Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 883 (ORI)

Narasingha Satapathy v. State of Orissa

2017-08-16

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a reversing judgment. 2. The case of the plaintiff is that his father Rajib Satapathy purchased an area Ac.4.049 dec. of land by means of four registered sale deeds. He was in possession of area Ac.4.810 dec. His father was in peaceful and continuous possession of the suit property. He used to pay the cist to the Estate. After death of his father, he became the owner of the suit schedule property and possessed the same without any interruption by any person. He used to pay the cist to the Government. While the matter stood thus, the settlement operation in the area, where the land falls started. The settlement authorities recorded the suit plot as Gramya Jungle and Nala in sarbasadharana khata and described the same as Government land. The erroneous entry does affect his right, title and interest over the land. He is in possession of the land as a raiyat. The rest of the land, i.e., measuring area Ac.3.120 dec. had been recorded in his name in the record of right. While the matter stood thus, the defendants had taken steps to evict him from the land. With this factual scenario, he instituted the suit for declaration of right, title and interest and correction of suit plots and permanent injunction. 3. The defendants filed written statement denying the assertions made in the plaint. It is pleaded that the plaintiff had filed an Objection Case No.5300 of 1990 before the Assistant Settlement Officer. The same was rejected. No appeal was filed. The plaintiff had not possessed the suit land. He had not pay cist to the Government. He had not acquired title over the same. 4. On the interse pleadings of the parties, learned trial court framed four issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf nine documents had been exhibited. No evidence was adduced by the defendants. 5. Learned trial court relying on the rent schedule Ext.8 and the report of the R.I., Ext.9 in O.E.A. Case No.70/94 came to a finding that the plaintiff had title over the suit land and decreed the suit. Felt aggrieved, the defendants filed T.A. No.3 of 2001 in the court of the learned Civil Judge (Sr. 5. Learned trial court relying on the rent schedule Ext.8 and the report of the R.I., Ext.9 in O.E.A. Case No.70/94 came to a finding that the plaintiff had title over the suit land and decreed the suit. Felt aggrieved, the defendants filed T.A. No.3 of 2001 in the court of the learned Civil Judge (Sr. Divn.), Chhatrapur which was subsequently transferred to the court of the learned Additional District Judge, Fast Track Court, Chhatrapur and renumbered as T.A. No.63 of 2003. A contention was made by the counsel for the State that the learned trial court committed a patent error in decreeing the suit on the basis of adverse possession. The defendants had no opportunity to adduce evidence controverting the plea of adverse possession. The plaintiff sought for declaration of title by virtue of the sale deeds 1 to 4 executed in favour of his father. Thus declaration of title by way of adverse possession caused prejudice to the defendants. The same was over-ruled by the learned appellate court relying on the decision of the Patna High Court in the case of Govind Yadav and others vs. Deoki Devi and others, AIR 1980 Pat 113 and this Court in the case of Dandapani Naik vs. State of Orissa represented by the Collector, Puri and another, 1986 (2) OLR 391. Learned appellate court held that on a plain reading of the entire plaint, it clear that the plaintiff had advanced the case basing on his title acquired through the sale deeds and also his long continuous possession since the date of purchase of the suit land and other lands under the sale deeds Ext.1 to 4 and in the prayer portion, the plaintiff had specifically pleaded for declaration of his title by way of adverse possession. Thus learned trial court had not committed any error of law in deciding the suit on the basis of adverse possession. Thereafter the learned appellate court proceeded with the matter and held that the plaintiff had not possessed the land for more than 30 years and negatived the plea of adverse possession. The plaintiff has not perfected title by way of adverse possession. Held so, it allowed the appeal. 6. The appeal was admitted on the following substantial question of law. Thereafter the learned appellate court proceeded with the matter and held that the plaintiff had not possessed the land for more than 30 years and negatived the plea of adverse possession. The plaintiff has not perfected title by way of adverse possession. Held so, it allowed the appeal. 6. The appeal was admitted on the following substantial question of law. “(i) Whether the reversal judgment of the lower appellate court suffers from non-consideration of admitted position that the suit inam land vested in the year 1964 and not in the year 1974 and whether the finding on the question of adverse possession is liable to be set aside ? (ii) Whether, subsequent recording of the suit land as Rakhita by settlement authority extinguishes the existing tenancy right created in favour of plaintiff-appellant after vesting ? (iii) Whether the reversal judgment of the lower appellate court suffers from non-consideration of admissible evidence on record like Exts.1 to 9 ?” 7. Heard Mr. B.N. Muduli, learned counsel for the appellant and Mr. Swyambhu Mishra, learned Additional Standing Counsel for the respondents. 8. Mr. Muduli, learned counsel for the appellant submitted that the finding of the lower appellate court is not based on proper appreciation of the matter. As per Act 17 of 1954, inam land included in the definition of estate of OEA Act. Inam estate was abolished on 01.04.54. The Tahasildar, Purushottampur in course of hearing of Bebandobasta Case No.70/94 in respect of Hal Khata No.614 found that Ac.4.80 dec. land was settled in the name of the father of plaintiff in the year 1957. Thus it cannot be said that on 18.03.1974 inam land vested. Rest land of jamanbandi no.294 was included in Government khata no.688 during preparation of hal ROR. The father of the plaintiff was in possession of the suit land since 1942 on payment of rent. The finding of the appellate court that since OEA Collector refused to settle the suit land on 01.11.95 and the suit filed in 1998, the claim for title must fail is perverse. The suit land was settled in the name of the father of plaintiff since 1957 and rent was collected from him till publication of hal ROR. 9. Per contra, Mr. Mishra, learned Additional Standing Counsel for the respondents submitted that adverse possession is a mixed question of fact and law. The suit land was settled in the name of the father of plaintiff since 1957 and rent was collected from him till publication of hal ROR. 9. Per contra, Mr. Mishra, learned Additional Standing Counsel for the respondents submitted that adverse possession is a mixed question of fact and law. There is no pleading or evidence on record with regard to the same. 10. The suit was initially filed for declaration that the hal plots under khata no.688 pertaining to hal plot no.39, 54, 55 and 56 corresponding to sabik survey no.244/12, 245/10, 242 and 242 requires correction and permanent injunction. Subsequently the same was amended. But then, no issue with regard to adverse possession was framed. The plaintiff adduced evidence. The question does arise as to whether both the courts below are justified in deciding the suit on the available material on record. 11. In Govind Yadav and others (supra), the Patna High Court held that where the relevant facts for raising an issue of title by adverse possession are raised in the pleadings by a party and the facts were dealt with by the trial court and the question of adverse possession was implicit in the case made out by the party, the party can succeed on title by adverse possession even though it is not specifically pleaded at the trial stage and no issue had been raised on it and the plea is raised at first appellate stage. Taking a cue from the same, this Court in the case of Dandapani Naik (supra) held that law is, therefore, well-settled that, if on construction of the pleadings of the parties a case of adverse possession has been made out and such a plea is not only implicit but also the parties are fully conscious of such a plea, even though the expression “adverse possession” has not been used and a specific issue has not been struck, the final court of appeal, on the basis of findings recorded by the courts below, can ultimately decide the question of adverse possession. 12. The next question crops up as to whether there is any pleading and evidence with regard to adverse possession. 13. In Karnataka Board of Wakf v. Govt. 12. The next question crops up as to whether there is any pleading and evidence with regard to adverse possession. 13. In Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779 at para 11, 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. Nonuse 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 14. The instant appeal may be examined on the anvil of the decisions cited supra. The date of entry into the suit land has not been mentioned. The element on hostile animus is absent in the pleading. On an anatomy of the pleadings and evidence, learned appellate court negatived the plea of adverse possession. The finding of the learned appellate court cannot be said to be perverse or illegal. The substantial questions of law are answered accordingly. 15. The element on hostile animus is absent in the pleading. On an anatomy of the pleadings and evidence, learned appellate court negatived the plea of adverse possession. The finding of the learned appellate court cannot be said to be perverse or illegal. The substantial questions of law are answered accordingly. 15. In the wake of aforesaid, the appeal is dismissed. No costs.