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2017 DIGILAW 396 (ORI)

Debendra Kumar Nayak v. State of Orissa

2017-04-12

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 01. This is a plaintiffs’ appeal against a confirming judgment in a suit for declaration of right, title and interest, confirmation of possession and permanent injunction. 02. The case of the plaintiffs is that the suit land was originally Bhogra land. The same has been converted into rayati status as per the Press Note and Board’s instruction by the competent court in favour of the original plaintiff, Goura Charan Naik, finding his possession on the appointed date, i.e., on 1.7.1955. The State had filed no objection to such settlement and no challenge had been made by the State. He was in possession of the suit land. While the matter stood thus, the Gram Panchayat had gathered construction materials over the suit land for construction of a house on it. On enquiry, he came to know that the suit land was omitted in rayati khatian despite order by the R.D.C., Sambalpur allowing the appeal for settlement of Bhogra land in his favour. The same was without jurisdiction. It did not extinguish his right, title, interest over the land. It is further pleaded that he was in possession over the suit land prior to 1955 openly, peacefully, continuously with hostile to the Government and as such perfected title by way of adverse possession. Further, the suit was never reserved for Gram Sabha. The Panchayat is a trespasser. With this factual scenario, the plaintiffs have filed the suit claiming the reliefs mentioned supra. It is pertinent to mention here that during pendency of the suit the plaintiff died, where after his legal representatives, appellants herein, have been brought on record. 03. The defendant no.1 filed a written statement denying the assertions made in the plaint. The case of the defendant no.1 is that the suit land was not originally Bhogra land and it was not converted into rayati status. The suit land belonged to the State of Orissa. The 4th settlement ROR as well as consolidation ROR were published in the name of the State. The plaintiff was not in possession of the suit land at any point of time. It is pleaded that the R.D.C., Sambalpur had not settled the suit land in favour of the plaintiff. On the other hand, the Gram Panchayat had constructed godown over the suit land. The plaintiff was not in possession of the suit land at any point of time. It is pleaded that the R.D.C., Sambalpur had not settled the suit land in favour of the plaintiff. On the other hand, the Gram Panchayat had constructed godown over the suit land. The said godown is now used for the purpose of storage of kerosene oil, rice, fertilizer, etc. Prior to such construction, the kine house of Gram Panchayat was there. The plaintiff has no manner of right, title, interest or possession over the suit land. There was also no valid notice against the defendant. The defendant nos.2 to 4 were set ex-parte. 04. On the in-terse pleadings of the parties, learned trial court struck as many as six issues. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf thirteen documents had been exhibited. On behalf of the defendants, one witness had been examined and one document had been exhibited. 05. Learned trial court on scrutiny of the order dated 10.1.1968 passed by the R.D.C., Sambalpur in Bhogra Appeal No.1 of 1967 vide Ext.4 and the order dated 16.12.62 passed in B.C.P. Case No.317/1955-56 vide Ext.5 came to hold that Exts.4 and 5 do not indicate the actual plot number or description of land which was settled in favour of the plaintiff. The name of the State was recorded in the 4th settlement ROR in respect of khata no.1, Ext.2. The kisam of the land is Abada Jogya Anabadi. In the consolidation ROR of Holding No.154, Ext.1, the suit land has been recorded in the name of the State Government. The plaintiffs have not filed any document to correlate the suit land in the consolidation plot and corresponding 4th settlement plot. They failed to state about the boundary of the suit land. The suit property is unspecific. The plaintiffs have also failed to establish that the suit land was settled in favour of their ancestor Goura Charan Naik. No prayer has been made to set aside the consolidation ROR. The civil court cannot sit over the decision of consolidation authority in preparation of ROR in the absence of any prayer to declare the consolidation ROR erroneous. It further held that the plaintiffs were not in possession of the suit land. It negatived the plea of adverse possession and dismissed the suit. The civil court cannot sit over the decision of consolidation authority in preparation of ROR in the absence of any prayer to declare the consolidation ROR erroneous. It further held that the plaintiffs were not in possession of the suit land. It negatived the plea of adverse possession and dismissed the suit. The unsuccessfully plaintiffs challenged the judgment and decree of the learned trial court before the learned District Judge, Sonepur in R.F.A. No.1 of 2006, which was eventually dismissed. 06. Heard Mr. Budhiram Das, learned counsel for the appellants. 07. Mr. Das, learned counsel for the appellants submitted that suit schedule land was originally Bhogra land. The same was converted to rayati status in favour of the original plaintiff on 1.7.1955. By order dated 10.1.1968 in Bhogra Appeal No.1 of 1967, the R.D.C., Sambalpur settled the suit land in favour of the plaintiff. However, during the consolidation operation, the suit land had been wrongly recorded in the name of the State. The consolidation authorities cannot sit over the order passed by the revenue authorities. The judgments of the courts below are vitiated for non-consideration of the points raised and arguments advanced. 08. The consolidation operation in the area, wherein the land falls, started. The consolidation authorities after adjudicating the right, title and interest of the parties issued record of right. 09. The Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (in short, ‘OCH & PFL Act’) is a special statue. The OCH & PFL Act was enacted for consolidation of scattered holdings and re-arrange the holdings including fragmented holdings among various landowners to make them more compact and to provide against future fragmentation of holdings. The consolidation operation starts when a notification under Sec.3 is issued and the same is closed by Sec.41 notification. During consolidation operation, the consolidation authorities discharged various functions. 10. A hierarchy of forum is provided for redressal of grievance. When consolidation operation in an area starts, the suits pending before the civil court stand abated. In view of the embargo under sub-sec.(2) of Sec.51 of the OCH & PFL Act, the jurisdiction of the civil court is ousted when the consolidation operation of the area is in operation. 10. A hierarchy of forum is provided for redressal of grievance. When consolidation operation in an area starts, the suits pending before the civil court stand abated. In view of the embargo under sub-sec.(2) of Sec.51 of the OCH & PFL Act, the jurisdiction of the civil court is ousted when the consolidation operation of the area is in operation. All questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction or Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of the OCH & PFL Act by the appropriate authority during the consolidation operations. 11. Notwithstanding the closure of consolidation operation and publication of record-of-right, the aggrieved party may institute the suit or approach the authority under Section 37 of the OCH & PFL Act. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of-right published by the consolidation authority, the suit for declaration of title is not maintainable. 12. Admittedly there is no prayer to set aside the consolidation record of right. Learned trial court came to hold that Exts.4 and 5 do not indicate the actual plot number or description of the land which was settled in favour of the plaintiffs. The 4th settlement record of right was published in the name of the State. The kisam of land was Abada Jogya Anabadi. The description of the suit land is unspecific. 13. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law. 14. 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. Nonuse 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. Nonuse 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. 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 15. On a threadbare analysis of the evidence on record and pleadings, both the courts negatived the plea of adverse possession. There is no perversity in the findings of the courts below. 16. Resultantly, the appeal fails and is dismissed, since the same does not involve any substantial question of law.