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2017 DIGILAW 608 (ORI)

Sudhakar Dhal v. State of Odisha

2017-06-19

D.DASH

body2017
JUDGMENT : 1. The unsuccessful plaintiff of C.S. No. 517 of 2010 of the court of learned Civil Judge (Senior Division), Dhenkanal has called in question the judgment and decree passed by the learned Additional District Judge, Dhenkanal in R.F.A. No. 18/28 of 2012/2014 confirming the judgment and decree passed by the trial court in dismissing the suit. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that in the year 1971 on the auspicious day of ‘Akshaya Trutiya’ he entered into the suit land which was lying fallow, made it fit for cultivation and continued to possess the same by raising crops every year. Said possession is claimed to be open, peaceful and to the knowledge of all concerned including the State, the owner of the suit land. It is further stated that the plaintiff has been in possession of the suit land since the year 1971 which has been reflected in the remark column of the Record of Right published in the year 1984. Thus, it is stated that the plaintiff has acquired the title by way of adverse possession. When some time prior to the suit, he was asked by the local Revenue Inspector to vacate the suit land, apprehending dispossession, he filed the suit for declaration of his right, title and interest and confirmation of possession over the suit land asserting his claim of acquisition of title by way of adverse possession upon extinguishment of the title of the State therein. 4. The defendants in the written statement while traversing the plaint averments have stated the land to have been recorded in the name of the State under Rakhita Khata and under Jungle Kisam. It is stated that such noting in the remark column of the Record of Right is without any basis and has been so created by maneuvering the field personnel’s during settlement operation in order to grab the suit land belonging to the State. 5. The trial court with the above rival case, framing six issues has finally answered the issues no. 5. The trial court with the above rival case, framing six issues has finally answered the issues no. 3 and 4 relating to the claim concerning the right, title and interest of the plaintiff over the suit land as well as limitation, taken together for decision against the plaintiff by holding that the plaintiff has no right, title and interest over the suit property so as to be given with the declaration to that effect. It has been held that he has not acquired the title by way of adverse possession as claimed. 6. The plaintiff thus being non-suited and denied with the grant of reliefs as prayed for had carried the first appeal under section 96 of the Code of Civil Procedure (hereinafter called as ‘the Code’). The lower appellate court again taking up the exercise of judging the sustainability of the decision of those two issues no. 3 and 4 as aforesaid, upon analysis of evidence at its end in the back drop of pleadings has arrived at the same finding as that of the trial court . Therefore, the decision of the trial court has remained undisturbed. The lower appellate court has finally held that the plaintiff has to be non-suited which has been rightly so done by the trial court. Thus now the concurrent findings of the courts below negating the claim of the plaintiff as regards right, title, interest and possession of the plaintiff over the suit land are being impeached in the second appeal under section 100 of the Code. 7. Mr. B.C. Panda, learned counsel for the appellant submits that the following substantial questions of law arise in this appeal for its admission. (i) Whether the finding rendered by the learned courts below, due to non-consideration of oral as well as documentary evidence; so far as commencement of possession of the plaintiff-appellant, suffers from the vice of perversity? (ii) Whether the learned courts below properly construed the effect of noting of possession of the plaintiff-appellant as available in the remark column of the Record of Right, Ext.1 as well as the Information Sheets under Ext. 2 and 3 issued by the Assistant Settlement Officer, Dhenkanal? (ii) Whether the learned courts below properly construed the effect of noting of possession of the plaintiff-appellant as available in the remark column of the Record of Right, Ext.1 as well as the Information Sheets under Ext. 2 and 3 issued by the Assistant Settlement Officer, Dhenkanal? (iii) Whether the judgment of the lower appellate court can be sustained in the absence of formulation of points for determination and discussion thereof regarding rival contentions of the parties in the light of the pleadings and evidence on record?. According to him, the overwhelming oral evidence as regards the time of commencement of possession and its continuance thereafter have not been properly considered although those clearly lead to the findings on the crucial issues in favour of the plaintiff. According to him for such non-consideration, the ultimate decision suffers from the vice of perversity. It is further submitted that the note of possession relating to the suit land in favour of the plaintiff in the Record of Right as well as in the information sheets supplied by the Assistant Settlement Officer have not been appreciated by the court below in their proper prospective and the evidentiary value attached to those documents having not been considered, the findings on issue nos. 3 and 4 are unsustainable. He lastly submits that the lower appellate court without having formulated the point for determination when has decided the appeal, the judgment and decree passed therein are vulnerable for noncompliance of the relevant provision as contained under order 41 of the Code. 8. Ms. S. Ratho, learned Additional Government Advocate being served with the copy of the memorandum of appeal submits that the concurrent findings rendered by the court below primarily concern with the factual aspects as regards the ingredients as mandated under law for establishing a claim of acquisition of title by way of adverse possession. According to her, there is absolutely no legal flaw with those findings as no such material has been shown in specific that any such evidence available on record either have not been taken into consideration and have been overlooked or have been erroneously viewed which if would have been so taken into consideration, the finding would have been otherwise. According to her, there is absolutely no legal flaw with those findings as no such material has been shown in specific that any such evidence available on record either have not been taken into consideration and have been overlooked or have been erroneously viewed which if would have been so taken into consideration, the finding would have been otherwise. Therefore, she urges that this Court even though takes a different view over the same, should be extremely loathe to consider that as the substantial question of law for the purpose of admission of this appeal. She also submits that the note of possession under Ext.1, the Record of Right itself is not enough to return a finding on acquisition of title by adverse possession when it may at best be the evidence relating to the possession of the person during that time. She also submits that the lower appellate court has gone for a detail examination as regards the sustainability of the findings recorded by the trial court on the crucial issues touching the claim of the plaintiff so as to decide whether the reliefs as prayed are grantable or not and therefore those have to be taken to be the points so formulated for determination. According to her, thus there arises no case for holding the judgment and decree passed by the lower appellate court as vulnerable. 9. The position of law is well settled that the classical requirements for establishment of the claim of acquisition of the title by adverse possession over the immovable property are ‘nec vi’, ‘nec clam’ and ‘nec precario’; the possession be adequate in continuity, in publicity and adverse to the owner. It is also the settled position that the parties asserting the claim over the immovable property by adverse possession has to plead very clearly and prove all those required aspects. It is not a pure question of law but is blended with facts. The well settled legal position also stands that mere long and continuous possession of the immovable property for any length of time be it may, does not ensure to the benefit of the possessor in establishing the claim of adverse possession over it. It is not a pure question of law but is blended with facts. The well settled legal position also stands that mere long and continuous possession of the immovable property for any length of time be it may, does not ensure to the benefit of the possessor in establishing the claim of adverse possession over it. The hostile animus is an essential ingredient to be pleaded and proved in showing that the possession is not only to the knowledge of the owner but also has been all along adverse to the interest, in denial of the title of the true owner over the property all through by remaining in possession by asserting title and ownership. 10. Issue nos. 3 and 4 are the important issues. The fate of the suit hangs upon the decision on those two issues. The trial court thus appears to have rightly taken those two together for decision since those are very much interlinked. By discussing the evidence at great length, the trial court has found the plaintiff to have failed to establish the ingredients required for the said claim to sustain. Even though the evidence with regard to long possession treating it to be finding support from the note of possession in the Record of Right at the relevant time is accepted for a moment, the same does not lead to the conclusion that the plaintiff has duly established all the required ingredients in so far as the claim of title over the suit land by way of adverse possession is concerned. The lower appellate court has sat over to examine the said evidence in the touch stone of the settled position of law for considering the sustainability of the findings on that score as recorded by the trial court. No such error is noticed in that entire exercise. One important aspect strikes to mind which cannot be lost sight of and that actually touches at the root which also needs little elaboration in the contextual back ground. The very case set up by the plaintiff is that on the fine morning of the auspicious day of Akshaya Trutiya in the year 1971, he came upon the suit land which of vast tract measuring six Acres and sixty Decimals and having taken possession of the same on that day, he began cultivating the same, making it so fit. The very case set up by the plaintiff is that on the fine morning of the auspicious day of Akshaya Trutiya in the year 1971, he came upon the suit land which of vast tract measuring six Acres and sixty Decimals and having taken possession of the same on that day, he began cultivating the same, making it so fit. This theory sounds like ‘Veni’, ‘Vedi’ and ‘Vici’, i.e. he came, he saw and he conquered. It cannot in reality be conceived for a moment. By projecting such a story, the plaintiff wants to take every one to have a journey to the wonder land where everything is possible every time at the desire and wish. The foundation for the case appears to be highly absurd which on its face value is unbelievable. The lower appellate court having re-examined the matter relating to the possession of the trial court on issue nos. 3 and 4 is seen to have taken those issues as the points for determination in the appeal. In view of all the aforesaid, this Court finds no such factual or legal flaw in the final decision of the courts below. The aforesaid discussion and reasons provide the answer that no such substantial question of law surfaces here meriting admission of the second appeal. 11. The appeal thus does not merit admission and is accordingly dismissed. No order as to cost.