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2018 DIGILAW 454 (ORI)

Bisikesan Naik v. State of Orissa

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This is a plaintiff’s appeal against confirming judgment. 2. The suit was for declaration of title over schedule ‘A’ land, correction of ROR and for a direction to the defendants to settle the schedule ‘A’ land in his favour. The case of the plaintiff was that he is a landless scheduled tribe. His residential house stands over a piece of Government land described as schedule ‘A’ for more than forty-six years. In the current settlement, the land had been settled in the name of the Government. The kissam of land is Abadajogya Anabadi. In the remarks column, the note of possession of his father had been reflected. His father was in peaceful possession of the land. After his death, he is in possession of the land peacefully, continuously and with the hostile animus of the defendants. While matter stood thus, Encroachment Case Nos.719 of 1989, 355 of 1987 and 357 of 1987 had been initiated against him. He being an encroacher appeared in the cases, paid dues and obtained receipts. He had not been evicted from the suit land. In an encroachment case, the order of eviction was passed. He filed Encroachment Appeal Nos.11 and 12 of 1987 before the Sub-Collector, Baripada. The appeals were allowed and the matter was remanded back to the Tahasildar, Baripada, defendant no.2, to enquire into the same and settle the land in his favour. No order has been passed till yet. With this factual scenario, he instituted the suit seeking the relief’s mentioned supra. 3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants was that the suit is barred under Sec.16 of the Orissa Prevention of Land Encroachment Act (“OPLE Act”). The suit land is a Government land. The same has been recorded in the name of the Government in the ROR. The plaintiff has no right, title and interest over the same. Encroachment Case Nos. 719/87, 193/87, 355/87 and 357/87 had been initiated against the plaintiff for unauthorised occupation of the suit land. The plaintiff was in unauthorised occupation of the suit land since 1984. The land is objectionable and cannot be settled. 4. On the interse pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary, to substantiate their cases. The plaintiff was in unauthorised occupation of the suit land since 1984. The land is objectionable and cannot be settled. 4. On the interse pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court dismissed the suit holding inter alia that the plaintiff paid penalty for his unauthorised occupation in the encroachment case initiated under the OPLE Act. Since he had paid penalty in the encroachment case and accepted title of the suit, the plea of adverse possession is bound to fail. Sec.16 of the OPLE Act is a bar to civil court to try the suit. It further held that the plaintiff had admitted the superior title of the State by paying penalty and has failed to prove his continuous, uninterrupted peaceful possession of the suit land for more than thirty years with the hostile animus against the true owner. The unsuccessful plaintiff filed appeal before the learned District Judge, Baripada, which was subsequently transferred to the court of the learned Civil Judge (Sr. Divn.), Baripada and renumbered as T.A. No.13/36 of 1998-97. Learned lower appellate court held that the civil court has jurisdiction to entertain the suit. It concurred with the finding of the learned trial court and dismissed the appeal. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.6(A), (B) and (C) of the memorandum of appeal. The same are: “6(A) Whether the learned lower appellate court is satisfied in holding that by paying the penalties in the encroachment proceeding the appellant is precluded from claiming title by adverse possession. (B) The plea of adverse possession can only be raised by a party by admitting title of the other party. A declaration of title relief by adverse possession can only be raised and decided by the civil court. Any order passed by the court of limited jurisdiction cannot operate as res judicata regarding title to the property raised subsequently after the decision of the court of limited jurisdiction. In view of the aforesaid principle of law as has been set at rest in A.I.R. 1991 S.C. 884 and A.I.R. 1982 S.C. 1081, whether the learned lower appellate court is justified in holding that plaintiff has no cause of action to file the suit because of admission of title of Govt. in the encroachment proceedings by paying penalty. In view of the aforesaid principle of law as has been set at rest in A.I.R. 1991 S.C. 884 and A.I.R. 1982 S.C. 1081, whether the learned lower appellate court is justified in holding that plaintiff has no cause of action to file the suit because of admission of title of Govt. in the encroachment proceedings by paying penalty. (C) Whether Ext.3 series, the order passed in the encroachment proceeding and receipts showing payment of penalty can arrest the adverse possession be raised in civil court and the findings of the learned courts below to that extent sustainable.” 6. Heard Mr. Lalit Kumar Moharana, learned counsel, on behalf of Mr. S.K. Mishra, learned counsel for the appellant and Mr. Ram Prasad Mohapatra, learned A.G.A. for the respondents. 7. Mr. Moharana, learned counsel for the appellant, submitted that the learned lower appellate court committed a manifest illegality and impropriety in holding that by paying penalty in encroachment proceeding, the plaintiff has accepted title by way of adverse possession. The plea of adverse possession can only be raised by the parties by admitting title of other party. The civil court has jurisdiction to declare the title. The order passed by the court of limited jurisdiction will not operate as res judicata regarding title of the property. 8. Per contra, Mr. Mohapatra, learned A.G.A. for the respondents, submitted that the plaintiff is an unauthorised occupant. In the encroachment case, he had paid the penalty and admitted the title. 9. Sec.16 of the OPLE Act is the hub of the issue. The same is quoted hereunder. “16. Bar of suits and proceedings—No suit or other legal proceedings in respect of the matters or disputes for determining or deciding which provision is made in this Act shall be instituted in any Court of law except under and in conformity with the provisions of this Act.” 10. In State of Orissa vs. Bhanumali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199, 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. In State of Orissa vs. Bhanumali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199, 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. 11. Notwithstanding the bar contained in Sec.16 of the OPLE Act, the civil court has jurisdiction to adjudicate the complicated question of title. 12. The next question arises for consideration as to whether the plaintiff has perfected title by way of adverse possession ? 13. 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 shew that it is possession adverse to the competitor”. 14. The date of entry into the suit land has not been mentioned. In the encroachment case, the plaintiff had paid the penalty. In the suit, the plaintiff prayed for a direction to the defendants to settle the schedule ‘A’ land in his favour. Thus the element of hostile animus is absent. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has 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. 15. As a sequel to the above discussion, the appeal fails and is dismissed. There shall be no order as to costs.