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2019 DIGILAW 412 (ORI)

Biranchi Narayan Kuanr v. Khetra Rana

2019-06-20

A.K.RATH

body2019
JUDGMENT A. K. Rath, J. - This is a defendants' appeal against confirming judgment. 2. Plaintiffs-respondents instituted suit for declaration of title by way of adverse possession and permanent injunction. The case of the plaintiffs is that they are the sons of Keshaba Rana. The defendants are the legal heirs of Harihara Kuanr. In the 4th Settlement, R.O.R. Khata No.7 of Mouza-Malpada was recorded in the name of Harihara Kuanr. Their father was in possession of the land since 1953. He exercised all acts of ownership till his death. After his death, they are in possession of the same. The certified copy of the order passed by the Additional District Magistrate, Balangir in O.L.R. Lease Case No.23 of 1977 shows that their father was in possession since 1953. While matter stood thus, father of the defendants initiated Revenue Misc. Case No.2 of 1977 under section 23A of Orissa Land Reforms Act, 1960 ('OLR Act' in short) before the S.D.O., Sonepur. The S.D.O., Sonepur declared the possession of their father unauthorised and directed restoration of possession in favour of Harihara Kuanr. Plaintiffs along with their mother preferred O.L.R. Appeal No.23 of 1980 before the A.D.M., Balangir. By order dated 27.5.1980, the A.D.M. allowed the appeal with a finding that the appellants have perfected title by way of adverse possession. Harihara Kuanr preferred O.L.R. Revision No.60 of 1980 before the Special Officer, Land Reforms, Sambalpur. He withdrew the same on 21.3.1983. The order passed by the A.D.M., Balangir in OLR Appeal No.23 of 1980 has attained finality. Again in the year 1981, father of the defendants initiated a proceeding under section 145 Cr.P.C., 1973 against their mother. Their possession was declared in the said proceeding. Thereafter they along with their mother filed Mutation Case No.85 of 1991 before the Tahasildar, Sonepur, which was allowed. The Tahasildar directed preparation of ROR in their name and mother. Defendant nos.1 and 2 filed Mutation Appeal No.21 of 1991 before the Sub-Collector, Sonepur. The same was allowed. Thereafter, they filed Mutation Revision No.47 of 1995 before the Commissioner of Land Records and Settlement, Orissa, Cuttack. In the revision, a compromise was entered into between the parties and accordingly a compromise petition was filed on 3.7.1996. The defendant nos.1 and 2 admitted the title of the plaintiffs over the suit land and prayed to prepare ROR in their name and mother. In the revision, a compromise was entered into between the parties and accordingly a compromise petition was filed on 3.7.1996. The defendant nos.1 and 2 admitted the title of the plaintiffs over the suit land and prayed to prepare ROR in their name and mother. Since settlement operation was going on, ROR could not be prepared. They filed Rent Case No.72 of 1998 before the Settlement Authority. Defendant nos.1 and 2 gave their consent to prepare ROR in their name and mother. But then, defendants preferred appeal No.46 of 1998 before the Settlement Officer, Sambalpur. The appeal was allowed. The appellate authority directed for preparation of ROR in the name of the defendants. With the factual scenario, they instituted suit seeking the reliefs mentioned supra. 3. Though the defendants filed written statement, but subsequently they were set ex parte. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf, nine documents had been exhibited. Learned trial court decreed the suit holding that plaintiffs had perfected title by way of adverse possession. Unsuccessful defendants filed Title Appeal No.27 of 2001 before the learned Addl. District Judge, Sonepur, which was eventually dismissed. 4. The appeal was admitted on the following substantial questions of law. "(1) Whether the learned First Appellate Court has failed to consider the aspect that there was sufficient ground for setting aside the ex parte judgment and decree? (2) Whether the plea of adverse possession by a non-tribal person is legally maintainable against a tribal person? (3) Whether the plaintiffs can institute the suit for declaration of title on the basis of adverse possession?" 5. Mrs.Padmaja Pattnaik, learned counsel for the appellants submits that the land belongs to plaintiffs. There is no pleading that defendants have perfected their title by way of adverse possession. The compromise entered into between the parties before the Settlement Officer is not binding on the parties. 6. Per contra, Mr.Tanmay Mishra on behalf of Mr.M.K. Mishra, learned Sr. Advocate for the respondents submits that Keshaba Rana, father of the plaintiffs was in possession of the suit land since 1953 peacefully, continuously and with the hostile animus of the defendants. After his death, the plaintiffs are in possession of the suit land. Before the Commissioner, Land Records and Settlement, Orissa, Cuttack, the parties had entered into a compromise. Accordingly, the Commissioner directed to prepare ROR in the name of the plaintiffs. After his death, the plaintiffs are in possession of the suit land. Before the Commissioner, Land Records and Settlement, Orissa, Cuttack, the parties had entered into a compromise. Accordingly, the Commissioner directed to prepare ROR in the name of the plaintiffs. The same is binding on the parties. Both the courts have concurrently held that plaintiffs have perfected title by way of adverse possession. There is no perversity in the said findings. His alternate submission is that even if the plaintiffs cannot institute the suit on the basis adverse possession, they cannot be evicted from the suit land without due process of law. 7. An identical matter came up for consideration before this Court in the case of Nabin Chandra Mohanta vs. State of Orissa (R.S.A. No.396 of 2004 disposed of on 22.02.2019). Taking a cue from the decision of the apex Court 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) 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....." 8. 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. 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 "necvi, 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. Reliance placed on the compromise petition filed before the Commissioner, Land Records and Settlement, Orissa, Cuttack in Revision Case no.47 of 1995 is totally misplaced. The date of entry into the suit land has not been mentioned. Reliance placed on the compromise petition filed before the Commissioner, Land Records and Settlement, Orissa, Cuttack in Revision Case no.47 of 1995 is totally misplaced. The Commissioner, Land Records and Settlement, Cuttack has no jurisdiction to decide the title of the parties and direct preparation of ROR. The Commissioner being a creature of statute cannot travel beyond the statute. Both the courts did not delve deep into the same and abruptly came to a finding that plaintiffs have perfected title by way of adverse possession. 10. The lower appellate court held that - "If there was any sufficient reason for the defendants appellants to remain absent on the aforesaid dates of hearing, in that event they could have moved the lower court for setting aside the ex parte judgment and decree. But they have not done so. In the appeal in question there is no material showing sufficient ground in the absence of defendants on the date of hearing and no material is produced to show any illegality committed by the lower court in not granting time. Thus, the lower court is justified in passing the ex parte order." 11. In Bhanu Kumar Jain vs. Archana Kumar and another, (2005) 1 SCC 787 , the apex Court held that when an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously, but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true. However, Explanation I appended to the said provision does not suggest that the converse is also true. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the ground that (i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour and (ii) The suit could not have been posted for ex-parte hearing. Although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the exparte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away, if the same is not in derogation or contrary to any other statutory provisions. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo thereupon be fixed unless the statute expressly or by necessary implication says so. When an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law. The dichotomy can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. The "Explanation" appended to Order 9 Rule 13 of the Code shall receive a strict construction. 12. In view of the authoritative pronouncement of the apex Court in the case of Bhanu Kumar Jain, the appellate court committed a manifest illegality in dismissing the appeal for non availability of the remedy u/o 9 Rule 13 CPC. 13. Resultantly the judgment and decree of the courts below are set aside. The appeal is allowed. The suit is dismissed. There shall be no order as to costs.