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2017 DIGILAW 882 (ORI)

Santoshi Korad v. State of Orissa

2017-08-16

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of right, title and interest and for declaration of the assignment of two acres of land out of suit property in favour of defendant no.3 is illegal. 2. Case of the plaintiff is that her husband was in possession of an area of Ac.5.22 cents appertaining to Khata No.334, Plot No.1928 of Mouza-Chheligada about 35 years ago. After him, she is in possession of the same. The suit plot has been recorded as “Abadyayoga Anabadi” in the ROR. The Tahasildar, R. Udayagiri, defendant no.2, initiated L.C Case No.44 of 1980 against her. She was in occupation of the land. She prayed for assignment of the land in her favour. The R.I was directed to ascertain as to whether she was a landless person. The case was converted to Encroachment Case No.528 of 1980. The R.I submitted the report stating therein that the husband of the plaintiff had only two acres of land. Accordingly, defendant no.2 directed to assign two acres of land out of the said plot in her favour. Thereafter two acres of land was assigned to her. The ROR was corrected following due procedure. It is further pleaded that she is in possession and enjoyment of the remaining Ac.3.22 cents of land for more than 30 years. While the matter stood thus, one Budhia Paiko claimed to be ‘Savara’ by caste initiated RMC No.40 of 1978 against her husband alleging that his father’s elder brother sold the suit plot to her husband and prayed for restoration of the land. Her husband filed Regulation Appeal No.3 of 1979 before the A.D.M. The appellate authority allowed the appeal and directed the Special Officer, Parlakhemundi for further enquiry to find out as to who was the original owner of the suit plot. After remand, the Special Officer directed Budhia to approach defendant no.2, since two acres of land had already assigned in favour of the plaintiff. Budhia filed a petition before defendant no.2. Thereafter, defendant no.3 appeared before defendant no.2 and asserted that he was earlier assigned two acres of land in L.C Case No.40 of 1981-82 out of the said Ac.5.22 cents. Defendant no.2 demarcated the land. The plaintiff came to know about the assignment of two acres of land in favour of defendant no.3. Budhia filed a petition before defendant no.2. Thereafter, defendant no.3 appeared before defendant no.2 and asserted that he was earlier assigned two acres of land in L.C Case No.40 of 1981-82 out of the said Ac.5.22 cents. Defendant no.2 demarcated the land. The plaintiff came to know about the assignment of two acres of land in favour of defendant no.3. There was no publication of notice inviting objection before assignment of the land in favour of defendant no.3. Defendant no.3 is not in possession and enjoyment of any portion of plot of Ac.5.22 cents. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra. 3. Defendant nos.1 and 2 entered appearance and filed a written statement. It is pleaded that the suit land had been recorded as “Abadyayoga Anabadi” in the settlement operation. Neither the plaintiff nor her husband was in possession and enjoyment of the suit schedule land. The R.I submitted the report on 24.3.1980 stating that the plaintiff was in unauthorized possession of the suit land. L.E Case No.528 of 1979-80 was initiated against the plaintiff under the Orissa Land Encroachment Act. On 10.4.1980 the plaintiff appeared before defendant no.2 and prayed to settle the land in her favour. On the prayer of the plaintiff encroachment proceeding was converted to Lease Case No.44 of 1980-81. During enquiry it was revealed that the plaintiff had suppressed the fact that her husband was having two acres of land in Dumba village covered under Khata No.40, Plot No.1/477. In view of the same, two acres of land out of entire land was settled in her favour and possession was delivered. Defendant nos.1 and 2 categorically denied that the plaintiff is in possession and enjoyment of the entire suit property for more than 30 years. In the settlement operation, the plaintiff had never made any claim. 4. Defendant no.3 was set ex parte. Defendant no.4 filed a written statement denying the assertions made in the plaint. According to him, he had purchased Ac.3.22 cents out of Ac.5.22 cents of the suit property from one Chaturbhuja Beheradalei, original owner, by means of a registered sale deed of the year 1975. The plaintiff had been assigned two acres of land, since she was a landless person. During settlement operation, the land had been recorded as “Abadyayoga Anabadi” without any proper enquiry. 5. The plaintiff had been assigned two acres of land, since she was a landless person. During settlement operation, the land had been recorded as “Abadyayoga Anabadi” without any proper enquiry. 5. Stemming on the pleadings of the parties, learned trial court struck nine issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. Learned trial court came to hold that the suit property is a Government land recorded as “Abadyayoga Anabadi”. Since the plaintiff was in unauthorised occupation of the suit land, an encroachment case was initiated against her, which was later converted to a lease case. Two acres of land had been allotted to her on lease. The evidence adduced by defendant nos.1 and 2 clearly disproves the plaintiff’s claim that she had been in continuous possession over the suit land since 35 years till the date of filing of the suit. The plaintiff had not been able to extract anything in the cross-examination of D.W.1 to discredit any part of the evidence. On the contrary, defendant nos.1 and 2 had established by cogent and convincing evidence that the suit land is a Government land and the same was not in continuous possession of the plaintiff for more than 30 years. That apart every possession in law is not an adverse possession. Process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner which stretched over the prescribed period results into extinguishing of the latter’s title. Held so it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Gajapati at Parlakhemundi in RFA No.23 of 2005, which was eventually dismissed. 6. Heard Mr. Prasanna Kumar Mishra, learned counsel for the appellant and Ms. Samapika Mishra, learned Addl. Standing Counsel for the State. 7. Mr. Mishra, learned counsel for the appellant, submitted that the husband of the plaintiff was in possession of the suit land. After death, the plaintiff is in possession of the suit land openly, peacefully and with hostile animus of the defendants for more than the statutory period. In a proceeding under the Orissa Land Encroachment Act, two acres of land was settled in favour of the plaintiff, since she was a landless person. After death, the plaintiff is in possession of the suit land openly, peacefully and with hostile animus of the defendants for more than the statutory period. In a proceeding under the Orissa Land Encroachment Act, two acres of land was settled in favour of the plaintiff, since she was a landless person. But then, the plaintiff is in possession of the remaining portion of land and as such, perfected title by way of adverse possession. The courts below have committed manifest illegality and impropriety in rejecting the suit. 8. Per contra Ms. Mishra, learned Addl. Standing Counsel for the State, submitted that the plaintiff was in illegal possession of land for which a proceeding under the Orissa Land Encroachment Act was initiated. The plaintiff made an application to settle the land in her favour. On enquiry it was revealed that the husband of the plaintiff was having two acres of land. Defendant no.2 taking into consideration the same settled two acres of land in favour of the plaintiff on the ground that the plaintiff was a landless person. The plaintiff is not in possession of the suit schedule land. The date of entry into the suit schedule land has not been mentioned. 9. In Karnataka Board of Wakf v. Govt. of India (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 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. There is no pleading that the plaintiff is in possession of the suit land for more than 30 years peacefully, continuously and with hostile animus to the defendants 1 and 2. The date of entry into the suit land has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs had 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 below, on a threadbare analysis of the evidence as well as pleadings, negatived the plea of adverse possession. There is no perversity or illegality in the judgments of the courts below. 11. Resultantly the appeal fails and the same is dismissed, since the same does not involve any substantial question of law.