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2018 DIGILAW 219 (ORI)

State of Orissa v. Dhruba Charan Sahu

2018-03-06

A.K.RATH

body2018
JUDGMENT : Dr. A.K.Rath, J This is a defendant’s appeal against confirming judgment. 2. Plaintiff-respondent instituted the suit for declaration of title and permanent injunction. Case of the plaintiff was that the suit property was previously recorded as ‘Nala’ (water channel). His house situates adjacent to the water channel. In course of time, the same was silted up and converted to homestead. His father amalgamated that land with his homestead. His father was in possession of the land and thereafter he is in possession of the land for more than 90 years and as such, perfected title by way of adverse possession. But then in the consolidation record-of-right, the suit land has been recorded in the name of the State with note of possession in his name. When a cloud of suspicion has been raised on his title, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant was set ex parte. Learned trial court decreed the suit holding, inter alia, that the plaintiff and his father were in possession of the suit land for more than 30 years and as such, perfected title by way of adverse possession. Unsuccessful defendant filed Title Appeal No.42 of 1994 before the learned District Judge, Balasore-Bhadrak, Balasore. Learned appellate court came to hold that in spite of bar contained in Sec. 16 of the Orissa Prevention of Land Encroachment Act, the suit was maintainable. It concurred with the findings of the court below and dismissed the appeal. Hence this appeal. 4. The second appeal was admitted on the following substantial questions of law; “1. Whether in view of Section 16 of the Orissa Prevention of Land Encroachment Act, a suit for declaration is maintainable in law. 2. Whether on a drain or a Nala, a person can claim right of easement or adverse possession.” 5. Heard Mr.Swayambhu Mishra, learned Addl. Standing Counsel for the appellant. None appears for the respondent. 6. Mr. Mishra, learned Addl. Standing Counsel submits that in the consolidation operation, the suit land has been recorded in the name of the State and accordingly ROR has been issued. No such prayer has been made to set aside the ROR. He further submits that in view of the bar contained in Sec. 16 of the OPLE Act, the suit is not maintainable. The date of entry into the suit land has not been mentioned. No such prayer has been made to set aside the ROR. He further submits that in view of the bar contained in Sec. 16 of the OPLE Act, the suit is not maintainable. The date of entry into the suit land has not been mentioned. The courts below committed a manifest illegality in declaring the title of the plaintiff over the suit land on the basis of adverse possession. 7. In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460, a question arose that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. 8. Notwithstanding the bar contained in Sec. 16 of the OPLE Act, the suit for declaration of title is not maintainable. 9. Admittedly the consolidation ROR has been published in the name of the State. The question does arise as to whether the suit in the present form is maintainable in absence of prayer to set aside the ROR. 10. The subject-matter of dispute is no more res integra. This Court in the case of Collector, Puri and aother v. Balunki Swain, 2018 (I) CLR 592 held thus; “9..…….. This Court in the case of State of Orissa and others v. Sibasankar Ray and another (S.A. No.170 of 1993 disposed of on 31.3.2017) held that notwithstanding the closure of consolidation operation and publication of record-of-right, the aggrieved party may institute the suit or approach the authority under Sec. 37 of the O.C.H. & P.F.L. Act. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of-right published by the consolidation authority, the simple suit for permanent injunction is not maintainable. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of-right published by the consolidation authority, the simple suit for permanent injunction is not maintainable. Be it noted that in the said case after publication of consolidation R.O.R. the plaintiff instituted the suit for permanent injunction without a prayer to set aside the R.O.R. In view of the fact that the consolidation R.O.R. has been published in the name of the State and no prayer has been made to set aside the same, the suit in its present form is not maintainable. 11. Adverse possession is not a pure question of law but a blended one of fact and law. In Karnataka Board of Wakf v. Govt. of India (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 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. 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.” 12. 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. The substantial questions of law are answered accordingly. 13. A priori, the impugned judgments are aside. Consequently the suit is dismissed. There shall be no order as to costs.