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2017 DIGILAW 685 (ORI)

Amulya Charan Das v. State of Orissa

2017-07-10

A.K.RATH

body2017
JUDGMENT : Dr.A.K.RATH, J. This is a plaintiff’s appeal against an affirming judgment in a suit for declaration of title and permanent injunction. 2. Case of the plaintiff is that his forefathers were in cultivating possession of the suit land. On 14.12.1952, the then R.D.O. observed that his father was in possession of the suit land and recommended for assignment in preference to others. In the year 1971, an encroachment case was initiated against his father. It was held that the land could not be settled since the same was recorded as goacher. As the encroachment of the plaintiff was objectionable, the order of eviction was passed. The same was confirmed in appeal as well as revision. It is pleaded that the land was converted into cultivable land. Since the time of his grandfather, the land was in his khas possession. The proceeding initiated under the Orissa Prevention of Land Encroachment Act, 1972 (hereinafter referred to as “the O.P.L.E.Act”) is not binding. The suit land is in his possession since the time of his grandfather prior to 1944 and as such the plaintiff perfected title by way of adverse possession. 3. The defendants filed written statement denying the assertions made in the plaint. According to the defendants, the grandfather of the plaintiff was never in cultivating possession of the suit land. Encroachment case was initiated against the plaintiff. He was evicted from the suit land on 27.1.1976 and the defendants have taken possession of the suit land. Encroachment case subsequent thereto is illegal. The suit land is recorded as goacher. The Tahasildar is competent to initiate proceeding under the O.P.L.E.Act. The order of eviction passed by the Tahasildar was unsuccessfully challenged by the plaintiff in appeal as well as revision. The same was confirmed. 4. On the inter se pleadings of the parties, the learned trial court framed four issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf three documents had been exhibited. No evidence was adduced on behalf of the defendants. The suit was dismissed. The plaintiff unsuccessfully challenged judgment and decree of the learned trial court before the learned Subordinate Judge, Chatrapur in Title Appeal No.1 of 1987, which was eventually dismissed. 5. Heard Mr.Mahana on behalf of Mr.D.Mohanta, learned Advocate for the appellant and Ms.S.Mishra, learned Additional Standing Counsel for the respondents. 6. The suit was dismissed. The plaintiff unsuccessfully challenged judgment and decree of the learned trial court before the learned Subordinate Judge, Chatrapur in Title Appeal No.1 of 1987, which was eventually dismissed. 5. Heard Mr.Mahana on behalf of Mr.D.Mohanta, learned Advocate for the appellant and Ms.S.Mishra, learned Additional Standing Counsel for the respondents. 6. Mr.Mahana, learned Advocate for the appellant submitted that the grandfather of the plaintiff was in possession of the suit land. After his death, father of the plaintiff and thereafter the plaintiff is in possession of the suit land peacefully continuously with hostile animus to the defendants for more than thirty years. Thus, he has acquired title by way of adverse possession. The courts below have committed an error in negativing the plea of the plaintiff. 7. Per contra, Ms.Mishra, learned Additional Standing Counsel submitted that adverse possession is a mixed question of fact and law. Both the courts below have concurrently held that the plaintiff has not perfected title by way of adverse possession. 8. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. 9. 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. 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. 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) 10. On a cursory perusal of the plaint filed by Mr.Mohanta, learned Advocate in the court below, it is evident that the date of entry into the suit land has not been mentioned. The suit land has been recorded as goacher in the name of the Government. On a threadbare analysis of the evidence on record and pleadings, both oral and documentary, both the courts below have negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. 11. In the result, the appeal is dismissed, since the same does not involve any substantial questions of law.