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2019 DIGILAW 131 (ORI)

Bibhuti Bhusan Mohanty v. State of Orissa

2019-02-15

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. 1. This appeal at the plaintiff's instance assails the affirming first appellate judgment of the learned District Judge, Phulbani in a suit for declaration of title over schedule-A land and permanent injunction. 2. The case of the plaintiff is that schedule-A land is a part and parcel of schedule-B land. Originally the land was un-surveyed and not assigned any khata and plot numbers. Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury were the owners of schedule-B land. They alienated the land to Balabhadra Kanhar and Gajapati Kanhar by means of a registered sale-deed in the year 1926 after obtaining prior permission from the then S.D.O. Kandhamal. Thereafter Balabhadra Kanhar and Gajapati Kanhar alienated a portion of schedule-B land to Sunapani Mohanty, plaintiff's grandfather, by means of an unregistered sale-deed dated 11.5.1948. After sale, Sunapani Mohanty constructed a thatched house over a portion of the land and stayed therein with his family members. After his death, his son Naba Bhusan Mohanty, father of the plaintiff, was in possession of the land. Subsequently his father donated the suit land in his favour. While matter stood thus, the settlement operation in the area, wherein the land falls, started. Sunapani Mohanty was bedridden. He could not take steps before the settlement authority, as a result of which, schedule-A land had been wrongly recorded as Rakhit land in Government khata no. 126, plot no. 41/1094 of mouza-Dadapaju. Out of the same, Ac. 0.200 dec. of land had been allotted to D.R.D.A. Kandhamal by the Collector in the year 1994-95. The R.O.R. was accordingly issued in the name of D.R.D.A. Phulbani. Notwithstanding the same, the plaintiff is in possession of schedule-A land. He has acquired possessory title. In 2001 the R.I. obstructed for construction of pucca house. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendants 1 and 2 filed a joint written statement pleading, inter-alia, that schedule-A land is not a portion of schedule-B land. It has no link with schedule-B land. The land has been rightly recorded in Rakhit khata. The description of the suit land in the plaint is incorrect. Neither the predecessor of the plaintiff, nor the plaintiff was in possession of the suit land. The plaintiff has no semblance of right, title and interest over the suit land. Defendants 3 to 9 were set ex-parte. 4. The land has been rightly recorded in Rakhit khata. The description of the suit land in the plaint is incorrect. Neither the predecessor of the plaintiff, nor the plaintiff was in possession of the suit land. The plaintiff has no semblance of right, title and interest over the suit land. Defendants 3 to 9 were set ex-parte. 4. Stemming on the pleadings of the parties, learned trial court struck five issues. Plaintiff led evidence, oral and documentary. No evidence was adduced by the defendants. Learned trial court dismissed the suit holding that the plaintiff had failed to prove that he is in possession of the suit land for more than thirty years and perfected title way of adverse possession. Unsuccessful plaintiff filed first appeal before the learned District Judge, Phulbani. On an anatomy of the pleadings and evidence, learned appellate court held that the plaintiff pleaded that the original owners of the suit land were Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury. The plaintiff has claimed title by way of adverse possession. But then, there is no averment as to against whom the plaintiff has claimed acquisition of possessory title and from which date possession of the plaintiff has become adverse against the State. The plaintiff has failed to prove that he was in possession of the suit land for more than thirty years. There are other legal heirs of Sunapani Mohanty. The alleged gift is not supported by any gift deed. It is not clear if the plaintiff claims acquisition of possessory title against the successors of Sunapani Mohanty. In absence of other legal heirs, the suit is not maintainable. The unregistered sale-deed had not seen the light of the day till it was presented before the court. The documents sought to be produced through PW-4. He was not a signatory to the unregistered deed, but he claimed that he was present when deed was executed. He was seventy years old in 2003 when he deposed in the court. Thus when the deed was executed, he was fifteen years old. He was not related to the family of Sunapani Mohanty. His evidence does not inspire confidence. Therefore, it cannot not be said that Sunapani Mohanty purchased the suit land in the year 1948. Held so, it dismissed the appeal. 5. Mr. Thus when the deed was executed, he was fifteen years old. He was not related to the family of Sunapani Mohanty. His evidence does not inspire confidence. Therefore, it cannot not be said that Sunapani Mohanty purchased the suit land in the year 1948. Held so, it dismissed the appeal. 5. Mr. Dayananda Mohapatra, learned Advocate for the appellant, submitted that the suit land originally belonged to Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury. For their legal necessity, they sold the land to Balabhadra Kanhar and Gajapati Kanhar by means of a registered sale-deed in the year 1926 for a valid consideration after obtaining prior permission from the then S.D.O. Kandhamal. Thereafter, Balabhadra Kanhar and Gajapati Kanhar alienated a portion of schedule-B land to one Sunapani Mohanty by means of an unregistered sale-deed dated 11.5.1948. After the sale, Sunapani Mohanty constructed a thatched house therein and stayed in the said house with his family members. After death of Sunapani Mohanty, his son Naba Bhusan Mohanty was in possession of the land. Naba Bhusan Mohanty gifted the land to the plaintiff. He further submitted that clause-11 of the Guidelines for Right and Title in respect of the lands situated in BoudhaKandhamal provides that if a person is in possession of the Government land for more than thirty years continuously, then the land shall be recorded in his name. The courts below did not delve into the same and, as such, the judgments are vulnerable. He further submitted that Sunapani Mohanty purchased the land in the year 1948. By the time the suit land was instituted in the year 2002, the plaintiff was in possession of the land for more than thirty years peacefully, continuously and with the hostile animus to the defendants and, as such, perfected title by way of adverse possession. 6. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council in the Secretary of State vs. Debendra Lal Khan, (1934) AIR PC 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. 6. Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council in the Secretary of State vs. Debendra Lal Khan, (1934) AIR PC 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 vs. 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." 7. 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 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." 8. 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." 8. The plaintiff asserts that Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury were the original owners of the suit land. Successive alienations have been made thereafter. The plaintiff claims title by way of adverse possession. It is not the case of the plaintiff that State is the paramount owner of the suit land. The learned appellate court is right in observing that there is no averment as to against whom the plaintiff has claimed acquisition of possessory title. The plaintiff has failed to prove that he was in possession of the suit land for more than thirty years peacefully, continuously and with the hostile animus to the defendants and, as such, perfected title by way of adverse possession. These are essentially findings of fact. There is no perversity in the said finding. 9. Reliance placed on clause-11 of the Guidelines for Right and Title in respect of the lands in Boudh-Kandhamal is totally misconceived. On a bare reading of the said provision, it is evident that if a person is in possession of the Government land for more than thirty years continuously, then the land shall be recorded in his name. But then, the plaintiff asserts title on the basis of unregistered sale-deed. Simultaneously he took the plea that he has perfected title by way of adverse possession. The plea is mutually destructive. 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. 10. The matter may be examined from another angle. The claim of title to the property and adverse possession are in terms contradictory. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and Others vs. Mirza Abdul Gaffer and Another, (1996) 1 SCC 639 held: "As regards the first plea, it is inconsistent with the second plea. The claim of title to the property and adverse possession are in terms contradictory. The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and Others vs. Mirza Abdul Gaffer and Another, (1996) 1 SCC 639 held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e. up to completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." 11. Resultantly, the appeal is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.