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2017 DIGILAW 438 (ORI)

Harihar Saraf v. State of Orissa

2017-04-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff. 2. The case of the plaintiff is that his father had reclaimed and possessed the suit lands after obtaining written permission from Jogiram Gountia of village Uchhabapali on 12.03.1945. The Gountia was authorized by the State Government to accord such permission. His father was in continuous possession till his death. After death of his father, he remained in possession of the suit land continuously, peacefully and openly with hostile animus to the defendants for more than the statutory period and as such perfected title by way of adverse possession. It is stated that his father was a raiyat in respect of the suit lands under the Patna State Tenancy Law. The Gountia recognized him as a raiyat and accepted rent from him from 1949 to 1951, i.e., till the abolition of Thikadari system in Patna State. While he was in possession, the Tahasildar initiated an encroachment case bearing no.183 of 1973. In the said case, he approached the Tahasildar for settlement of the suit lands in his favour on the basis of his long possession, but the same was refused by him on 27.5.74. Hence he instituted the suit for declaration of right, title and interest. 3. The case of the defendants is that at no point of time the plaintiff or his father had ever exercised any right of ownership over the suit lands to the knowledge of the State. In 1976 settlement, the suit lands stood recorded in the name of the State. Plaintiff had not raised any objection before the settlement authorities disputing the correctness of the entries made in the record of right. He has not filed the suit within the period of limitation for correction of the record of right. 4. On the interse pleadings of the parties, learned trial court struck nine issues. To substantiate the case, the plaintiff had examined four witnesses and on his behalf fourteen documents had been exhibited. On behalf of the defendants, one document had been exhibited. 5. Learned trial court came to hold that the plaintiff had not adduced any evidence to show from which year or date his possession was adverse to the title of the State-defendants. The plaintiff filed an application in the year 1973, Ext.4, before the Tahasildar praying to settle the land in his favour. He acknowledged the title of the State. 5. Learned trial court came to hold that the plaintiff had not adduced any evidence to show from which year or date his possession was adverse to the title of the State-defendants. The plaintiff filed an application in the year 1973, Ext.4, before the Tahasildar praying to settle the land in his favour. He acknowledged the title of the State. The possession of the suit land is permissive. Held so, learned trial court dismissed the suit. The plaintiff unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Balangir, which was subsequently transferred to the court of the learned Additional District Judge, Balangir and renumbered as T.A. No.37/21 of 1991-92. The appeal was dismissed. 6. The second appeal was admitted on the following substantial question of law. “As to whether the plaintiff’s application for settlement of land in his favour under Ext.4 has admitted the State to be the owner of the disputed land and he having been in continuous adverse possession of the same, whether the decision reported in Vol.63(1987) CLT, page-454 will be applicable to the fact of this case.” 7. Heard Ms. Jyotsnamayee Sahu, learned counsel on behalf of Mr. Manoj Mishra, learned Senior Advocate for the appellant and Mr. P.C. Panda, learned Additional Government Advocate for the respondents. 8. The dispute pertains to area Ac.14.70 dec. of land of village Uchhabapalli in the district of Balangir. The assertion of the plaintiff is that one Jogiram Gountia of the said village accorded written permission to his father to possess the land. With the permission granted by the Gountia, his father reclaimed the suit land on 12.3.1945. After his death, he is in possession of the land in question continuously, peacefully and openly with hostile animus to the defendants for more than the statutory period and as such perfected title by way of adverse possession. It further stated that in the Encroachment Case No.183 of 1973 initiated by the Tahasildar, Balangir, he filed an application for settlement of the land which was rejected. Thereafter he instituted the suit. 9. 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. 10. Thereafter he instituted the suit. 9. 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. 10. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that “the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor”. 11. Long and continuous possession by itself would not constitute adverse possession as held by the apex Court in the case Md. Mohammad Ali (Dead) By Lrs. v. Jagadish Kalita and others, (2004) 1 SCC 271. 12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property as held by the apex Court in the case of T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570 . 13. The plaintiff made an application before the Tahasildar for settlement of the land on 29.3.73, Ext.4. He admits the title of the State. There is no hostile animus. The title clearly resides in the State. Possession of the plaintiff is permissive. 13. The plaintiff made an application before the Tahasildar for settlement of the land on 29.3.73, Ext.4. He admits the title of the State. There is no hostile animus. The title clearly resides in the State. Possession of the plaintiff is permissive. The mere fact of long possession is not sufficient to alter the character of permissive possession into an adverse one as held by this Court in Baruna Giri and others vs. Rajakishore Giri and others, AIR 1983 ORISSA 107. Both the courts on a threadbare analysis of the evidence on record as well as pleadings negatived the plea of adverse possession. There is no perversity in the findings of the courts below. 14. The decision in the case of Sakhi Bhuyan and others vs. Bansidhar Mohanty, 63(1987) CLT 454 is distinguishable on facts. In paragraph 5 of the said report, this Court held that the same is a peculiar case. On the suggestion of the Court, the matter was compromised. In paragraph 6 of the report, learned Judge held that although he has held that the substantial question of law formulated by this Court would not be of any assistance to reverse the decree, in view of the acceptance of proposal by the plaintiff, the suit decree is accordingly modified. The same is not a binding precedent. Accordingly, the substantial question of law is answered. 15. In the result, the appeal, being devoid of merit, is dismissed. There shall be no order as to costs.