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2017 DIGILAW 327 (ORI)

Bhuban Mallik v. State of Orissa

2017-03-24

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This is an appeal by the plaintiffs against the judgment and decree of the learned Additional District Judge, Bhadrak in Title Appeal No. 6/121 of 1985/87-I confirming the judgment and decree dated 21.12.1984 and 7.1.1985 passed by the learned Munsif, Bhadrak in T.S.No.111 of 1980. 2. The case of the plaintiffs is that the suit land originally belonged to the ex-Landlords, Upendra Mahapatra and others. It was recorded as “Anabadi” in 1930 settlement. Plaintiff no.1 is the uncle of plaintiff no.2. Both of them are in joint mess and property. They took the suit land on lease basis from the ex-landlords on payment of salami of Rs.200/- by means of an unregistered leased deed in the month of Falgoon of 1350 sal. Possession was delivered to them. They are in peaceful possession of the same from the date of lease. They made it fit for cultivation by spending huge amount and raised paddy crops. They used to pay rent to the ex-landlords. They are in possession of the suit land for more than thirty years and as such they have perfected title by way of adverse possession. Their house was completely damaged in 1960 flood. The unregistered lease deed and other valuable papers were also damaged in the said flood. While the matter stood thus, the suit land vested in the State Government. When the plaintiffs tendered rent, the R.I. refused to accept it. With this factual scenario, they instituted the suit for declaration of right, title, interest and confirmation of possession over the suit schedule land and also for declaration that the Major Settlement entry relating to the suit schedule land is wrong and also for issuing permanent injunction against the defendant. 3. Pursuant to issuance of summons, the defendant entered appearance and filed a written statement. The case of the defendant is that the plaintiffs had not taken the suit land on lease from the ex-landlord. They are not in possession of the same from 1350 sal. They have no semblance of right, title and interest over the suit land. The Major Settlement entry was prepared after due verification. Encroachment cases were initiated against the plaintiffs as they were in unauthorized possession of the suit schedule land. 4. On the inter se pleadings the learned trial court framed eight issues, out of which, issue no.5 is pivotal. The same is:- “5. The Major Settlement entry was prepared after due verification. Encroachment cases were initiated against the plaintiffs as they were in unauthorized possession of the suit schedule land. 4. On the inter se pleadings the learned trial court framed eight issues, out of which, issue no.5 is pivotal. The same is:- “5. Have the plaintiffs right, title, interest and possession over the suit schedule land?” 5. To substantiate the case, the plaintiffs had examined six witnesses and eight documents had been exhibited. Neither any witness by the defendant nor any document was exhibited. The learned trial court to hold that evidence of the witnesses of the plaintiffs is inconsistent and discrepant with regard to delivery of possession of the suit land. P.Ws.4 and 5 in their cross-examination have stated that ekpadia was submitted in the name of the plaintiffs after vesting. The same was neither called for from the concerned Tahasil Office nor the tenant ledger was proved to lend support to the fact that the lease deed with regard to the suit land granted by the ex-landlord was damaged in 1960 flood. No boundary witness was examined. The suit land has been vested in the State under the provisions of Orissa Estate Abolition Act. Encroachment Case No. 98 of 1976 was initiated against the plaintiffs for their unauthorized possession over the suit land. There is no satisfactory evidence to establish that the suit land was leased out by the ex-landlord in 1350 sal. The plaintiffs are in possession of the suit land after Major Settlement operation was over and, accordingly, answered issue no.5 in negative. The suit was dismissed. The plaintiffs had unsuccessfully challenged the judgment and decree of the learned Munsif, Bhadrak before the learned Additional District Judge, Bhadrak in Title Appeal No. 6/121 of 1985/87-I, which was eventually dismissed. 6. The Second Appeal was admitted on the following substantial questions of law enumerated in grounds no. A and C of the appeal memo. The same are :- “(A) Whether the plaintiffs have acquired tenancy right in respect of the suit land in view of the fact that the ex-landlord had accepted them as tenants by acceptance of rent. 6. The Second Appeal was admitted on the following substantial questions of law enumerated in grounds no. A and C of the appeal memo. The same are :- “(A) Whether the plaintiffs have acquired tenancy right in respect of the suit land in view of the fact that the ex-landlord had accepted them as tenants by acceptance of rent. (C) Whether in view of the fact that there has been admission by the ex-landlord about settlement of the suit land with the plaintiffs and delivery of possession of the land to the plaintiffs have the forums below committed error of record in observing that the plaintiffs have not proved possession.” 7. Mr. Mohanty, learned counsel for the appellants submitted that the ex-landlord had granted lease in favour of the plaintiffs but the same was destroyed in the flood. The ex-landlord submitted ekpadia in favour of the plaintiffs after vesting in the State. P.W.5, son of ex-landlord, deposed that his father had granted lease in favour of the plaintiffs and delivered possession of the land. Receipts were granted to the plaintiffs. In view of the same, both the courts below are not justified in dismissing the suit. 8. Per contra, Mr. Mishra, learned Additional Standing Counsel submitted that the suit land originally belonged to ex-intermediary. It was vested in the State. Though the plaintiffs have taken a plea that ekpadia was submitted by the ex-landlord in their favour but the same was not produced. No tenancy ledger was produced in favour of the plaintiffs for unauthorized occupation of the suit land. Encroachment case was initiated against him. 9. The suit land belonged to ex-intermediary. The estate vested in the State free from all encumbrances. Neither any ekpadia was submitted by the ex-intermediary in favour of the plaintiffs, nor any tenancy ledger was opened in their names. The suit land has been recorded as Rakhit Anabadi in the Major Settlement. For unauthorized occupation of the land, Encroachment Case No. 95 of 1976 was initiated against the plaintiffs. Two rent receipts, vide Exts. 3 and 3(A), have been disbelieved by the courts below on the ground that the same does not contain the year on which the rent was paid. Both the courts below held that no rent was paid after vesting. 10. Adverse possession is a mixed question of fact and law. Two rent receipts, vide Exts. 3 and 3(A), have been disbelieved by the courts below on the ground that the same does not contain the year on which the rent was paid. Both the courts below held that no rent was paid after vesting. 10. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 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”. Both the courts below on a threadbare analysis of the evidence on record, oral as well as documentary, and pleadings negatived the plea of adverse possession. There is no perversity in the same. Thus the substantial questions of law are answered accordingly. 11. In the result, the appeal fails and accordingly the same is dismissed. No costs.