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2017 DIGILAW 328 (ORI)

Ramjan Khan v. State of Orissa

2017-03-24

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This is plaintiff’s appeal against the judgment and decree dated 27.11.1996 and 12.12.1996 respectively passed by the learned District Judge, Sundargarh in T.A. No. 06 of 1992 reversing the judgment and decree dated 30.11.1991 and 16.12.1991 respectively passed by the learned Munsif, Sundargarh in T.S. No. 23/105 of 1989. 2. The case of the plaintiffs is that Hal Khata No. 519, Plot Nos.44, 45 and 46, area Ac.0.210 dec. of Rajgangpur ‘Kha’ Mouza was recorded in the name of Orissa Sarkar. Their father, Munsi Garib Mian was in possession of the suit schedule land till his death in the year 1972. He built up a godown over the suit land. He was a bone and hyde merchant. The house was used for business purpose. After death of his father, he was in occupation of the premises. In the remarks column of the R.O.R. published in the year 1977, forcible possession of their father had been reflected. For non-maintenance of the boundary wall, the same was collapsed. They were in occupation of the land without any hindrance. While matter stood thus, the suit land was handed over to the Telephone Exchange, Rourkela. Thereafter he filed an objection before the Tahasildar, Rajgangpur. But the same was rejected on 01.05.1989. They have perfected title by way of adverse possession. After issuance of notice under Section 80 CPC to defendant no.1, they instituted a suit seeking declaration of possession and permanent injunction. 3. Pursuant to issuance of summons, 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 suit schedule land stood recorded in the name of Orissa Sarkar. In the remarks column of the R.O.R., forcible possession of Munsi Garib Mian had been reflected. On an enquiry, the Tahasildar found that there was no mud boundary wall over the suit land. After requisition from defendant no.2 for alienation of Government land for construction of Auto Telephone Exchange of Rajgangpur, necessary proclamation inviting objection was issued for alienation of the case land in Alienation Case No. 07 of 1989. No objection was received. After thirty days, the Tahasildar, Rajgangpur had recommended for alienation of the suit land to the Sub-Collector, Sundargarh on 28.04.1989. The Sub-Collector recommended to the Collector for sanction. No objection was received. After thirty days, the Tahasildar, Rajgangpur had recommended for alienation of the suit land to the Sub-Collector, Sundargarh on 28.04.1989. The Sub-Collector recommended to the Collector for sanction. The Collector accorded permission on 07.06.1989 on certain terms and conditions and subject to payment of premium of Rs.46,754/-. The premium amount was paid by defendant no.2 to the Tahasildar on 22.07.1989 by demand draft. Thereafter delivery of possession was made to the defendant no.2. The defendant no.2 also filed written statement taking a similar stand. It is stated that pursuant to the requisition for alienation of Government land dated 28.02.1989 by defendant no.1 for construction of departmental building and Auto Telephone Exchange at Rajgangpur, the Tahasildar, Rajgangpur had issued proclamation. After complying with the formalities under the Orissa Government Land Settlement Act and Rules framed thereunder, the Tahasildar recommended to Collector through the Sub-Collector for alienation of the land. The Collector accorded permission. Pursuant to same, the defendant no.2 paid an amount of Rs.46,754/- towards premium. Thereafter the delivery of possession was made to defendant no.2. 4. On the inter se pleadings of the parties, the learned trial court struck six issues. The same are:- “(i) Is the suit maintainable ? (ii) Is there any cause of action for the suit ? (iii) Is the suit bad for non joinder and mis-joinder of parties ? (iv) Whether the plaintiffs have perfected their right, and title over the suit land by way of adverse possession ? (v) Whether the jurisdiction of the Civil Court is ousted as per the provisions of Orissa Prevention of Land Encroachment Act and the Orissa Government Land Settlement Act ? (vi) Whether the plaintiffs are entitled to any relief ?” 5. To substantiate the case, the plaintiffs had examined three witnesses including himself and on their behalf two documents had been exhibited. Defendants had examined seven witnesses and on their behalf, two documents had been exhibited. Learned trial court came to hold that the plaintiffs were in possession of the land after death of their father in the year 1972 and answered issue no.4 in affirmative. It further held that the suit was not maintainable against the defendant no.2 for non-compliance of mandatory provision of Section 80 CPC. Held so, the learned trial court declared the possession of the plaintiffs over the suit land and decreed the suit in part. It further held that the suit was not maintainable against the defendant no.2 for non-compliance of mandatory provision of Section 80 CPC. Held so, the learned trial court declared the possession of the plaintiffs over the suit land and decreed the suit in part. Assailing the judgment and decree passed by the learned trial court, the defendants had filed T.A. No. 06 of 1992 before the learned District Judge, Sundargarh. The plaintiffs had also filed T.A. No. 07 of 1992. Both the appeals were heard together. Learned lower appellate court allowed the defendants’ appeal and dismissed the plaintiffs’ appeal. 6. The appeal was admitted on the substantial questions of law enumerated in Ground Nos.2 (a), (b) and (c). The same are:- “(a) That prayer for declaration of possession having been made against the State Government (Defendant no.1) whether notice under Section 80 CPC was required to be served on defendant no.2. (b) Whether finding of the court below that the plaintiffs failed to prove continuous possession is an error of record in view of specific pleading and evidence that the plaintiffs and their late father have been possessing the land for fifty years. (c) Whether the plaintiffs have acquired title by adverse possession in view of note of possession in the R.O.R. as well as consistent evidence.” 7. Heard Mr. Debasis Pattnaik on behalf of Mr. G.K. Behera, learned counsel for the appellants and Mr. Mr. Swayambhu Mishra, Additional Standing Counsel for the State. 8. Mr. Pattnaik, learned counsel for the appellants, submits that the learned appellate court has committed a manifest illegality and impropriety in dismissing the suit, inter alia, holding that the mandatory provision of Section 80 CPC has not been complied with. He submits that no relief has been claimed by defendant no.2. Thus notice under Section 80 CPC is not required to issue notice to the said defendant. The alternative submission is that even if the suit is not maintainable against defendant no.2, the same can be dismissed against the defendant no.1 only. He further submits that Munsi Garib Mian, the father of the plaintiffs, was in possession of the suit land for more than 50 years. After death of the father, the plaintiffs are in possession of the suit land peacefully, continuously and with the hostile animus to the defendants and as such, they have perfected title by way of adverse possession. He further submits that Munsi Garib Mian, the father of the plaintiffs, was in possession of the suit land for more than 50 years. After death of the father, the plaintiffs are in possession of the suit land peacefully, continuously and with the hostile animus to the defendants and as such, they have perfected title by way of adverse possession. To buttress his submission, he relies upon a decision of the apex Court in the case of Ram Kumar & Another vs. State of Rajasthan & Others 2008 (II) CLR (SC) 896. 9. Per contra, Mr. Mishra, learned Additional Standing Counsel submits that the suit is not maintainable for non-compliance of the mandatory provision of Section 80 CPC. Both the courts below have rightly negatived the plea of adverse possession. He relies on the decision in the case of Union of India vs. Shamsuddin Waizuddin, AIR 1958 Patna 555. 10. The submission of Mr. Pattnaik, learned counsel for the appellants is difficult to fathom. The provisions under Section 80 CPC is mandatory. Non-compliance of mandatory provision entails dismissal of the suit. 11. In Ram Kumar & Another vs. State of Rajasthan & Others 2008 (II) CLR (SC) 896, respondent No. 3 was a public officer. He had not passed any order as a public officer nor the appellants had asked for setting aside any order passed by the respondent No. 3 as a public officer in respect of any act done in the discharge of his official duties. The appellants have made the respondent No. 3 as a party on the ground that possession was delivered to him by the respondent No. 2 in the exercise of his official capacity. A consequential relief was claimed in the suit to the extent that possession of the suit land should be restored in favour of the appellants by the respondent No. 3. The apex Court held that even in the absence of service of notice on the respondent No.3 under Section 80 CPC, the suit was maintainable in law. 12. The decision cited by Mr. Pattnaik, learned counsel for the appellants is distinguishable on facts. The apex Court held that even in the absence of service of notice on the respondent No.3 under Section 80 CPC, the suit was maintainable in law. 12. The decision cited by Mr. Pattnaik, learned counsel for the appellants is distinguishable on facts. The apex Court held that since respondent no.3 had not passed any order as a public officer nor the appellants had asked for setting aside any order passed by the respondent no.3 as a public officer in respect of any act done in the discharge of his official duties. Notice under Section 80 CPC was not required. 13. On a cursory perusal of the plaint more particularly para13, it is evident that defendant no.2 is a necessary party to the suit. Admittedly, no notice under Section 80 CPC has been issued. The suit is bound to fail for non-compliance of mandatory provision of Section 80 CPC. 14. In the case of State of Maharastra and another vs. Shri Chander Kant, AIR 1977 SC 148 , the apex Court observed as under:- “13. These provisions indicate that the Registrar is a Public Officer. The words “act purporting to be done in official capacity” have been construed to apply to nonfeasance as well as to misfeasance. The word “act” extends to illegal omissions. See Prasaddas v. Bannerjee, ILR 57 Cal 1127 = (AIR 1931 Cal 61). No distinction can be made between acts done illegally and in bad faith and acts done bona fide in official capacity. See Bhagchand Daga-dusa’s case ( AIR 1927 PC 176 ) (supra). Section 80 of the Code of Civil Procedure therefore is attracted when any suit is filed against a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity. The language of Section 80 CPC is that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purporting to be done in his official capacity. The Registrar is a Public Officer. The order is an act purporting to be done in his official capacity.” 15. In the case of Union of India vs. Shamsuddin Waizuddin, AIR 1958 Patna 575, the plaintiff sent a notice to the Secretary, Union of India, Railway Department, New Delhi, and forwarded a copy of this notice to the General Manager, East Indian Railway. The order is an act purporting to be done in his official capacity.” 15. In the case of Union of India vs. Shamsuddin Waizuddin, AIR 1958 Patna 575, the plaintiff sent a notice to the Secretary, Union of India, Railway Department, New Delhi, and forwarded a copy of this notice to the General Manager, East Indian Railway. Thereafter he instituted a suit. It was held that a notice under Section 80 CPC should have been given to the General Manager of the Railway Administrative concerned and, therefore, the notice to the Secretary, Union of India, Railway Department, was invalid and as such the suit was not maintainable. 16. As held supra the suit has been filed for declaration of possession of the plaintiffs over the suit land and permanent injunction against the defendants. Notice under Section 80 CPC is a sine qua non for maintaining the suit against defendant no.2. 17. 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) 18. The date of entry into the suit land by the father of the plaintiffs or the plaintiffs has not been mentioned. Mere possession of the plaintiffs over the suit land is not suffice to say that they have perfected their title by way of adverse possession. Both the courts below have negatived the plea of adverse possession. The substantial questions of law are answered accordingly. 19. In the result, the appeal fails and the same is dismissed. But in the fact of the case, the parties shall bear their cost throughout.