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2019 DIGILAW 252 (ORI)

Nityananda Dalei v. Collector, Mayurbhanj

2019-03-28

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of title by way of adverse possession, confirmation of possession and permanent injunction. 2. The case of the plaintiff is that the suit property was recorded in the name of the State. In the year 1960 his father possessed the said land. The kissam of the land was rakhit. The suit land was not fit for cultivation. His father made it fit for cultivation. His father was in possession of the suit land till his death. After death of his father, he is in possession of the suit land peacefully, continuously and with the hostile animus to the defendants for more than statutory period and, as such, perfected title by way of adverse possession. When the defendants threatened to dispossess him, he instituted the suit seeking the reliefs mentioned supra. 3. The defendants were set ex parte. To substantiate the case, the plaintiff examined two witnesses and on his behalf ten documents had been exhibited. On an analysis of the evidence on record and pleadings, learned trial court dismissed the suit holding that the plaintiff has failed to prove that he has perfected title by way of adverse possession. Unsuccessful plaintiff filed R.F.A.No.4 of 2005 before the learned Civil Judge (Sr.Division), Udala, which was eventually dismissed. 4. Mr.Niranjan Lenka, learned counsel for the appellant submits that the suit land was lying fallow. The father of the plaintiff possessed the same in the year 1960. He reclaimed the suit land. After death of his father, the plaintiff is in possession of the suit land and constructed a house over a portion of the same. He is in possession of the suit land peacefully, continuously and with hostile animus to the defendants and, as such, perfected title by way of adverse possession. Both the courts below committed a manifest illegality in holding that the plaintiff has paid fine and admitted the title of the defendants. 6. Per contra, Mr.Swayambhu Mishra, learned A.S.C. submits that there is no document to prove that the plaintiff is in possession of the suit land for more than statutory period. In Encroachment Case No.1263 of 2001, he has paid penalty. He admits the title of the defendants. 7. In Nabin Chandra Mohanta (since dead) through L.Rs. Vrs. 6. Per contra, Mr.Swayambhu Mishra, learned A.S.C. submits that there is no document to prove that the plaintiff is in possession of the suit land for more than statutory period. In Encroachment Case No.1263 of 2001, he has paid penalty. He admits the title of the defendants. 7. In Nabin Chandra Mohanta (since dead) through L.Rs. Vrs. State of Orissa and others R.S.A. No.396 of 2004, disposed of on 22.2.2019), a question arose whether the suit for declaration of title on the basis of adverse possession is maintainable ? Taking a cue from the judgment in the case of Gurdwara Sahib vs. 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) 8. The matter may be examined from another angle. Adverse possession is not a pure question of law, but a blended one of fact and law. 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. 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." (emphasis laid) 9. The date of entry into the suit land has not been mentioned. In Encroachment Case No.1263 of 2001, the plaintiff has paid penalty. The element of hostile animus is absent. 10. Resultantly, the appeal fails and is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.