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2017 DIGILAW 967 (ORI)

Bangali Bag v. State of Orissa

2017-08-31

A.K.RATH

body2017
JUDGMENT : DR.A.K.RATH, J. This is a plaintiff’s appeal against an affirming judgment in a suit for declaration of right, title, interest and confirmation of possession. 2. The case of the plaintiff is that the suit property belongs to the defendant. He forcibly entered into the suit land in the year 1950. He made improvement of the land. He is in possession of the land peacefully, continuously and with the hostile animus to the defendant and as such perfected title by way of adverse possession. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant is that in the current settlement operation, the Assistant Settlement Officer found the plaintiff in unauthorised occupation in the suit land for which he initiated Suit No.1220/66 and reported the matter to the Tahasildar, Titilagarh. Later, the Tahasildar started Encroachment Case No.2292/72 against the plaintiff under the provisions of Orissa Prevention of Land Encroachment Act, 1953. Since the encroachment was objectionable, show cause notice was issued to the plaintiff. Order of eviction was passed on 28.05.1978 after affording opportunity of hearing to him. Thereafter the notice in Form “B” was issued to the plaintiff to vacate the encroachment. The plaintiff did not file any appeal against the said order. Thus the order attained its finality. It is further pleaded that the suit plot was recorded in Khata No.137 in favour of State of Orissa and classified as “Jalchar and Gramya Jungle”. 4. On the inter se pleadings of the parties, the learned trial court struck three issues. Both the parties led evidence, oral and documentary, to substantiate their cases. The learned trial court relying on a decision of the Division Bench of this Court in the case of Artabandhu Mohapatra vrs. Bisweswar Bhutia, AIR 1979 Orissa 110 came to hold that the plaintiff has failed to establish his title over the suit land by way of adverse possession. Held so, it dismissed the suit. The unsuccessful plaintiff filed T.A. No.3/9 of 1989 in the court of the learned Additional District Judge, Titilagarh, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground no.5 (a) & (b) of the appeal memo. Held so, it dismissed the suit. The unsuccessful plaintiff filed T.A. No.3/9 of 1989 in the court of the learned Additional District Judge, Titilagarh, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground no.5 (a) & (b) of the appeal memo. The same are: “5.(a)Whether orders of the encroachment proceeding which has not been executed can be said to have arrested the running of adverse possession ? (b) Whether the initiation of the proceeding for eviction and the final orders passed therein having not being executed/implemented can be said to have arrested the period of limitation for computation of adverse possession ?” 6. Mr. Pattnaik, learned counsel for the appellant submits that the plaintiff is in possession of the suit land peacefully, continuously and with the hostile animus to the defendant and as such perfected title by way of adverse possession. Initiation of the proceeding under the O.P.L.E. Act will not arrest the period of limitation for computation of adverse possession. He is still in possession. The ratio in the case of Artabandhu Mohapatra (supra) does not apply to the facts of the case. He placed reliance a decision of the Bombay High Court in the case of Dagadabai Fakirmahomed vs. Sakharam Gavaji and others, AIR 1948 Bombay 149. 7. Per contra, Mr. Mohapatra, learned Additional Government Advocate submits that the plaintiff is an encroacher. He further submits that adverse possession is a mixed question of fact and law. The date of entry into the suit land by the plaintiff has not been mentioned. Both the courts below concurrently held that the plaintiff had not perfected title by way of adverse possession. 8. In the case of Dagadabai Fakirmahomed (supra), it was held:- “that even a decree for possession on the strength of title will not interrupt the adverse possession of the defendant unless his possession is disturbed as a matter of fact in pursuance of such a decree. The position was explained as follows:- “Whether a decree for possession in favour of the plaintiff does or does not interrupt adverse possession is purely a question of fact to be decided, on the circumstances of each case. The position was explained as follows:- “Whether a decree for possession in favour of the plaintiff does or does not interrupt adverse possession is purely a question of fact to be decided, on the circumstances of each case. If the decree does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, it cannot be said that it has interrupted possession; nor can it in law affect the nature of the possession, unless it does so in fact. A decree for possession followed by an unsuccessful execution cannot be deemed as a matter of law to have the effect of either interrupting possession of altering its character.” 9. The decision in the case of Dagadabai Fakirmahomed (supra) has no application to the facts and circumstances of the case. 10. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 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. XXVII 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 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) 12. The substantial question of law framed by this Court does not arise for consideration for the following reasons. On a cursory perusal of the plaint, it is evident that the date of entry into the suit land by the plaintiff has not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the plaintiff 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 on a threadbare analysis of the evidence record, both oral and documentary, as well as pleadings negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. 13. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.