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2017 DIGILAW 684 (ORI)

State of Orissa v. Rabinarayan Rout

2017-07-10

A.K.RATH

body2017
JUDGMENT : Dr.A.K.RATH, J. This is an appeal against the judgment and decree dated 16.12.1998 and 23.12.1998 respectively passed by the learned Additional Civil Judge (Sr.Division), Dhenkanal in Title Appeal No.26 of 1997/4 of 1998 reversing the judgment and decree dated 17.5.1997 and 28.6.1997 passed by the learned Additional Civil Judge (Jr.Division), Hindol in T.S.No.5 of 1992 2. The respondent as plaintiff instituted T.S.No.5 of 1992 in the court of the learned Additional Civil Judge (Jr.Division), Hindol for declaration of right, title and interest over the suit land impleading the appellants as defendants. Case of the plaintiff is that his father Dullava Paikra had planted mango trees over sabik plot no.246 holding no.15 measuring an area of Ac.3.90 dec. of mouza Purusottampur in the Ex-State of Hindol. In the remarks column of the Sabik R.O.R of 1911-12, his father’s name had been mentioned as “Phalavogi Right” i.e. right to enjoy fruits. After his father’s death, he inherited the suit properties. During hal settlement, the sabik plot was bifurcated into hal plot no.160/293 measuring an area Ac.1.10 dec. and assigned with holding no.38 and plot no.159 having an area of Ac.0.98 dec. and plot no.150 having an area Ac.1.72 dec. both of holding No.41. His possession was only recorded in respect of plot no.160/293, holding no.38. But then he was also in continuous possession of the land measuring an area of Ac.2.50 dec. appertaining to hal plot no.213/277, holding no.38. His possession over such land was recorded in hal R.O.R. since 1955. He is in possession of the suit land peacefully and continuously with the hostile animus to the defendants for more than thirty years and as such acquired title by way of adverse possession. It is further pleaded that he was a Government servant and could not take steps in the settlement operation. The defendant no.2 initiated Encroachment Case No.7 of 1986 against him and deleted his note of possession without affording an opportunity of hearing. When defendant no.1 directed to put the mango orchard to auction, he instituted the suit after issuing notice under Section 80 C.P.C to defendants. 3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit property in respect of khata no.38 was recorded as Abadijogya Anabadi. The land appertaining to khata no.41 was recorded in Rakhita khata of the Government. 3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit property in respect of khata no.38 was recorded as Abadijogya Anabadi. The land appertaining to khata no.41 was recorded in Rakhita khata of the Government. Since the plaintiff was not in possession of the suit land, note of possession was omitted pursuant to the order passed in Encroachment Case No.7 of 1986. 4. On the interse pleadings of the parties, the learned trial court framed as many as eight issues. To substantiate the case, the plaintiff had examined five witnesses and five documents had been exhibited on his behalf. No evidence was adduced on behalf of the defendants. The learned trial court held that the plaintiff has right, title and interest over ‘B’ schedule property and decreed the suit in part. Thereafter the plaintiff filed Title Appeal No.26 of 1997 before the learned District Judge, Dhenkanal, which was subsequently transferred to the learned Additional Civil Judge (Sr.Division), Dhenkanal and renumbered as Title Appeal No.26 of 1997/4 of 1998. The learned appellate court set aside the judgment and decree of the learned trial court in respect of finding of plot no.160/293 measuring an area Ac.1.10 dec. and decreed the suit. 5. The appeal was admitted on the following substantial question of law. “Whether the possession of the plaintiff which is to enjoy the fruits only can be termed adverse against the State even though it is accepted that the plaintiff had planted trees, at one point of time, when enjoyment of fruits can only be by planting of trees ?” 6. Heard Mr.Swayumbhu Mishra, learned Additional Standing Counsel for the State-appellant. None appeared for the respondent. 7. Mr.Mishra, learned Additional Standing Counsel for the appellant submitted that State is the paramount owner of the suit schedule land. The plaintiff was not in possession of the suit land. There is no foundational fact with regard to adverse possession. He further submitted that at best the right of a person recorded as “Phalabhogi” is in the nature of licence to collect and enjoy the fruits of the trees, which is no way adverse to the true owner of the land. He relied on a decision of this Court in the case of Dibakar Pattanaik (since dead) after him Madhab Ch. Pattnaik and others Vrs. He relied on a decision of this Court in the case of Dibakar Pattanaik (since dead) after him Madhab Ch. Pattnaik and others Vrs. State of Orissa and another, 111 (2011) CLT 248. 8. In Dibakar Pattnaike (supra), the Ex-Ruler granted lease of mango tree standing over the suit land in favour of the plaintiff. This Court held that lease of the mango tree standing on the suit land in favour of the plaintiff necessarily implies grant of permission of the Ex-Ruler to possess the suit land for the limited purpose of preservation, protection and enjoyment of the tree and the fruits thereof. Such possession and user of the land is nothing but a licence granted for going over the land for collecting fruits of the tree and may include raising fences on or around the land so as to prevent outsiders from damaging the tree or taking away the fruits. 9. Admittedly, the suit schedule land belongs to the State of Orissa. The record of right was published in the name of State. The kissam of the land is Abadijogya Anabadi. In the remarks column, name of Dullab Paikaray had been mentioned with a remark that “phalavogi”. 10. The date of entry into the suit land has not been mentioned. As held by this Court in Dibakar Pattnaik (supra) that such nature of possession of the land, which is implicitly permitted for enjoyment of the fruits of the tree, is permissive and not adverse to the title of the true owner of the land. The plaintiff therefore cannot be said to have acquired title to the suit land by way of adverse possession. 11. In the wake of the aforesaid, the plaintiff’s suit must fail. The appeal is allowed, but in the circumstances of the case, the parties are to bear their own costs throughout.