Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 419 (ORI)

Satish Kumar Naik v. Debendra Patel

2018-04-16

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. This is a plaintiff’s appeal against confirming judgment in a suit for declaration of title and permanent injunction. 2. An area Ac.12.11 dec. of land appertaining to plot nos.3978 and 3987 khata no.470 of village Darlipali in the district of Sundargarh is the subject matter of dispute. 3. The case of the plaintiff is that he is the owner in possession of the suit land. He used to pay rent. There are 38 mohua trees standing over the suit land. The defendants have no semblance of right, title and interest over the same. They created disturbance in his possession. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 4. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that plaintiff is not the owner of the suit land. They are in possession of the suit land since time of their ancestors. Their ancestors planted mohua trees. One Banchhanidhi Gountia got a permanent Hukumnama of the suit land along with other land in the year 1952-53 without knowledge of the defendants. He was the Gountia of the village. Without following the procedure of law, Hukumnama was granted to Banchhanidhi. He had no title over the suit land. Banchhanidhi was not in possession of the same. They are in possession of the suit land for more than sixty years openly, peacefully and with hostile animus to the knowledge of the entire world and as such have perfected title by way of adverse possession. 5. Stemming on the pleadings of the parties, learned trial court framed seven issues. Parties led evidence, oral and documentary to substantiate their cases. Learned trial court dismissed the suit holding that the Hukumnama and the gift, being beyond the pleadings cannot be relied upon. The transfer of gift, being within the period of five years from the date of Hukumnama, is contrary to the terms and conditions of the Hukumnama. In the remarks column of Sabak R.O.R., possession of the grandfather of the defendants has been reflected. The defendants are in possession of the suit land and mahul trees since the time of their grandfather, which is more than the statutory period of 12 years. Their possession being peaceful to the knowledge of all is adverse. They have perfected title by adverse possession. The defendants are in possession of the suit land and mahul trees since the time of their grandfather, which is more than the statutory period of 12 years. Their possession being peaceful to the knowledge of all is adverse. They have perfected title by adverse possession. The unsuccessful plaintiff filed T.A.No.31 of 1992 before the learned District Judge, Sundargarh, which was eventually dismissed. 6. This appeal was admitted on the substantial questions of law enumerated in ground nos. B, C, D, E & F of the appeal memo. The same are: “B. For that whether the counts below were correct in the interpretation of the recitals in the Title Deed, the Hukumnama Ext.1 granted by the Collector that it was only for five years and restriction was imposed in the said Deed for transfer of that land to any other person in any manner, while there was absolutely no such limitation of tenure nor restriction on alienation, as apparent from the documents itself. C. For that whether the Gift (Ext.2) could not be accepted and acted upon by a minor through his father guardian. D. For that whether the plaintiff was not entitled to prove the basis of his title such as the Hukumnama (Ext.1) and the Gift deed (Ext.2) because of absence of their pleading in the plaint in view of the specific challenge made in the written statement and the specific issue and the evidences led by both parties on the issue. E. For that in view of absence of pleadings and evidences as to when the adverse possession on the Anabadi land commenced and when it matured to title, whether the Courts below erred in finding that defendants acquired title by adverse possession. F. For that as to whether the First Appellate Court committed serious error of record when it found that the defendants’ possession over the suit land stood corroborated from the note of possession recorded in Sabik Parcha (Ext.A) in respect of Sabk plot of an area of 60 acres inasmuch as the said parcha was in respect of Anabadi Khata recorded in favour of the State and the note in remarks column was only to the limited extent that Mohua flowers were being plucked by the defendants’ ancestors and this written documentary evidence excludes the case of possession of the suit land. Such error has affects the plaintiff’s case on merits. Such error has affects the plaintiff’s case on merits. Moreover, the note in the remarks column was not certain or specific as to whether it related to the trees standing on the lands other than the portion of 12 acres which is the suit land which was taken by the plaintiff out of the sabik settlement plot covering an area of 60 areas.” 7. Heard Mr.Pranaya Swain, learned Advocate on behalf of Mr.K.C.Kar, learned Advocate for the appellant and Mr.Byomokesh Sahoo, learned Advocate for the respondents. 8. Mr.Swain, learned Advocate for the appellant submitted that Hukumnama, Ext.1, was granted on 14.10.1953 in favour of Banchhanidhi Gountia. Thereafter, Banchhnidhi Gountia gifted the suit property in favour of the plaintiff on 26.11.1954, Ext.2. The hal R.O.R. was published on 1.4.1977 in the name of the plaintiff, Ext.3. The plaintiff used to pay rent. Thirty eight mohua trees are standing over the suit plot. The defendants have no semblance of right, title and interest over the same. The courts below are not correct in holding that Hukumnama was granted for five years and restriction was imposed for alienation of the land. According to him, Banchhanidhi became the owner in possession of the suit land pursuant to the Hukumnama, Ext.1. He executed a gift deed in favour of the plaintiff. The defendants have no right, title and interest over the same. 9. Mr.Sahoo, learned Advocate for the respondents submitted that no title has been passed pursuant to the Hukumnama, Ext.1. Any successive alienations or gift will not confer title. There is no pleading that Hukumnama, Ext.1 was granted to Banchhanidi Gountia and the later had executed the gift deed, Ext.2, in favour of the plaintiff. He further submitted that the defendants are in possession of the suit land for more than sixty years peacefully, continuously with the hostile animus to the knowledge of the defendants and as such perfected title by way of adverse possession. 10. Since the Hukumnama has been exhibited as Ext.1, it is necessary to scrutinize the same. Ext.1 has been styled as reclamation Hukumnama said to have been granted in favour of Banchhanidhi Gountia. Ext.1 is an unstamped document. The same has been written in a plain paper. The person, who granted the same, has not been mentioned. The seal affixed on the top of the paper is not legible. Ext.1 has been styled as reclamation Hukumnama said to have been granted in favour of Banchhanidhi Gountia. Ext.1 is an unstamped document. The same has been written in a plain paper. The person, who granted the same, has not been mentioned. The seal affixed on the top of the paper is not legible. In the remarks column it is stated that “in the event there are trees over the same, the same shall be kept under the zima of the officer and Banchhanidhi Gountia shall pay certain amount to Malguja Gountia for five years.” From the remarks column, it is evident that the property belonged to Gountia. 11. The question does arise whether Gountia had any right to execute the Hukumnama in favour of Banchhanidhi Gountia ? The subject matter of dispute is no more res integra. In Paramananda Pradhan and another v. Palau Sahu and others, AIR 1984 Orissa 57, the question arose before the Full Bench of this Court as to whether Gounti-raiyati lands in the former State of Bamra are the personal property of the Gountia or he ceases to have the right to hold the same on abolition of the village offices. The further question arose as to whether the Civil Court has jurisdiction to entertain the suit for partition of the Gounti-raiyati lands, which have been settled under Sec. 6 of the Revenue Rules, ex-State, Bamra prior to enactment of the Orissa Merged Territories (Village Offices Abolition) Act (10 of 1963) (hereinafter referred to as “the Act”). On an in-depth analysis of the Revenue Laws prevailing in ex-State Bamra and the Act, the Full Bench held that the Gountia used to possess the vacant holdings of the raiyats and to remain in charge of those holdings until they were settled with other raiyats. He was in possession of those lands by virtue of or as incidental to his office. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gountia. After abolition of the village offices, the Gountia shall cease to have the right to hold, the Gounti-raiyati lands as provided under Section 3(g) of the Act. Gounti-raiyati lands in the ex-State of Bamra were not the personal property of the Gountia. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gountia. After abolition of the village offices, the Gountia shall cease to have the right to hold, the Gounti-raiyati lands as provided under Section 3(g) of the Act. Gounti-raiyati lands in the ex-State of Bamra were not the personal property of the Gountia. It was 8 further held that the Gounti-raiyati lands in the ex-State of Bamra were not the personal property of Gountia, but he was in charge of those lands by virtue of or as incidental to his office and according to the provisions of Sec. 3(g) of the Act, he ceases to have the right to hold those lands. 12. Reliance placed on Ext.1 is totally misplaced. The document requires compulsory registration under Section 17 of the Registration Act, since value of the suit property is more than Rs.100/-. Thus, the conclusion is irresistible that Banchhanidhi Gountia had no title over the suit property. The gift deed executed by Banchhanidhi Gountia will not confer any title. The R.O.R. neither creates title nor extinguishes title. 13. 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. 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”. 14. The date of entry into the suit land has not been mentioned. Mere possession of the suit land for long time is not sufficient to hold that the defendants 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 learned trial court abruptly came to a conclusion that the defendants have perfected title by way of adverse possession, which has been confirmed by the learned appellate court. The finding to that extent is perverse. The substantial questions of law are answered accordingly. 15. In the result, the appeal is dismissed. The learned trial court abruptly came to a conclusion that the defendants have perfected title by way of adverse possession, which has been confirmed by the learned appellate court. The finding to that extent is perverse. The substantial questions of law are answered accordingly. 15. In the result, the appeal is dismissed. The judgment and decree of the lower appellate court and that of the learned trial court is modified to the extent that neither the plaintiff nor the defendants have title over the suit land. There shall be no order as to costs.