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2019 DIGILAW 443 (ORI)

Madhusudan Mohanta v. State Of Orissa

2019-07-10

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title on the basis of adverse possession and permanent injunction. 2. An area of Ac.5.19 dec. of land pertaining to Hal Khata No.81, Hal Plot Nos.523, 524 of Mouza-Tangarani in the district of Keonjhar is the subject matter of dispute. 3. The case of the plaintiffs was that Ghasiram Mohanta, the fore-father of the plaintiffs, excavated a tank over the suit land in the year 1900 with the knowledge of the then Ruler of Keonjhar State to irrigate his adjoining lands. After death of Ghasiram, his sons were in possession of the tank. Thereafter, their legal heirs were in possession of the tank. They used to rear fish and use its water. They have renovated the tank. Thereafter, the plaintiffs are in possession of the tank peacefully, continuously and with the hostile animus to the defendants for more than the statutory period and as such perfected their title over the tank by way of adverse possession. Defendant no.2, Sarpanch of Bodapalasa Grama Panchayat has no title over the tank. He initiated a proceeding under Section 145 of Cr.P.C. By order dated 02.02.1988, the Executive Magistrate prohibited the parties to possess the tank until the right of the parties is decided in due course of law. The Asst. Director of Fisheries, Keonjhar has been appointed as receiver. With the factual scenario, the plaintiffs instituted the suit seeking the reliefs mentioned supra. 4. The defendant no.1 was set ex parte. Defendant no.2 filed written statement pleading inter alia that tank originally belongs to State of Orissa. The same had been transferred to Bodapalasa Grama Panchanyat ("G.P." in short). The G.P. was doing pisciculture. Plaintiffs have no semblance of right, title and interest over the same. 5. Steaming on the pleadings of the parties, learned trial court struck seven issues. Both the parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that the local people have interest over the tank. They are not parties to the suit. The suit suffers from non-joinder of necessary parties. The tank belongs to State. Plaintiffs have no title over the same. They have not perfected title by way of adverse possession. The unsuccessful plaintiffs filed T.A. No.14 of 1991 before the learned District Judge, Keonjhar, which was eventually dismissed. 6. They are not parties to the suit. The suit suffers from non-joinder of necessary parties. The tank belongs to State. Plaintiffs have no title over the same. They have not perfected title by way of adverse possession. The unsuccessful plaintiffs filed T.A. No.14 of 1991 before the learned District Judge, Keonjhar, which was eventually dismissed. 6. The appeal was admitted on the following substantial questions of law. (1) Whether the finding of adverse possession is legal or not? (2) Whether the conclusion of the courts below regarding transfer vis-a-vis the provisions of the Orissa Vesting of Properties (in Gram Sasans) Act, 1964 is legal or not? 7. Heard Mr.Ramakanta Mohanty, learned Senior Advocate for the appellants and Mr. Swayambhu Mishra, learned ASC for the State. 8. Mr. Mohanty, learned Senior Advocate for the appellants argued in vehemence that the tank was never transferred to the G.P. under the Orissa Vesting of Properties (in Grama Sasans) Act, 1964. Learned courts below committed manifest illegality in placing reliance on Ext.J, which is not a deed of transfer. 9. Per contra, Mr.Mishra, learned ASC submitted that plaintiffs have filed the suit for declaration of title by way of adverse possession. The initial possession of the plaintiffs over the tank was permissive. Surendra and Chandrasekhar had participated in the auction of the tank. Thus, the element of hostile animus is absent. Both the courts have concurrently held that plaintiffs had not perfected title by way of adverse possession. 10. Taking a cue from the decision of the apex Court in the case of Gurdwara Sahib Vrs. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669 , this Court in the case of Nabin Chandra Mohanta (since dead) through L.Rs. Vrs. State of Orissa and others, (R.S.A. No.396 of 2004, dismissed 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. 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 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. Thus the inescapable conclusion is that even if the plaintiffs are found to be in adverse possession, they cannot seek a declaration to the effect that such adverse possession has matured into ownership. 12. Furthermore, adverse possession is not a pure question of law, but a blended one of fact and law. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs 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. In Karnataka Board of Wakf Vrs. Govt. of India and others, (2004) 10 SCC 779 , the apex Court held : "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 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) 13. The date of entry into the suit land has not been mentioned. Learned appellate court held that plaintiffs admitted that Ghasiram Mohanta had excavated the tank with the permission of the then Ruler of Keonjhar State in order to provide irrigation facilities to his lands adjoining to the suit land. The possession of the plaintiffs' fore-father over the tank was permissive. 14. Permissive possession can never become adverse unless hostile animus is expressed at a particular time to the knowledge of the actual owner. The element of hostile animus is absent. 15. On a threadbare analysis of the evidence on record and pleadings, learned appellate court held that as per the terms of Ext.1, the plaintiffs' fore-father was not granted the right for exclusive use of the tank; rather the tank was excavated for the use of general public. As per the Government order dated 26.03.1959, Ext.J all the public tanks had been transferred to different Grama Panchayats and under Item 53 of Ext.J, the Tank in question was transferred to Grama Panchayat. D.W.2, Secretary of Grama Panchayat proved the resolution dated 29.1.1963, Ext.E. From Ext.E, it is evident that the tank was put to auction. As per the Government order dated 26.03.1959, Ext.J all the public tanks had been transferred to different Grama Panchayats and under Item 53 of Ext.J, the Tank in question was transferred to Grama Panchayat. D.W.2, Secretary of Grama Panchayat proved the resolution dated 29.1.1963, Ext.E. From Ext.E, it is evident that the tank was put to auction. Plaintiff no.1 being a ward member had signed the resolution vide Ext.E/4. Surendra Mohanta, father of the plaintiff nos.2 to 4 and husband of plaintiff no.11 and Chandra jointly took the tank in auction. Plaintiff and their ancestors had accepted the ownership of the Grama Panchayat over the tank. Further, they also took the tank in auction. The element of hostile animus is absent. There is no perversity in the said findings. 16. In view of the fact that Surendra Mohanta, father of plaintiff nos.2 to 4 and husband of plaintiff no.11 had participated in the auction and plaintiff no.1 was a signatory to the resolution of the Grama Panchayat that the tank was put to auction, the plaintiffs cannot turn round and take the plea that tank has not been transferred to the Grama Panchayat. The substantial questions of law are answered accordingly. 17. In the wake of aforesaid, the appeal sans merit, the same is dismissed. There shall be no order as to costs.