Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 490 (ORI)

Basanta Kumar Behera v. Tahasildar, Banki

2018-05-02

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff against a confirming judgment. The suit is for permanent injunction. 2. The case of the plaintiff is that the suit plot measuring Ac.0.20 dec. of land appertaining to Khata No. 886, Plot No. 686 of Mouza-Gadajit in the district of Cuttack has been recorded as Anabadi and Puratan Patita. He is in possession of the suit land peacefully, continuously and with hostile animus to the knowledge of the defendants for more than the statutory period and as such, perfected title by way of adverse possession. He stacked stones over the suit land. While matter stood thus, Encroachment Case No. 33 of 1983 was initiated by the Tahasildar, Banki. He appeared and filed an application for grant of lease of the land in his favour. The Tahasildar seized the stones. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that the suit plot measuring Ac.0.20 dec. is a part of plot admeasuring Ac.4.14 dec. The same is recorded as Puratan Patita. The Gundicha temple of Lord Jagannath Mahaprabhu bije Gadajit is situated over the plot. The land encroached by the plaintiff was within the premises of the Gundicha temple. The same is meant for parking of the chariot of the deity, assembly of the religious public for darsan of the deity and performance of seva puja and nitikrantis during Car Festival. The encroachment proceeding was disposed of in accordance with law. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary, to substantiate their case. Learned trial court dismissed the suit with a finding that the suit land is Puratan Patita. The plaintiff made two applications on 05.10.1983 and 06.06.1984, vide Exts. D and E, for lease of the land. He had not mentioned that he was in possession of the suit land for more than forty years. The plaintiff was not in continuous possession of the suit land. The plaintiff was evicted from the suit land. The plaintiff is not a landless person. Defendant no.2 rejected the applications of the plaintiff for lease of the land. He had not mentioned that he was in possession of the suit land for more than forty years. The plaintiff was not in continuous possession of the suit land. The plaintiff was evicted from the suit land. The plaintiff is not a landless person. Defendant no.2 rejected the applications of the plaintiff for lease of the land. In view of the bar contained in Sec.16 of the Orissa Prevention of Land Encroachment Act (“O.P.L.E. Act”), the suit is not maintainable. Unsuccessful plaintiff filed T.A. No. 17 of 1988 before the learned District Judge, Cuttack, which was eventually dismissed. 5. This appeal was admitted on the following substantial question of law:- “Whether the courts below failed to consider the statement of witnesses in its proper perspective and effect of non-consideration of such statements vitiates the judgment ?” 6. Heard Mr. Pravat Kumar Lenka on behalf of Mr. S.K. Mohanty, learned counsel for the appellant and Mr. Swayambhu Mishra, learned Additional Standing Counsel for the respondents. 7. Mr. Lenka, learned counsel for the appellant submitted that the plaintiff is in possession of the suit land peacefully, continuously and with hostile animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession. The courts below had not considered the evidence of the plaintiff. The findings of the courts below are perverse. 8. Per contra, Mr. Mishra, learned Additional Standing Counsel submitted that adverse possession is a mixed question of fact and law. Both the courts below concurrently held that the plaintiff has not perfected title by way of adverse possession. 9. In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (1) OLR 460, a question arose that whether the decision of the Revenue Officer in the proceeding under the O.P.L.E. 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 O.P.L.E. 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. Notwithstanding the bar contained in Sec. 16 of the O.P.L.E. Act, the civil court has jurisdiction to adjudicate the complicated question of title. 10. In Karnataka Board of Wakf vs. Govt. Notwithstanding the bar contained in Sec. 16 of the O.P.L.E. Act, the civil court has jurisdiction to adjudicate the complicated question of title. 10. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779 , the apex Court held:- "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. 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.” 11. The date of entry into the suit land had not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the true owner 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. The plaintiff made two applications before the Tahasildar in encroachment case on 05.10.1983 and 06.06.1984, vide Exts. D and E, for lease of the land in his favour. The plaintiff made two applications before the Tahasildar in encroachment case on 05.10.1983 and 06.06.1984, vide Exts. D and E, for lease of the land in his favour. Thus, the element of hostile animus is absent. 12. The witnesses examined by the plaintiff made prevaricating statements. On an anatomy of pleadings and evidence, both oral and documentary, the courts below negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial question of law is answered accordingly. 13. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.