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2019 DIGILAW 426 (ORI)

Ramanand Sahu v. State Of Orissa

2019-06-28

A.K.RATH

body2019
JUDGMENT A.K.Rath, J. - This appeal at the instance of the plaintiff assails the reversing judgment of the learned Addl. District Judge, Gajapati, Parlakhemundi in Title Appeal No.18 of 1996 in a suit for declaration of title over Schedule-I to V immovable property, orders of eviction passed by the Tahasildar, R. Udayagir, defendant no.2, in L.E Case Nos.370/1991 and 531/1991 are illegal, permanent injunction and other consequential reliefs. 2. Case of the plaintiff was that he had purchased the suit property from different persons. He was the absolute owner in possession of the suit property. In the year 1974, the suit lands were recorded in the name of the Government. While matter stood thus, L.E. Case No.370 of 1991 was initiated against him under Section 9 of the Orissa Prevention of Land Encroachment Act, 1971 ('OPLE Act'). In Certificate Case No.10 of 1993, the plaintiff was served notice in L.E Case No.531 of 1991. When B.D.O., Nuagada tried to disturb his possession, he instituted the suit seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, defendants entered contest and filed a written statement denying the assertions made in the plaint. It was pleaded that the suit lands are Government lands. The area was not surveyed prior to 1971. The ROR was published in the year 1981. Schedule-I is recorded in the name of the Government. Since the plaintiff encroached upon Schedule-I land, he was evicted from the same. Schedule-II is the Patita land, which is recorded in the name of the Government. One Debaraj Panigrahi was in possession of the suit land. LE Case No.800 of 1989 was initiated against him. Subsequently the plaintiff was in possession of the said land. Encroachment proceeding was initiated against him. Schedule III and IV lands are recorded in the name of the Government under Anabadi khata. The plaintiff was in unauthorized occupation of Schedule III and IV lands for which an encroachment proceeding was initiated against him. He was evicted from the suit lands. In the year 1991, he again unlawfully occupied the suit lands. Therefore, another encroachment proceeding was initiated against him. Schedule-V land is Patita Anabadi land. The same is recorded in the name of the Government. 4. On the inter-se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. In the year 1991, he again unlawfully occupied the suit lands. Therefore, another encroachment proceeding was initiated against him. Schedule-V land is Patita Anabadi land. The same is recorded in the name of the Government. 4. On the inter-se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the plaintiff is in possession of the suit land since the date of purchase. Plaintiff's vendors were the true owners of the suit land. Plaintiff had purchased the suit land by means of unregistered sale deeds and acquired title by way of adverse possession. Felt aggrieved, defendants filed Title Appeal No.18 of 1996 before the learned Addl. District Judge, Gajapati, Parlakhemundi. Learned appellate court held that the suit lands are Government lands. The so-called vendors were not the owners of the suit land. Plaintiff is an encroacher of the Government land. He has not perfected title by way of adverse possession. Held so, it allowed the appeal. 5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.A, B,E, F and G of the appeal memo. The same are - "A) Whether the Mortgage Deed dated 23.2.1940 (Ext.1), Sale Deeds (Ext.5,7 and 11) are admissible in evidence under Order 7 Rule 18(1) CPC ? B) In the absence of denial by the defendants in their W.S and advancing any plea that the Exts.5,7 and 11 are fabricated, whether the learned Appellate Court was correct in coming to conclusion that those documents are fabricated ? E) Whether the Appellate Court was justified in not coming to a lawful conclusion that the orders passed by the Tahasildar in Land Encroachment cases against the appellant are nullity and void being without jurisdiction ? F) Whether it being not the case of the parties that the sale deeds (Exts.5,7 and 11) are fabricated, it is open for the learned lower Appellate Court to make out a third case beyond the pleadings of the parties ? F) Whether it being not the case of the parties that the sale deeds (Exts.5,7 and 11) are fabricated, it is open for the learned lower Appellate Court to make out a third case beyond the pleadings of the parties ? G) Whether the findings of the learned lower Appellate Court that the possession of the vendors of the plaintiff cannot be tagged with the possession of the plaintiff for calculating the period of possession, is sustainable in view of the fact that the averments in the plaint with regard to possession of the vendors of the plaintiff from the time of their fore-fathers has not been traversed in the written statements and as such is an admitted case which requires no further proof and the entire written statement is based on the ROR published in 1982 and does not relate to any period prior to the publication of ROR in question ? 6. Heard Mr. Pratatp Chandra Chhinchani, learned counsel for the appellant and Mr. Swayambhu Mishra, learned ASC. 7. Mr. Chhinchani, learned counsel for the appellant submitted that the plaintiff had purchased the properties mentioned in Schedule-I to V by means of unregistered sale deeds, vide Exts.5,7 and 11. Defendants had not challenged the same. Learned appellate court committed a manifest error in holding that the documents are fabricated one. Finding of the learned appellate court that the disputed lands in the proceeding under Section 145 Cr.P.C , 1973do not co-relate to the lands in Ext.2 is perverse. The plaintiff had furnished the boundary description of the land, which tallies with the schedule lands in a proceeding under Section 145 Cr.P.C., 1973 Learned appellate court committed an error in not placing reliance on the mortgaged deed of the year 1940, Ext.1, on the ground that it was not relied upon. There was no objection to the admissibility of the documents. On the basis of the sale deeds and the mortgage deed, Ext.1, certified copy of the order in Exts.2 and 3, notices issued in L.E Case No.370 of 1991, Exts.10,16 and 18 and the evidence of the plaintiff, learned appellate court ought to have held that Raghunath Patra, Bibhisan Patra and Debraj Panigrahi were in possession of the suit lands peacefully, continuously and to the hostile animus of the true owners. Their possession ought to have been tagged with the possession of the plaintiff. Their possession ought to have been tagged with the possession of the plaintiff. The plaintiff has perfected title by way of adverse possession. By the time the proceeding under the OPLE Act was initiated, the character of the suit lands was no more of Government land. The proceeding was illegal. 8. Per contra, Mr. Mishra, learned ASC submitted that there was no pleading as to whether the vendors of the plaintiff had title over the suit land. Since the vendors had no title over the property, unregistered sale deeds, Exts.5,7 and 11 will not clothe the plaintiff with valid title over the property. No reliance can be placed on the unregistered sale deed. Valuation of the suit property was more than Rs. 100/-. It requires compulsory registration under the Indian Registration Act. Learned appellate court is justified in not placing reliance on Exts.5,7 and 11. The report of the Revenue Inspector dated 27.5.1991, Ext.19, reveals that the possession of the plaintiffs was not prior to 1991. The plaintiff had failed to prove that he was in possession of the suit lands prior to 1991. There was no pleading that the plaintiff has perfected title by way of adverse possession. 9. Plaintiff asserted that he had purchased Schedule-I property from one Rathunath Patra, Mutha Head of Nuagada Mutha. On an anatomy of the pleadings and evidence on record, learned appellate court came to hold that there is no pleading that Schedule-I property was purchased by means of a registered sale deed. Sale deed was not produced in the court on the plea that the same was filed in a proceeding under Section 145 Cr.P.C., 1973 and not returned to him. If it was a registered sale deed, he could have obtained the certified copy thereof. It is difficult to co-relate to the disputed land described in the proceeding under Section 145 Cr.P.C., 1973 and the schedule of the land. Ext.5 is an unregistered sale deed said to have been executed by one Smt. Purnabasi Panigrahy on 28.1.1978 for a consideration of Rs. 1200/- in respect of Schedule-II property. The document had not seen the light of the day till it was produced in the court. There is no pleading about the sale deed. Ext.5 is an unregistered sale deed said to have been executed by one Smt. Purnabasi Panigrahy on 28.1.1978 for a consideration of Rs. 1200/- in respect of Schedule-II property. The document had not seen the light of the day till it was produced in the court. There is no pleading about the sale deed. With regard to Schedule-III property, though plaintiff had stated that he had purchased the same by means of unregistered sale deed dated 28.2.1987, but he had not produced the same. Unregistered sale deed dated 25.3.1968, Ext.7, said to have been executed by one Bhibisana Paik in respect of Schedule-IV. The same had seen the light of the day when it was exhibited. With regard to Schedule-V property, he deposed that he had purchased the same by means of unregistered sale deed of the year 1961, but the same was not produced. Only two unregistered sale deeds had been produced by the plaintiff in respect of Schedule-II and IV. Though plaintiff had taken a plea that he had purchased the suit lands and obtained sale deeds from his vendors, all the sale deeds are unregistered. Burden lies on the plaintiff to prove that his vendors had title over the suit property. The ROR was published in the name of the State in 1982. Plaintiff had not admitted that the lands are Government land. He had not pleaded the acquisition of title by prescription. The suit lands are Government lands and rightly the proceeding in encroachment cases had been initiated against him for eviction. The plaintiff was aged about 16 years in the year 1961. Thus it is not believable that at the age of 16, he had flourished in his medical profession and acquired Schedule-III land in the year 1961. None of the plaint schedule lands can be said to be in possession for more than thirty years immediately proceeding the filing of the suit. Plaintiff has not perfected title by way of adverse possession. 10. Sale deeds, Ext.5,7 and 11 are unregistered deeds. Valuation of the suit was more than Rs. 100/-. The same requires compulsory registration under section 17 of the Indian Registration Act. There was neither any evidence nor pleading that vendors of the plaintiff had title over the suit property. Plaintiff has not perfected title by way of adverse possession. 10. Sale deeds, Ext.5,7 and 11 are unregistered deeds. Valuation of the suit was more than Rs. 100/-. The same requires compulsory registration under section 17 of the Indian Registration Act. There was neither any evidence nor pleading that vendors of the plaintiff had title over the suit property. The settlement ROR had been published in the name of the Government; whereafter encroachment case under the OPLE Act was initiated against him for eviction. Learned appellate court is fully justified in negativing the claim of the plaintiff. There is no perversity in the finding. 11. Furthermore, the plea based on title and adverse possession is mutually inconsistent. The plaintiff has claimed title over the suit property by way of purchase and simultaneously he claims title by way of adverse possession. In Annasaheb Bapusaheb Patil and others vs. Balwant alias Balasaheb Babusaheb Patil (dead) By Lrs. and heirs and others, (1995) 2 SCC 543 , the apex Court made an in-depth analysis of claim of title and claim to adverse possession over the property. The apex Court held : "Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all." 12. 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 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." 13. The apex Court in the case of L.N. Aswathama and another vs. P. Prakash (2009) 13 SCC 229 held : "To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence." (Emphasis laid) 14. The substantial questions of law are answered accordingly. 15. In the wake of the aforesaid, the appeal fails and is dismissed. There shall be no order as to costs.