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2017 DIGILAW 92 (ORI)

Ramesh Chandra Satpathy v. State of Orissa

2017-01-20

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. The plaintiff is the appellant against a confirming judgment. 2. The plaintiff instituted Title Suit No.120 of 1985 in the court of the learned Munsif, Berhampur for declaration of right, title, interest and possession over the suit schedule land and for a further declaration that L.E.C.No.65 of 1984 is without jurisdiction. The case of the plaintiff is that the suit property is a house situated over the Gramakantha Promboka land. His father had constructed the house over the suit land. The same is in his occupation since 40 years. After death of his father, he is in possession of the house. He is in peaceful and continuous possession of the property and, as such, perfected title by way of adverse possession. While the matter stood thus, the defendant no.2 initiated several proceedings under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as “O.P.L.E.Act”), being L.E.C.No.128/71, L.E.C.No.433/73, L.E.C.No.511/73 and L.E.C.No.22/77 for encroachment of the suit land. All the cases were dropped. The defendant no.2 directed settlement of the suit land in favour of the father of the plaintiff on 26.6.1978. Further, the defendants have settled the land in favour of all other encroachers, who were similarly circumstanced. Thus, he is entitled for settlement of the land. The defendants having found possession of his father unobjectionable directed settlement of the land. While the matter stood thus, the defendant no.2 again initiated L.E.C.No.65 of 1984 and by order dated 27.1.1984, directed eviction of the plaintiff on the ground that the classification for the purpose of eviction of the plaintiff has been changed from Gramakantha to P.W.D. road. The suit site was never used as a road. The L.E.A. proceeding, being No.15 of 1984, preferred by him before S.D.O., Berhampur was dismissed on 29.5.1985. Since the defendant no.2 threatened for eviction, he instituted the suit seeking the relief mentioned supra. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendants is that the suit schedule property was recorded as village site paromboke. In the resent settlement operation, the suit land has been recorded as P.W.D. road in the municipality khata. The same is the absolute property of the Government. The case of the defendants is that the suit schedule property was recorded as village site paromboke. In the resent settlement operation, the suit land has been recorded as P.W.D. road in the municipality khata. The same is the absolute property of the Government. Neither the plaintiff’s father nor the plaintiff nor any of his family members are in continuous possession of the suit land for the last four decades. For the illegal and unauthorized encroachment of the suit land, encroachment cases, being L.E.C.No.128/71, L.E.C.No.433/73, L.E.C.No.511/73 and L.E.C.No.22/77 had been initiated and orders of eviction were passed. Though in L.E.C.No.511/73 an order of eviction was passed on 26.6.1978 for consideration of the encroachment, the same was finally decided by the Sub-Divisional Officer, Berhampur for eviction of the plaintiff in L.E.A.No.15/84 and order of eviction was passed. For illegal and unauthorized occupation of the land, Land Encroachment Case No.65/84 was initiated against the plaintiff and the order of eviction was passed since the land was objectionable. The defendants have not settled any land in favour of the encroachers. An area of Ac.0.03.dec. has been settled in favour of one K.C. Panigrahi as per the procedure established by law. 4. On the inter se pleadings of the parties, the learned trial court framed four issues. They are :- “1. Whether the plaintiff has perfected his title by way of adverse possession ? 2. Whether L.E.C.No.65/84 is illegal and is liable to be set aside ? 3. Whether the suit is maintainable? 4. To what other relief ?” 5. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, seven documents were exhibited. The defendants had examined two witnesses. 6. The learned trial court on an anatomy of the pleadings of the parties and evidence on record came to hold that though the witnesses of the plaintiff have stated that the plaintiff is in possession of the land for more than forty years, but they are unable to say the year of first encroachment. It further held that the possession is not adverse because the real owner objected unauthorized occupation from the date it was detected and issued notice to him by starting different proceedings at different times. The plaintiff has never denied the title of the State Government over the suit land. The plaintiff has not perfected title by way of adverse possession and, accordingly answered Issue No.1. The plaintiff has never denied the title of the State Government over the suit land. The plaintiff has not perfected title by way of adverse possession and, accordingly answered Issue No.1. It further held that initiation of L.E.C.No.65/84 and L.E.A.No.15/84 are legal and binding on the plaintiff and answered Issue No.2 accordingly. With regard to Issue Nos.3 and 4, the learned trial court held that the suit is maintainable and the plaintiff has failed to establish the title by way of adverse possession. Held so, the learned trial court dismissed the suit. The plaintiff had unsuccessfully challenged the judgment and decree passed by the learned trial court before the learned A.D.J., Ganjam, Berhampur in Title Appeal No. 57 of 1988 (T.A.81/87 GDC), which was eventually dismissed. 7. The appeal was admitted by this Court on 1.8.1989 on the following substantial question of law: “Whether in the facts and circumstances of the case the appellant acquired title in respect of the suit property described in the revenue records of ‘Gramakantha Paromboke by adverse possession.” 8. Mr. Mishra, learned counsel for the appellant submitted that the land has been recorded as Gramakantha Promboke. The plaintiff is in possession over the suit land since time of his ancestors. His father has constructed a house over the suit property and is residing thereon with his family. The plaintiff is in possession of the land for forty years peacefully, continuously and to hostile animus to the true owner and, as such, he has perfected title by way of adverse possession. Further, the exact date of entry into the suit land is not necessary to declare the title of the plaintiff by way of adverse possession. In the encroachment proceeding, the Tahasildar by order dated 24.6.1978 directed for settlement of the land. 9. Per contra, Mr. Panda, learned Additional Government Advocate submitted that both the courts have negatived the plea of adverse possession. There is no perversity or illegality in the judgments of the courts below. 10. 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. 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”. 11. In paragraph-3 of the plaint, it is stated that the defendants have settled the adjoining plots in favour of encroachers. The plaintiff is also entitled for settlement of the land under the policy of the State since he is a homeless. The defendant no.2, having found the possession of the plaintiff unobjectionable, directed for settlement. A person, who bases his title by adverse possession must show by clear unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. The plaintiff admits the title of the State. The possession of the plaintiff was not hostile and amount to denial of title to the suit property. Further more, the learned trial court came to hold that P.Ws.1, 2 and 3 are unable to say the year of first encroachment. The suit land is P.W.D. road. 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. 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) 13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.