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2017 DIGILAW 492 (ORI)

Sarmistha Mahapatra v. State of Orissa

2017-05-01

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff. 2. The case of the plaintiff is that her mother had donated Ac.0.100 dec. of land appertaining to Plot No.3550/3930/4992 to her husband by means of a gift deed dated 26.5.1965. An area of Ac.0.092 dec. of Government land is situated on the western side of the aforesaid land. The said land was in possession of the original vendor Arat Sahoo. The kissam of the land was ‘Chandana’. She is in possession of Ac.0.192 dec. of land. In the Hal Settlement, ROR Ac.0.116 dec. of land has been recorded in her favour. The rest Ac.0.076 dec. of land is in her possession from 1948. She submitted the documents before the concerned authority to construct a house. The authority doubted the title of the plaintiff in respect of Ac.0.76 dec. of land, which is part of the suit land. Thereafter, she instituted the suit to include Ac.0.92 dec. in the ROR. 3. The defendant did not contest the suit and was set ex parte. To prove the case, the plaintiff had examined herself as P.W.1. On her behalf four documents had been exhibited. Learned trial court came to hold that the plaintiff failed to establish her title in respect of Ac.0.76 dec. of Government land by way of adverse possession and dismissed the suit ex parte against the defendant. Assailing the judgment and decree of the learned trial court, the plaintiff filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the learned Addl. District Judge, Bhubaneswar and re-numbered as RFA No.4/1 of 2003/03. The learned appellate court dismissed the appeal. 4. The second appeal was admitted on the following substantial question of law. “Whether the courts below were justified in rejecting the plea of the plaintiff-appellant that she had acquired title over Ac.0.92 decimals of land by way of long and adverse possession, when there was pleading and evidence of the plaintiff in this regard and there was no denial by the defendant ?” 5. Heard Mr. D.S. Mishra, learned counsel for the appellant and Mr. P.C. Panda, learned AGA along with Ms. Samapika Mishra, ASC for the State. 6. Mr. Heard Mr. D.S. Mishra, learned counsel for the appellant and Mr. P.C. Panda, learned AGA along with Ms. Samapika Mishra, ASC for the State. 6. Mr. Mishra, learned counsel for the appellant submitted that the plaintiff is in possession of the suit land peacefully, continuously and openly and with the hostile animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession. He further submitted that the defendant no.3 was set ex parte. In view of the uncontroverted assertions made in the plaint, learned courts below are wholly incorrect in negativing the plea of adverse possession. 7. Adverse possession is a mixed question of fact and law. 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. 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. 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) 8. There is no pleading with regard to the date of entry of the plaintiff into the suit land. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Both the courts, on a threadbare analysis of evidence on record as well as pleading, negatived the plea of adverse possession. Findings recorded by the courts below cannot be said to be perverse. The substantial question of law is answered accordingly. 9. In the result, the appeal is dismissed. No costs.