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2019 DIGILAW 185 (ORI)

Bansidhar Naik v. State of Orissa

2019-03-07

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, the orders passed in encroachment cases are invalid, illegal and permanent injunction. 2. The case of the plaintiff is that he is in peaceful, uninterrupted and continuous possession of the suit land from the time of his father. The Tahasildar, Talcher, defendant no.2 initiated Encroachment Case No.17 of 1985-86 against him on the ground that he has encroached upon Ac.0.7 dec. of land appertaining to hal plot no.390/2909 and directed to stop the construction of the house. Defendant no.2 has no jurisdiction to initiate encroachment proceeding in respect of the suit land, since the suit land situates within municipal area. He is in possession of the land for forty years. In the settlement record of right, the note of possession of his father has been reflected. He assails the order in Encroachment Revision Case No.11 of 1987. On 23.9.1994 the revisional authority remanded the matter to defendant no.2 to dispose of the case. He has not encroached upon the Government land. But then the defendant no.1 passed the order of eviction on 21.10.1995. He filed Encroachment Appeal No.2 of 1996. The same having been dismissed, he filed Encroachment Revision No.8 of 1998. The revision met the same fate. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. Defendant no.2 filed written statement denying the assertions made in the plaint. Case of the defendants is that the plaintiff is not in possession of the suit land. He has forcibly occupied the Government land before the final publication of R.O.R. in the year 1985-86. Defendant no.2 initiated Encroachment Case no.11 of 1985 against the plaintiff on the report of the R.I., Ghantapada. When the plaintiff constructed rooms over the suit land, defendant no.2 issued notice under Section 8 of the Orissa Prevention of Land Encroachment Act ('O.P.L.E.Act') to him to stop the construction. Defendant no.2 has jurisdiction to initiate proceeding under the O.P.L.E.Act. The R.O.R. neither creates title nor extinguishes title. The plaintiff has not perfected title by way of adverse possession. The plaintiff is having Ac.2.81 dec. of agricultural land, out of which Ac.0.11 dec. is homestead land. He is not a homestead less or land less person. 4. On the inter se pleadings of the parties, learned trial court struck six issues. The plaintiff has not perfected title by way of adverse possession. The plaintiff is having Ac.2.81 dec. of agricultural land, out of which Ac.0.11 dec. is homestead land. He is not a homestead less or land less person. 4. On the inter se pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary. Learned trial court, on an analysis of the evidence on record and pleadings, dismissed the suit holding that the suit is barred under Section 16 of the O.P.L.E.Act. The plaintiff has not perfected title by way of adverse possession. Unsuccessful plaintiff filed R.F.A.No.19 of 2006 before the learned Additional District Judge, Talcher, which was eventually dismissed. 5. This appeal was admitted on the following substantial questions of law: "(1) Whether in view of the provisions contained in Section 7(2-a) of the O.P.L.E.Act, which provides for settlement of land instead of eviction, learned courts below are justified in dismissing the suit of the plaintiff-appellant ? (ii) Whether the finding in Ext.9 is binding on the respondents so far as the plea of adverse possession of the appellant is concerned?" 6. Heard Mr. Arun Kumar Mishra-2, learned counsel for the appellant and Mr. R.P. Mohapatra, learned Additional Government Advocate for the respondents. 7. Mr.Mishra-2, learned counsel for the appellant submits that notwithstanding bar contained in Section 16 of the O.P.L.E.Act, the suit for declaration of title is maintainable. He further submits that the plaintiff is in possession of the suit land since the time of his father for more than statutory period peacefully, continuously and with the hostile animus to the defendants and, as such, perfected title by way of adverse possession. The Tahasildar has no jurisdiction to initiate proceeding under the O.P.L.E. Act, since the suit land situates within urban area. The defendants have not taken any steps to evict the plaintiff from the suit land. In view of Section 27 of the Limitation Act, the plaintiff has acquired by title by of prescription. 8. Mr. Mohapatra, learned A.G.A. submits that the suit land is a road. The nature of property is communal. The question of acquisition of tile by way of adverse possession does not arise. Both the courts below concurrently held that the plaintiff has not perfected title by way of adverse possession. 9. 8. Mr. Mohapatra, learned A.G.A. submits that the suit land is a road. The nature of property is communal. The question of acquisition of tile by way of adverse possession does not arise. Both the courts below concurrently held that the plaintiff has not perfected title by way of adverse possession. 9. The question does arise as to whether the plaintiff can institute the suit for declaration of title on the basis of adverse possession? 10. An identical question came up for consideration before this Court in the case of Nabin Chandra Mohanta (since dead) through L.Rs. Vs. State of Orissa and others, (R.S.A. No.396 of 2004, dismissed on 22.02.2019). Taking a cue from the decision of the apex Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669 , this Court held : "10. In Gurdwara Sahib, the plaintiff-appellant filed the suit for decree of declaration to the effect that it had become the owner of the suit property by adverse possession, correction of ROR and permanent injunction. The suit was partly decreed by the trial court granting relief of injunction. The first appeal against that part of the judgment, whereby relief of declaration was denied was dismissed by the Additional District Judge. In the second appeal, the relief of declaration by way of adverse possession was denied holding that such a suit is not maintainable. The second appeal was dismissed. The matter travelled to the Apex Court. The Apex Court held: "8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence." (emphasis laid) 11. In no uncertain terms, the Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. The same is ratio decidendi. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. The same is ratio decidendi. The High Court is bound under Article 141 of the Constitution of India. xxx xxx xxx 14. In State of Orissa vs. Bhanumali (Dead) Nurpa Bewa and others, (1996) AIR 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. But then, in view of the decision of the Apex Court in the case of Gurdwara Sahib (supra), the plaintiff cannot maintain the suit for declaration of title by way of adverse possession." 11. The inescapable conclusion that even if the plaintiff is found to be in adverse possession, he cannot seek a declaration to the effect that such adverse possession has matured into ownership. 12. The matter may be examined from another angle. 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 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. On anatomy of the pleadings and evidence on record, both the courts below concurrently held that the plaintiff has not perfected title by way of adverse possession. These are essentially findings of fact. There is no perversity in the said findings. 13. In view of the foregoing discussions, the appeal fails and is dismissed, since the same does not involve any substantial questions of law. There shall be no order as to costs.