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2019 DIGILAW 274 (ORI)

Bisakha Pradhan v. Collector, Cuttack

2019-04-04

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title by way of adverse possession and permanent injunction. 2. Case of the plaintiff is that in the settlement ROR of the year 1929, the suit land was recorded in the names of Kinei Sethi son of Mani Sethi, Muli Sethi son of Sanei Sethi, Pandaba Sethi and Bhima Sethi as desahata dhoba jagir status. The names of Jai Pradhan, Gobinda Pradhan, Dai Pradhan and Sindhu Pradhan son of Burundu Pradhan had been reflected in the remarks column of the ROR. Though the land was recorded in the names of Sethi family, but the same was in possession of Pradhan family. One of the co-sharers, namely, Dhadi Pradhan son of Jai Pradhan sold the suit land and other lands to another co-sharer Govinda Pradhan son of Burundu Pradhan by means of a registered sale deed dated 6.7.1954. Govinda Pradhan could not take any steps to record the land in his favour. In the settlement ROR of 1970, the land has been recorded in the name of the Government. Note of possession of Govinda Pradhan has been reflected in the remarks column of the ROR. In the consolidation ROR, the land has been recorded in the name of Government under consolidation khata no.636, plot no.458. Plaintiffs are 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 adverse possession. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. Defendants entered contest and filed a written statement pleading, inter alia, that the suit is barred under Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, "the OCH&PFL Act"). Kissam of the land is "Abadjogya Anabadi". It is reserved for communal purposes. 4. On the inter se pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding, inter alia, that the plaintiffs have not perfected title by way of adverse possession. Unsuccessful plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the learned Ad hoc Addl. District Judge, Fast Track Court No.IV, Cuttack and renumbered as RFA No.47 of 2006. The appeal was eventually dismissed. 5. Unsuccessful plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the learned Ad hoc Addl. District Judge, Fast Track Court No.IV, Cuttack and renumbered as RFA No.47 of 2006. The appeal was eventually dismissed. 5. Heard Mr. Digambar Sethi, learned counsel for the appellants. 6. Mr. Digambar Sethi, learned counsel for the appellants submits that in 1929 settlement ROR, the suit land was recorded in the names of Kinei Sethi son of Mani Sethi, Muli Sethi son of Sanei Sethi, Pandaba Sethi and Bhima Sethi, but in the remarks column, the names of Jai Pradhan, Gobinda Pradhan, Dai Pradhan and Sindhu Pradhan son of Burundu Pradhan had been reflected. They were in peaceful and continuous possession of the suit land. The land originally belonged to ex-intermediary. Status of the land is desahata dhoba jagir. After vesting of the estate, the OEA Collector could have settled the land in favour of the ancestors of the plaintiffs under Sec.8(2) of the Orissa Estates Abolition Act (in short, "OEA Act"). Plaintiffs are 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. 7. There is no pleading that the ancestors of the plaintiffs were the tenants under the ex-intermediary. In the settlement ROR of the year 1929, the suit land was recorded in the name of Kinei Sethi son of Mani Sethi, Muli Sethi and others as desahata dhoba jagir status. Neither the ancestors of the plaintiffs, nor the plaintiffs were rendering service as village servants. In view of the same, sub-section (2) of Sec.8 of the OEA Act cannot come to rescue of the plaintiffs. 8. The next question arises whether the plaintiffs can institute the suit for declaration of title by way of adverse possession. 9. 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 in Nabin Chandra Mohanta v. State of Orissa (R.S.A. No.396 of 2004 disposed of on 22.02.2019) 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. 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. The High Court is bound under Article 141 of the Constitution of India." 10. In the consolidation ROR, the land has been recorded in the name of the Government. No prayer has been made to set aside the consolidation ROR. 11. In State of Orissa v. Sibasankar Ray, 2017 (II) CLR 87, this Court held : "11. Notwithstanding the closure of consolidation operation and publication of record-of-right, the aggrieved party may institute the suit or approach the authority under Section 37 of the OCH & PFL Act. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of-right published by the consolidation authority, the simple suit for permanent injunction is not maintainable. The substantial question no.1 is answered accordingly." 12. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of-right published by the consolidation authority, the simple suit for permanent injunction is not maintainable. The substantial question no.1 is answered accordingly." 12. In the absence of any prayer to set aside the consolidation ROR, the suit is not maintainable. 13. In the wake of the aforesaid, the appeal is dismissed since the same does not involve any substantial question of law. There shall be no order as to costs.