filed a joint written statement. The defendant no.2 passed order of eviction against her and imposed penalty. For realization of the said amount, Certificate Case No.127/78 was initiated. She paid the penalty amount under protest. Initiation of encroachment proceeding by defendant no.2 was illegal and without jurisdiction. 3. Pursuant issuance of summons, the defendants entered appearance and filed a joint written statement. The case of the defendants is that the suit land was never a part of the purchased land of the plaintiff. The plaintiff, having not explained regarding the short fall in her record of rights for the rest Ac.2.05 cents of land, has not come to the Court with clean hands. The vendors of the plaintiff were not in possession of the suit land. The suit land was all along under the possession of the defendants i.e., the State. Initiation of Encroachment Case No.2016/76 against the plaintiff was proper and legal. The plaintiff being not a landless person, the suit land could not have been settled in her favour under the O.P.L.E. Act. Therefore, penalty was imposed upon her. 4. On the inter se pleadings, the learned trial court struck five issues. To prove the case, the plaintiff has examined seven witnesses and on her behalf, six documents have been exhibited. The defendants have examined two witnesses and on its behalf four documents have been exhibited. The learned trial court held that there is absolutely no evidence on record that Dullabh Naik and Hari Naik have cleared the forests and converted it into cultivable lands. There is no other material on record to show that they were in possession of the suit plot at any time prior to 1950. Not a single rent receipt has been filed by the plaintiff showing payment of rent by Dullabh Naik and Hari Naik to the Zamindar in respect of the suit plot. The plaintiff has not been able to prove that Dullabh Naik and Hari Naik continuously possessed the suit land for more than 12 years. The plaintiff has failed to prove that Dullabh Naik and Hari Naik possessed the suit lands immediately prior to the execution of the Ext.2/b. It further held that on 29.10.76, order of eviction was passed against the plaintiff. On receipt of the notice, the plaintiff sent a petition to the Board of Revenue praying settlement of the suit land in her favour. On receipt of the notice, the plaintiff sent a petition to the Board of Revenue praying settlement of the suit land in her favour. There is no material on record regarding the consequence of her application to the Board of Revenue. Subsequently, after consideration of all the applications, the Tahasildar passed order of eviction against the plaintiff. On 4.6.1979, P.W.7 appeared before the Tahasildar and made an application informing that they have left the encroached land. The learned trial court negatived the plea of adverse possession. Held so, the learned trial dismissed the suit. The plaintiff unsuccessfully challenged the same before the learned Civil Judge (Sr.Division), Nabarangpur in T.A.No.5 of 1996, which was eventually dismissed. 5. Learned Advocate for the appellants submitted that Dullabh Naik and Hari Naik were the tenants under the ex-intermediary. After abolition of estate, they were the deemed tenants under the Government. The original plaintiff purchased the suit land from Dullabh Naik and Hari Naik by means of a registered sale deed. Since the date of purchase she is in exclusive possession of the suit land. Patta was granted in respect of a portion of the land purchased by her. The remaining portion had been wrongly recorded as Anabadi land in Government khata. She was not aware of the wrong recording. In the encroachment proceeding, she paid penalty under protest. The initiation of encroachment case is bad in law. Even otherwise the plaintiff is in possession of the suit land for more than the statutory period peacefully, continuously with the hostile animus to the true owner and, as such, perfected by way of adverse possession. 6. The land belonged to ex-intermediary. After coming into force of the Orissa Estate Abolition Act, the land vested in the State. The learned trial court came to hold that there is no evidence on record that Dullabh Naik and Hari Naik cleared the forest growth and converted the suit land into cultivable land. It further held that there is also no material on record that they were in possession of the suit land prior to 1950. Not a single rent receipt has been filed to show that Dullabh Naik and Hari Naik paid rent to the ex-intermediary. The mother of the plaintiffs had no title over the suit land and as such the plaintiff cannot derive any title by virtue of any alienation. 7. Not a single rent receipt has been filed to show that Dullabh Naik and Hari Naik paid rent to the ex-intermediary. The mother of the plaintiffs had no title over the suit land and as such the plaintiff cannot derive any title by virtue of any alienation. 7. In the encroachment case, the order of eviction was passed. On receipt of notice, the plaintiff sent a petition to the Board of Revenue praying for settlement of the suit land in her favour. The plea of plaintiff is mutually destructive. She advanced the plea that she is a deemed tenant, but on the other hand, prayed for settlement of the land. The Tahasildar has passed an order of eviction in the encroachment case. On 4.6.1979, the husband of the plaintiff P.W.7 appeared before the Tahasildar and informed that the suit land has been vacated. The plaintiff has also paid penalty. 8. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. The person claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. On an anatomy of the pleadings and evidence on record, the courts negatived the plea of adverse possession. There is no perversity in the findings of the courts below. Though she asserts title by way of adverse possession, but then she applied to the municipality for lease. The plaintiff admits the title of the true owner. 9. Both the courts below, on a thread bare analysis of the document both oral and documentary and pleadings, negatived the plea of adverse possession. There is no perversity in the same. In the wake of the aforesaid, the appeal is dismissed since the same does not involve any substantial questions of law.