Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 91 (ORI)

State of Orissa v. Abu Bakkar Habib

2017-01-20

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. Defendants are the appellants against a reversing judgment. 2. The respondent as plaintiff instituted the suit for declaration of right, title and interest and permanent injunction impleading the appellants as defendants. The case of the plaintiff is that his father late Habib Abdul Latiff purchased the suit plot under a Kararnama dated 9.6.79 for a consideration of Rs.3500/-from one Adarmani Mohanty. Adarmani delivered possession of the land to his father. Since the date of purchase his father and after death of his father, he is in possession of the land openly, peacefully, continuously. It is further stated that Adarmani occupied the suit plot as trespasser in the year 1958 and constructed 5 numbers of katcha rooms over it. After sale, he had demolished the katcha house and constructed a pucca house over the suit plot and doing his business on it. While the matter stood thus, Encroachment Case No.805/70 was initiated. Thereafter in the year 1979-80, the Tahasildar, Dharmagarh initiated Encroachment Case No.210/79-80 against the father of the plaintiff. His father died in November, 1979, but the case proceeded against a dead person. The Tahasildar, Dharmagarh passed order of eviction and forfeited the articles therein to the State. In spite of the said proceeding, he continued to possess the suit plot. Though the suit plot has been recorded as Anabadi in the name of the Government in the ROR but the original encroacher Adarmani possessed the same till she delivered possession of the same to the father of the plaintiff in the year 1979 under a Kararnama. Thus, he has acquired title by way of adverse possession. The land is required to be settled in his name since he has acquired title by way of adverse possession. He is ready to pay nazrana for settlement of land in his name. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The specific case of the defendants is that the suit land has been recorded in the name of the Government as Anababadi padia under Nazul Khatiam 482 in the last settlement. The same is the exclusive property of the Government. Adarmani had no saleable right over the land and as such the alleged transaction is void. Adarmani was in unauthorised occupation of the suit land in or about the year 1969. The same is the exclusive property of the Government. Adarmani had no saleable right over the land and as such the alleged transaction is void. Adarmani was in unauthorised occupation of the suit land in or about the year 1969. When this fact came into the notice of the Tahasildar, Encroachment Case No.805/70 was initiated against her. Necessary fine and penalty was imposed on her and the order of eviction was passed. The plaintiff was substituted in the encroachment case. The suit land has been reserved for public purpose in the master plan of Junagarh Town. Further the Encroachment Case No.200/79 was initiated against the plaintiff. The possession of the suit land by Adarmani, father of the plaintiff and plaintiff is illegal and unauthorised. 4. On the interse pleadings of the parties, learned trial court struck seven issues. The same are quoted hereunder. “(1) Whether the suit land is government land ? (2) Whether Adarmani Mohanty was in possession of the suit lands since 1958 and acquired title ? (3) Whether the transfer of the suit land by Adarmani in favour of the plaintiff’s father is legal ? (4) Whether the plaintiff or his father has acquired title by adverse possession ? (5) Is there any cause of action ? (6) Is there suit maintainable ? (7) To what relief the plaintiff is entitled ?” 5. To substantiate the case, the plaintiff had examined two witnesses and on his behalf three documents had been exhibited. On behalf of the defendants, one document had been exhibited. 6. Learned trial court came to hold that the suit land is a Government land and answered issue no.1 in affirmative. With regard to the issue nos.2 and 3, it held that Adarmani was not in possession of the suit land since 1958. In Encroachment Case No. 805 of 1970 initiated against Adarmani, she paid penalty. Adarmani was not in continuous possession of the suit land. She had no semblance right, title and interest over the suit land and as such the alienation is void. With regard to issue no.4, learned trial court held that the plaintiff cannot acquire any title over the suit land by way of adverse possession. Further the plaintiff intends to pay nazrana and wanted to settle the land in his name. She had no semblance right, title and interest over the suit land and as such the alienation is void. With regard to issue no.4, learned trial court held that the plaintiff cannot acquire any title over the suit land by way of adverse possession. Further the plaintiff intends to pay nazrana and wanted to settle the land in his name. Settlement of land in favour of the plaintiff has to be decided by the defendants according to Orissa Prevention of Land Encroachment Act. Thus the court cannot pass any order directing the defendants to settle the land in favour of the plaintiff. Held so, learned trial court dismissed the suit. 7. Aggrieved by and dissatisfied with the judgment and decree of the learned trial court, the plaintiff filed Title Appeal No.8 of 1994 before the learned District Judge, Kalahandi-Nuapada at Bhawanipatna. Learned appellate court came to hold that the suit plot is a Government land and affirmed the finding of the learned trial court. It further held that Adarmani was a trespasser to the suit land. Though order of eviction was passed, but then the encroacher had not been evicted. Learned appellate court tacked the possession of Adarmani, father of the plaintiff as well as plaintiff and came to hold that the plaintiff is in possession of the suit land peacefully, continuously and to the knowledge of the defendants for more than thirty years and as such perfected title by way of adverse possession. Held so, learned appellate court allowed the appeal. 8. The second appeal was admitted by a Bench of this Court on 04.07.2016 on the following substantial question of law. “Whether the lower appellate court is right in upsetting finding of the trial court by going to hold that the plaintiff has perfected title over the suit land by adverse possession having got the possession of the property from his father who was in possession on the strength of his purchase dated 06.09.1979 from his vendor namely, Adarmani Mohanty who was in possession since the year 1958 ?” 9. Heard Miss Samapika Mishra, learned Additional Standing Counsel for the appellants. None appears for the respondent in spite of valid service of notice. 10. Miss Mishra, learned Addl. Standing Counsel for the State, submitted that the suit schedule land is Government land and recorded as Anabadi in the last settlement. Heard Miss Samapika Mishra, learned Additional Standing Counsel for the appellants. None appears for the respondent in spite of valid service of notice. 10. Miss Mishra, learned Addl. Standing Counsel for the State, submitted that the suit schedule land is Government land and recorded as Anabadi in the last settlement. The State is the paramount owner of the land. Adarmani was an encroacher of the suit schedule land. She had no right to alienate the suit schedule land in favour of the father of the plaintiff. The father of the plaintiff was a trespasser. Since Adarmani had unauthorisedly occupied the suit land, Encroachment Case No.805/70 was initiated against her. The Tahasildar imposed fine and penalty and passed order of eviction. She paid the penalty. In the said case, the father of the plaintiff was substituted, since he was an encroacher. Again Encroachment Case No.210/79-80 was initiated against the plaintiff. In view of the same, learned appellate court has committed a manifest error in tacking the possession of two trespassers. Further, there is no material on record that the plaintiff was in possession of the suit schedule land for more than the statutory period. Mere possession of the suit land at any length of time is not enough to give rise to a case of acquisition of title by way of adverse possession. 11. In Annasaheb Bapusaheb Patil and others vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc., AIR 1995 SC 895 , the apex Court held that adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, 1963, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. It was further held that where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. 12. Admittedly, the proceeding under the OPLE Act was initiated against Adarmani and penalty was imposed. She paid the same. Thus, she admits the title of the State. Her possession was not hostile to the real owner and amount to a denial of her title to the property claimed. Adarmani was an encroacher. An encroacher of a Government property has no right to alienate the same. At best the plaintiff is a trespasser on the suit property. Thus this is a case of one trespasser trespassing against another trespasser. 13. In Gurbinder Singh and another vs. Lal Singh and another, AIR 1965 SC 1553 , the apex Court held thus: “xxx xxx xxx Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked on to one another. As pointed out by Varadachariar J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449 : "Further the doctrine of independent trespassers will come in only when the second man trespasses upon the possession of the first or the first man abandons possession." Where it applies the principle laid down in Agency Co's case (1888) 13 AC 793, would apply and preclude the tacking of possession of successive trespassers. The following observations of Lord Macnaghten in that case are pertinent and run thus: "They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lordships' opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute 'continues to run' because there is a person in possession in whose favour it is running." This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S.2(4) of the Limitation Act thus: " 'defendant' includes any person from or through whom a defendant derives his liability to be sued". No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession.” 14. In view of the authoritative pronouncement of the apex Court in the case of Gurbinder Singh and another (supra), the leaned appellate court fell into patent error of law in tacking the possession of two encroachers in holding that the plaintiff has perfected title by way of adverse possession. 15. In the wake of aforesaid, the judgment and decree dated 15.11.1997 and 29.11.1997 respectively passed by learned District Judge, Kalahandi-Nuapada, Bhawanipatna in T.A. No.8 of 1994 is set aside. The appeal is allowed. No costs.