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2024 DIGILAW 64 (ORI)

State of Orissa v. J. Durga Prasad Rao

2024-05-20

A.C.BEHERA

body2024
JUDGMENT A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The respondent of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.03 of 1988 and he was the appellant before the 1st appellate court in the 1st appeal vide T.A. No.29 of 1990. 3. The appellants of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.03 of 1988 and they were the respondents in the 1st appeal before the 1st appellate court in T.A. No.29 of 1990. 4. The suit of the plaintiff (who is the respondent in this 2nd appeal) before the trial court vide T.S. No.03 of 1988 against the defendants (appellants in this 2nd appeal) was a suit for declaration and permanent injunction. 5. The case of the plaintiff before the trial court in the suit vide T.S. No.03 of 1988 against the State and Tahasildar (defendants) was that, in the year 1949, a company known as Development Co-operative Ltd. undertook constructions for a model colony at Gapabandhu Nagar, Berhampur in order to provide dwelling houses with other amenities such as roads, parks etc. to the inhabitants of the same. That development company obtained approval from Berhampur Municipality for laying out plan. The mother of the plaintiff purchased a piece of land appertaining to plot no.13 of the said planned area of the development company. In the year 1951, Development Co-operative merged with 'Gapabandhu Nagar Building Co-operative Society', in which, the purchasers of the house of 'Gapabandhu Nagar' colony including the mother of the plaintiff became the members. After construction of buildings, the Gapabandhu Nagar Building Co-operative Society handed over the possession of the houses to its all members including the mother of the plaintiff and accordingly, mother of the plaintiff occupied her house at Gapabandhu Nagar Colony, Berhampur on 05.02.1953. Unfortunately, the mother of the plaintiff died in the year 1964 leaving behind her husband and children including the plaintiff. In its next year, i.e., in the year 1965, the father of the plaintiff also died leaving behind the plaintiff along with his other children and after the death of the father of the plaintiff, the plaintiff became 'Karta' of his joint family. 6. In its next year, i.e., in the year 1965, the father of the plaintiff also died leaving behind the plaintiff along with his other children and after the death of the father of the plaintiff, the plaintiff became 'Karta' of his joint family. 6. In the approved lay out plan in favour of the Gapabandhu Nagar Building Co-operative Society, there were distinct and separate spaces for parks. Out of which, one space for Park is at the front of the house of the plaintiff. When Gapabandhu Nagar Building Co-operative Society could not able to construct the parks, as it defuncted, for which, the space, which was in front of the house of the plaintiff remained vacant. Therefore, in the year 1953, the father of the plaintiff as well as the plaintiff occupied that vacant space meant for park in front of their house and used the same for their own purposes and accordingly, since 1953 till date, the said properties, i.e., the suit properties in front of the house of the plaintiff is under the occupation of the plaintiff. The plaintiff had/has been occupying the suit properties continuously since time of his father, for which, he (plaintiff) has perfected his title over the suit properties through adverse possession. The plaintiff had/has been using the suit properties raising flower garden and parking place. But, in the year 1987, Berhampur Municipality served a notice on the plaintiff to vacate the suit properties, but, he (plaintiff) gave reply disclaiming the right of the Municipality on the same and claiming his title thereon through adverse possession. Thereafter, Berhampur Municipality remained silent without taking any step. But, in the year 1988, the plaintiff found that, the local Revenue Inspector is taking measurement of the suit properties occupied by the plaintiff with a view to laying foundation on the same on behalf of the State, though State has no right over the suit properties. Thereafter, Berhampur Municipality remained silent without taking any step. But, in the year 1988, the plaintiff found that, the local Revenue Inspector is taking measurement of the suit properties occupied by the plaintiff with a view to laying foundation on the same on behalf of the State, though State has no right over the suit properties. When the defendant-State through its Revenue Inspector tried to claim its ownership over the suit properties creating disturbances in the possession of the plaintiff, then, the plaintiff approached the civil court by filing a suit vide T.S. No.03 of 1988 seeking exemption of the service of statutory notice under Section 80(1) of the C.P.C. as per Section 80(2) of the C.P.C. praying for declaration of his title over the suit properties through adverse possession against the defendants and to injunct the defendants permanently from interfering in his possession over the suit properties. 7. Having been noticed from the trial court in the suit vide T.S. No.03 of 1988 filed by the plaintiff, the defendants filed their written statement denying the averments made by the plaintiff in the plaint taking their stands specifically that, the suit land is Government land and the record of right of the suit land as per Sabik and Hal settlement stand in the name of the State(defendant no.1). The State has not transferred the suit properties to any authority or person. For which, neither the Development Co-operative Ltd. nor the Gopabandhu Nagar Building Cooperative Society or the plaintiff had/has any right, title, interest and possession over the same. The suit properties have been recorded with 'Kissam' as 'Patita' in the RoR, to which, the plaintiff has not raised any objection. The suit properties were/are neither under the possession of the plaintiff nor under the possession of his any family members or the Cooperative Society. For which, the Co-operative Society had no authority to reserve the suit land for the purpose of park. Therefore, neither the father of the plaintiff nor the plaintiff has perfected their title over the suit properties through adverse possession. The suit land being a Government land, the same was kept reserved for construction of Revenue Inspector's Circle Office. The P.W.D. has taken up the said construction works on the same. Therefore, neither the father of the plaintiff nor the plaintiff has perfected their title over the suit properties through adverse possession. The suit land being a Government land, the same was kept reserved for construction of Revenue Inspector's Circle Office. The P.W.D. has taken up the said construction works on the same. The suit properties are the properties of the State, for which, Berhampur Municipality had no authority to issue any notice to the plaintiff in respect of the suit properties. The State Government being the owner of the suit properties has its own right for using the same for any purpose as per its sweet will. As the suit properties stand in the name of the Government and the 'Kissam' thereof is 'Patita', for which, no order of injunction can be passed against the defendants for using the suit properties. Therefore, the suit of the plaintiff is not maintainable. The plaintiff is not entitled for any relief in respect of the suit properties against the defendants. Therefore, suit of the plaintiff is liable to be dismissed against the defendants with cost. 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six numbers of issues were framed by the trial court in the suit vide T.S. No.03 of 1988 and the said issues are:- ISSUES 1. Whether the plaintiff has nay right, title for the suit schedule land? 2. Whether the plaintiff has perfected his right over the suit schedule land by adverse possession? 3. Whether the settlement entry is binding on the plaintiff? 4. Whether the suit is maintainable in the absence of a notice under Section 80 C.P.C? 5. Whether the suit as framed is maintainable in law? 6. What relief the plaintiff is entitled to? 9. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants in the suit vide T.S. No.03 of 1988, he (plaintiff) examined three witnesses from his side including him as P.W.1 and relied upon the documents vide Exts.1 to 6(a). On the contrary, in order to defeat/nullify the suit of the plaintiff, the defendants examined one witness from their side, i.e., to the Revenue Inspector as D.W.1 and they (defendants) relied upon the documents vide Exts.A to D on their behalf. 10. On the contrary, in order to defeat/nullify the suit of the plaintiff, the defendants examined one witness from their side, i.e., to the Revenue Inspector as D.W.1 and they (defendants) relied upon the documents vide Exts.A to D on their behalf. 10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the trial court in the issues against the plaintiff and in favour of the defendants, the trial court dismissed the suit of the plaintiff vide T.S. No.03 of 1988 on contest against the defendants as per its judgment and decree dated 06.02.1990 and 20.02.1990 respectively assigning the reasons that, when the undisputed documents vide Exts.A to D filed and proved on behalf of the defendants, i.e., RoR, village map, sketch map and copy of the yadast are going to show that, the suit properties have been recorded in the name of the State/Government as 'Sarbasadharana' but, the plaintiff neither pleaded nor proved the essential requisites/criterias of adverse possession in order to establish his title over the suit properties through adverse possession, for which, the plaintiff is not entitled for the relief, i.e., declaration of title over the suit properties through adverse possession as well as injunction against the defendants. 11. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.03 of 1988 on contest against the defendants as per its judgment and decree dated 06.02.1990 and 20.02.1990 respectively, he(plaintiff) challenged the same by preferring the 1st appeal vide T.A. No.29 of 1990 being the appellant against the defendants arraying the defendants as respondents. After hearing from both the sides, the 1st appellate court allowed that 1st appeal of the plaintiff vide T.A. No.29 of 1990 on contest as per its judgment and decree dated 12.04.1991 and 25.04.1991 respectively and set aside the judgment and decree dated 06.02.1990 and 20.02.1990 respectively passed by the trial court in the suit vide T.S. No.03 of 1988 and declared the title of the plaintiff over the suit properties assigning the reasons that, the plaintiff has established that, he is in possession over the suit properties since 1953 and the suit properties are not the properties of the State, for which, he(plaintiff) has perfected his title over the suit properties through adverse possession, but, the respondents (defendants) are the tress-passers of the same. 12. On being aggrieved with the aforesaid judgment and decree dated 12.04.1991 and 25.04.1991 respectively passed by the 1st appellate court in the 1st appeal vide T.A. No.29 of 1990 in favour of the plaintiff and against the defendants declaring the title of the plaintiff over the suit properties through adverse possession, the defendants challenged the same by preferring this 2nd appeal being the appellants against the plaintiff by arraying the plaintiff as respondent. This 2nd appeal was admitted on formulation of the following substantial question of law, i.e.,:- 'Whether a suit for declaration of title by adverse possession is maintainable?' 13. I have already heard from the learned counsel for the appellant/State, i.e., from the leaned Additional Government Advocate only, as none appeared from the side of the respondent/plaintiff. 14. The plaintiff has filed the suit vide T.S. No.03 of 1988 against the defendants, i.e., against the State and Tahasildar-Berhampur praying for declaration of his title over the suit properties through adverse possession. 15. The above plea of the plaintiff for declaration of his title over the suit properties through adverse possession against the defendants, i.e., against the State and Tahasildar itself is an indirect admission of plaintiff to the title of the defendant. 1 (State) over the suit properties. Because, a party can plead adverse possession, only when he/she admits the title of the other party over the suit properties. 16. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) 2008(4) CCC-239(P&H) : Gurubax Singh (dead) by LRs. vrs. 1 (State) over the suit properties. Because, a party can plead adverse possession, only when he/she admits the title of the other party over the suit properties. 16. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) 2008(4) CCC-239(P&H) : Gurubax Singh (dead) by LRs. vrs. Karnail Singh-The plea of adverse possession of the defendants necessarily implies the admission of the title of the plaintiff. (ii) 2005(4) Civil Law Times-378(P&H) : Sultan and Ors. vrs. Kasturi and Ors.-Plea of adverse possession of the defendant is an indirect admission of ownership of plaintiff. (Para-8) (iii) 2005(3) CCC-167 (Madras) : Pappayammal vrs. Palanisamy and Ors.-A party can plead adverse possession, only-when, he admits that, another party has got title. So, applying the above clarified propositions of law enunciated in the ratio of the aforesaid decisions to this suit/appeal at hand, it is held that, the plaintiff has indirectly admitted the ownership of the State (defendant no.1) over the suit properties. Because, he (plaintiff) has claimed his title through adverse possession over the suit properties admitting the title of the defendant no.1(State) on the same. 17. It is the settled propositions of law that, mere possession howsoever long, the same itself does not necessarily mean that, it is adverse to the true owner unless the classical requirements for acquisition of title through adverse possession have been pleaded and proved/established through legally admissible evidence. 18. The above principles of law has already been clarified in the ratio of the following decisions of the Apex Court:- (i) 2011(I) CLR (S.C.)-264 : Chatti Konati Rao and Ors vrs. Palle Venkata Suba Rao-Adverse Possession-Mere possession however long does not necessarily mean that, it is adverse to the true owner. Classical requirements of acquisition of title by adverse possession is that, such possessions are denial of the true owner's title-Necessary facts / essentials for establishing title through adverse possession are to be pleaded and proved/established.(Paras-12 and 13) (ii) 2011(II) OLR-987 : Bana Naik and another vrs. Classical requirements of acquisition of title by adverse possession is that, such possessions are denial of the true owner's title-Necessary facts / essentials for establishing title through adverse possession are to be pleaded and proved/established.(Paras-12 and 13) (ii) 2011(II) OLR-987 : Bana Naik and another vrs. Dinamani Behera-Adverse Possession-Mere long continuance possession does not amount to adverse possession, on the basis of which the possessor can claim title over the property in question-Hostile animus is an essential ingredient to show that the possession is adverse against the true owner-A party claiming title by way of adverse possession unless proves that he is in possession over the land adversely to the interest of the true owner more than the statutory period openly as of right and peaceable without any hindrance to the knowledge of the true owner, specifically mentioning starting point of such adverse possession-In order to prove the aspect for claiming title by way of adverse possession, there must be pleadings of the concerned party to the effect. (Para-4) 19. Here in this suit/appeal at hand, when the plaintiff has claimed his title over the suit properties through adverse possession and when the undisputed revenue records of the suit properties are in the name of the State/Government, then at this juncture in order to get the decree of declaration of title of the plaintiff over the suit properties through adverse possession, it is the duty of the Court to act greater seriousness/effectiveness with care and circumspection, because such declaration of title may lead to the destruction of right/title of the State over the suit properties. 20. On this aspect, the propositions of law has already been clarified by the Apex court in the ratio of following decisions:- (i) 2023(3) CCC(S.C.)-201 : Government of Kerala and another vrs. Joseph and others-Adverse Possession- When land subject of proceedings, wherein adverse possession has been claimed belongs to Government, court is duty bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of State to immovable property. Plea of adverse possession must be pleaded with proper particulars, as such, when possession became adverse, court is not to travel beyond pleadings to give any relief. (ii) (2000) 5 SCC-652 : State of Rajasthan vrs. Plea of adverse possession must be pleaded with proper particulars, as such, when possession became adverse, court is not to travel beyond pleadings to give any relief. (ii) (2000) 5 SCC-652 : State of Rajasthan vrs. Harphool Sing(dead)Through LRs.-Adverse Possession-Where perfection of title by adverse possession is claimed in respect of public property, in that case, the question requires more effective and serious consideration, because it involves the possible destruction of the rights and title of the State. 21. As per law, in order to establish title through adverse possession, the plaintiffs or defendants shall specifically plead and prove the date, on which, their possession became adverse to the other side and the date, on which, their adverse possession on the suit properties ripened / matured to title, because a person claiming adverse possession has no equity in his favour, as he is trying to defeat the rights of the true owner. Therefore, it is for him/her to clearly plead and prove the facts necessary to establish title through adverse possession. Because, merely a bald statement that, there is adverse possession is not enough to set up the plea of adverse possession. It is required for him/her under law to clearly state in the pleadings, when, i.e., on which date his/her possession was started and when, i.e., on which date, his/her possession on the suit properties became adverse against its owner repudiating the title of the owner and when, i.e., on which date his/her adverse possession matured/ripened to his/her title. 22. On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:- (i) 2017(3) CCC-232(Karnataka) : Chinnappa @ Kumarappa since dead by his Lrs and Ors vrs. Chinnappa Akkayamma Akkayamma since Deceased by His Lrs and Anr.-Adverse Possession-Party who claims right by adverse possession has to specifically plead, date on which, his possession became adverse to that of his adversary. (ii) 2017(II) Civil Law Times(S.C.)-185 : T. Ravi and another vrs. B. Chjinna Narasimha and others-Limitation Act, 1963.-Adverse Possession-Merely a bald statement that, there was adverse possession is not enough to set up a plea of adverse possession-It has to be clearly set out, from which date, it commenced and became hostile, when there was repudiation of title. (iii) 2011(I) OJR-60(S.C.) : Chatti Konati Rao and Ors vrs. B. Chjinna Narasimha and others-Limitation Act, 1963.-Adverse Possession-Merely a bald statement that, there was adverse possession is not enough to set up a plea of adverse possession-It has to be clearly set out, from which date, it commenced and became hostile, when there was repudiation of title. (iii) 2011(I) OJR-60(S.C.) : Chatti Konati Rao and Ors vrs. Palle Venkata Suba Rao.-Adverse Possession-A person pleading adverse possession has no equities in his faovur and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. (iv) 2020(I) Civil Court Cases-840(Allahabad) : Iswarchand vrs. Board of Revenue and others-Adverse Possession-There is no specific date in the plaint, on which, possession became adverse-To succeed in a claim based on adverse possession, plaintiff has to specifically aver, the date, wherefrom his possession was open and hostile and it continued as such for continuous period required for perfecting rights thereby.(Para-21) (v) 2017(4) Civil Court Cases-595(H.P.) : Khazan singh vrs, Ravinder Singh- Adverse Possession-Burden is upon the defendant to prove as to at what point of time his possession became hostile to the plaintiff and what point of time it matured into title by way of adverse possession after lapse of 12 years. (vi) 2017(II) CLR (S.C.)-1097 : Dharampal (Dead) Thr. LRs. vrs. Punjab Wakf Board & Ors.-(Paras-39 and 40) - Adverse Possession-From which date, possession became adverse to the plaintiff not pleaded. Date of ripening of adverse possession to tile was also not pleaded. Only the averments were that, the defendant was in possession through his father since 1953, not sufficient to establish title through adverse possession. (vii) 2020(3) C.C.C.-475(S.C.) :- Narasamma and others vrs. A. Krishnappa(Dead) through LRs. (Three Judges Bench) -Adverse Possession-duty of the court. In order to establish adverse possession, inquiry is required to be made into starting point of such adverse possession and when recorded owner got dispossessed would be crucial-When plea of adverse possession is lacking in all material particulars-Plea of adverse possession fail. 23. A. Krishnappa(Dead) through LRs. (Three Judges Bench) -Adverse Possession-duty of the court. In order to establish adverse possession, inquiry is required to be made into starting point of such adverse possession and when recorded owner got dispossessed would be crucial-When plea of adverse possession is lacking in all material particulars-Plea of adverse possession fail. 23. Here in this suit at hand, there is no pleadings or evidence on behalf of the plaintiff to show the date of starting of adverse possession over the suit properties denying/repudiating the title of the owner and the date of ripening of his adverse possession to title, but, only, he (plaintiff) has pleaded baldly that, he has been possessing the suit properties since the time of his father, i.e., since the year 1953 without stating the date of starting of his possession, the date on which, his possession became adverse to the defendant no.1(State) and the date, on which date, his such adverse possession ripened/matured to title. For which, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it cannot be held that, the plaintiff has perfected his title over the suit properties through adverse possession. Because, he (plaintiff) has failed to plead and prove the classical requirements of adverse possession. Therefore, the judgment and decree passed by the 1st appellate court in T.A. No.29 of 1990 declaring the title of the plaintiff over the suit properties through adverse possession and also declaring the defendants as tress passers of the suit properties cannot be sustainable under law. For which, the 1st appellate court should not have set aside the judgment decree of the dismissal of the suit of the plaintiff vide T.S. No.03 of 1988 passed by the trial court. 24. So, there is justification under law for making interference with the judgment and decree passed by the 1st appellate court in T.A. No.29 of 1990 through this 2nd appeal filed by the defendants. 25. Therefore, there is merit in the appeal of the appellants(defendants). The same must succeed. 26. In result, this 2nd appeal filed by the appellants(defendants) is allowed. 27. The judgment and decree dated 12.04.1991 and 25.04.1991 respectively passed by the 1st appellate court in T.A. No.29 of 1990 are set aside. 28. 25. Therefore, there is merit in the appeal of the appellants(defendants). The same must succeed. 26. In result, this 2nd appeal filed by the appellants(defendants) is allowed. 27. The judgment and decree dated 12.04.1991 and 25.04.1991 respectively passed by the 1st appellate court in T.A. No.29 of 1990 are set aside. 28. The judgment and decree regarding the dismissal of the suit of the plaintiff vide T.S. No.03 of 1988 passed by the trial court dated 06.02.1990 and 20.02.1990 respectively are confirmed.