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2017 DIGILAW 437 (ORI)

State of Orissa v. Saibani Pradhan

2017-04-21

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. State of Orissa is the appellant against a confirming judgment of the learned District Judge, Keonjhar. 2. Nishakar Pradhan, predecessor-in-interest of the plaintiffs, instituted T.S No.27 of 1984 in the court of the learned Subordinate Judge, Keonjhar for declaration of right, title and interest and for a declaration that the order passed by the Tahasildar, Telkoi in Encroachment Case No.1 of 1983-84 is not binding. The case of the plaintiff is that suit land admeasuring A1.48 dec. appertaining to Sabik Khata No.95 of village-Nayakot was the jungle land. The said land was cleared by the father of the plaintiff about 50 years back. The father of the plaintiff was in possession of the land. After death of his father, the plaintiff was in possession of the suit land. It is stated that he was in possession over the suit land continuously, peaceful and openly without any interruption for more than the statutory period and as such, perfected title by adverse possession. The Tahasildar initiated Encroachment Case No.1 of 1983-84 basing on the report of the R.I. and disturbed peaceful possession of the plaintiff. 3. The defendants filed a written statement denying the assertions made in the plaint. It is stated that the father of the plaintiff converted the jungle land into the cultivable land. The plaintiff in connivance with the settlement authority recorded his name in the column meant for note of possession in the ROR. A proceeding under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as “the OPLE Act”) was initiated against him. Notice was issued to him by the Tahasildar. He did not appear. The case was decided ex parte. He was directed to vacate the suit land. It is further stated that the suit land appertaining to Khata No. 84, Hal Plot No.281 has been recorded as Godandi. The rest plots as jungle Kissam. His name has been recorded in the column meant for note of possession. It is further stated that since he was in unauthorized occupation, encroachment case was initiated and the order of eviction passed against him. Further, he had not acquired any title by way of adverse possession. The suit is not maintainable in view of Section 16 of the OPLE Act. 4. On the inter se pleadings of the parties, learned trial court struck five issues, out of which, issue no.4 is pivotal. Further, he had not acquired any title by way of adverse possession. The suit is not maintainable in view of Section 16 of the OPLE Act. 4. On the inter se pleadings of the parties, learned trial court struck five issues, out of which, issue no.4 is pivotal. The same is quoted below; “4. Has the plaintiff acquired title by way of adverse possession against the State Government in respect of the suit land ?” 5. To prove his case, the plaintiff had examined three witnesses and on his behalf, one document had been exhibited. The defendants had examined one witness and on their behalf, two documents had been exhibited. Learned trial court held that the plaintiff has acquired valid title by way of adverse possession and decreed the suit. Feeling aggrieved, the defendants filed appeal. The same was dismissed. It is apt to state here that during pendency of the appeal, sole respondent no.1 died, whereafter his legal representatives respondent nos.1 to 4 have been brought on record. 6. The appeal was admitted on the following substantial questions of law; A. Whether the courts below committed error in not giving a finding that from what particular point of time the plaintiffs started adversely possessing of the disputed land and thus acquired title by adverse possession? B. Whether the courts below committed cross error in not discussing the evidence with regard to the act of possession of the plaintiffs ? 7. Heard Mr. P.C Panda, learned Addl. Government Advocate for the appellants and Mr. D.P. Mohanty, learned counsel for the respondents. 8. Mr.Panda, learned Addl. Government Advocate for the appellants, submitted that the plaintiff has no semblance of right, title and interest over the suit land. The State of Orissa is the paramount owner of the suit land. The record-of-right has been published in the name of the State of Orissa. Since the plaintiff was in unauthorised occupation of the suit land, the proceeding under the OPLE Act was initiated against him. Though notice was issued to him, but he had chosen not to appear. The order of eviction was passed on 4.4.1984 directing the plaintiff to vacate the land. The suit land has been recorded in the record-of-right as Godandi and the rest plots are jungle kissam. The date of entry of the plaintiff over the suit land has not been mentioned. The order of eviction was passed on 4.4.1984 directing the plaintiff to vacate the land. The suit land has been recorded in the record-of-right as Godandi and the rest plots are jungle kissam. The date of entry of the plaintiff over the suit land has not been mentioned. Both the courts below have committed manifest illegality and impropriety in decreeing the suit. He relied on the decision of the apex Court in the case of Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 . 9. Per contra, Mr. Mohanty, learned counsel for the respondents, submitted that on a threadbare analysis of the evidence on record, both the courts below held that the plaintiff has perfected title by way of adverse possession. Initiation of encroachment proceeding is bad in law. There is no perversity in the finding of the courts below. He further submitted that in the second appeal, this Court cannot re-appreciate the documentary and oral evidence unless the finding is perverse. Both the courts below have rightly arrived at the conclusion that the plaintiff has perfected title by way of adverse possession. 10. Before proceeding further, it is apt to refer to the decision of the apex Court in the case of Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 . The apex Court at para-11 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 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.” 11. The mere fact of long possession is not sufficient to alter the character of permissive possession into the adverse one as held by this Court in the case of Baruna Giri and others v. Rajakishore Giri and others, AIR 1983 Orissa 107. 12. 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. The date of entry into the suit land has not been mentioned except the bald assertion that the plaintiff was in possession of the land for about 50 years. Long and continuous possession by itself would not constitute adverse possession as held by the apex Court in the case of Md. Mohammad Ali (Dead) By Lrs v. Jagadish Kalita and others, (2004) 1 SCC 271. The findings of the courts below are perverse. The courts below committed a patent error in not rendering the finding with regard to the date of entry of the plaintiff into the suit land. The substantial questions of law are answered accordingly. 13. In the result, the judgment and decree of the courts below are set aside. Consequently, the suit is dismissed. The courts below committed a patent error in not rendering the finding with regard to the date of entry of the plaintiff into the suit land. The substantial questions of law are answered accordingly. 13. In the result, the judgment and decree of the courts below are set aside. Consequently, the suit is dismissed. The appeal is allowed.