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2017 DIGILAW 888 (ORI)

State of Orissa v. Sukuru Polai

2017-08-17

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is a defendants’ appeal against a reversing judgment. 2. The respondents as plaintiffs instituted T.S. No.55 of 1986 in the court of the learned Munsif, Berhampur for declaration of right, title and interest and possession impleading the appellants as defendants. The case of the plaintiffs is that the land measuring area Ac.0.47 cents in Old S.No.1/1A of village Berhampur originally recorded as village site. The same adjoins to the compound of the deity Sri Sri Kasi Viswanath Mohaprabhu. The land was full of ditches. In the settlement operation, the same had been recorded in the Rakhita khata of the Government. The plaintiffs spent an amount of Rs.500/-, filled up the ditches, made it plain and used the same as their threshing floor. Since 1942 till date, they are in possession of the same. In the last settlement operation, the lands were wrongly recorded in favour of the deity Sri Sri Kasi Viswanath Mohaprabhu. Thereafter, the plaintiffs filed objection before the Tahasildar, Berhampur, defendant no.1, requesting him to make physical enquiry about their long possession and correct the record of right. The defendant no.1 by letter dated 18.2.1980 directed the concerned R.I. to enquire and report. The R.I. made an enquiry and submitted a report on 26.2.1980 stating that the plaintiffs were in possession since 30 years. Thereafter the plaintiffs applied for mutation of the said plots, but no effect. They filed R.P. Case No.233/80 before the Commissioner, Land Records and Settlement for correction of ROR. By order dated 16.2.1983, the Commissioner directed that the suit plot shall be taken from out of khata no.242 and be recorded in Rakhita khata of Government. Accordingly, the suit plots had been recorded in Rakhita khata. It is further pleaded that they were in possession for more than 30 years by the time the order was passed by the Commissioner and as such perfected title by way of adverse possession. 3. The defendants filed a joint written statement denying the assertions made in the plaint. The specific case of the defendants is that the suit land had been recorded in the Rakhita khata as per the order of the Commissioner of Land Records and Settlement in R.P. Case No.233 of 1980. The plaintiffs were not in possession of the suit land. No notice under Sec.80 C.P.C. was issued. 4. The specific case of the defendants is that the suit land had been recorded in the Rakhita khata as per the order of the Commissioner of Land Records and Settlement in R.P. Case No.233 of 1980. The plaintiffs were not in possession of the suit land. No notice under Sec.80 C.P.C. was issued. 4. On the interse pleadings of the parties, learned trial court struck as many as five issues. Both parties led evidence, oral and documentary, to substantiate their cases. On an analysis of the evidence on record and pleadings, learned trial court came to hold that the entry of the plaintiffs into the suit land was surreptitious and without the knowledge of the defendants. The R.I. had not examined any witness to know who planted the trees. The R.I. is not an expert to give the age of the trees as more than 30 years. He was deputed only to furnish a report with regard to possession of the suit land. He had not verified any document of the plaintiffs. The conclusion reached by the R.I. is without any basis. The report does not reveal the whole truth and accordingly rejected the report. It negatived the plea of the plaintiffs for adverse possession. The suit was dismissed. Felt aggrieved, the plaintiffs filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 2nd Additional District Judge, Berhampur and renumbered as T.A. No.119 of 1988. Learned appellate court laid much credence to the report of the R.I. and held that the same is a document prepared by a Government servant in due discharge of his official duties and as such due credibility and presumption of correctness ought to be attached to the same. The defendants had not proved by any convincing evidence that the report was incorrect. The defendants had failed to prove that they are in possession of the suit land. It further held that the plaintiffs had been in possession of the suit properties continuously, openly and without any interruption to the knowledge of all concerned. Held so, it set aside the judgment and decree and decreed the suit. 5. The second appeal was admitted on 14.3.1997 on the following substantial question of law. “Whether there was any acceptable evidence to establish the claim of adverse possession as put forth by the plaintiffs-respondents ?” 6. Held so, it set aside the judgment and decree and decreed the suit. 5. The second appeal was admitted on 14.3.1997 on the following substantial question of law. “Whether there was any acceptable evidence to establish the claim of adverse possession as put forth by the plaintiffs-respondents ?” 6. Heard learned Additional Standing Counsel for the appellants. None appears for the respondents. 7. Learned Additional Standing Counsel for the appellants submits that there is no pleading or evidence on record that the plaintiffs were in possession of the land peacefully, continuously and to the hostile animus of the defendants for more than the statutory period. Learned appellate court committed a manifest illegality in allowing the report of the R.I., Ext.1 and declared the title of the plaintiffs without any evidence on record. 8. On a cursory perusal of paragraph 3 of the plaint, it is evident that the suit property has been recorded in the name of Sri Sri Kasi Viswanath Mohaprabhu. The deity is a perpetual minor. In the absence of the deity, the suit is not maintainable. The courts below did not delve into the same, but proceed to decide the suit on merit. 9. Reliance placed on the report of the R.I. by the learned appellate court is totally misplaced. The R.I. exceeded its jurisdiction and submitted the report without verifying any document. He opined that the trees standing on the suit land had been planted by the plaintiffs and the age of the trees seems more than 30 years. The word “seems” imply that the report was based on surmises and conjectures. He has no expertise to assess the age of the trees. 10. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law. 11. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 PC 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that “the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor”. 12. 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. 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) 13. On the anvil of the decisions cited supra, the instant appeal may be examined. There is no pleading that the plaintiffs are in possession of the land peacefully, continuously and to the hostile animus of the defendants. The date of entry into the suit land has not been mentioned. On the anvil of the decisions cited supra, the instant appeal may be examined. There is no pleading that the plaintiffs are in possession of the land peacefully, continuously and to the hostile animus of the defendants. 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 have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 14. In paragraph 2 of the plaint, it is averred that in or about the year 1942, the plaintiffs spent an amount of Rs.500/-. They filled up the ditches, made it plain and used as their threshing floor. The suit was instituted in the year 1986. Plaintiff no.5 was 40 years at the time of institution of the suit. Thus, he was born in the year 1946. Similarly, plaintiff nos.6 and 7 were 45 years each. They were born in the year 1941. If assertion of the plaintiffs is accepted, then plaintiff no.5 was in possession of the suit land 4 years prior to his birth and plaintiff nos.6 and 7 one year after their birth. Thus the plea put forth by the plaintiffs that they have acquired title by way of adverse possession is untenable. As held above, mere possession howsoever long is not suffice to hold that the plaintiffs are perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 15. Resultantly, the plaintiffs’ suit must fail. The appeal is allowed, but in the circumstances of the case, parties shall bear their own costs throughout.