HIGH COURT OF ORISSA: CUTTACK
SA No.229 of 2000
State of Orissa & another
PRESENT: DR. JUSTICE A.K.RATH
Citation:AIR 2017(NOC) 229 Orissa
Date of judgment: 20.01.2017
Dr. A.K.Rath, J Plaintiff is the appellant against the confirming judgment in a suit for declaration of right of occupancy and recovery of possession.
2. The case of the plaintiff is that Bhupendranath Bhuyan, the father of the plaintiff, was inducted as a tenant by the Ex– landlord of Burdhawan Estate. He made the suit land fit for cultivation and grew paddy crops thereon with the permission of the officials of Kujanga Estate. He took the suit land on lease in the name of his son-plaintiff from Raja of Burdhawan in Lease Case No.399/1949-50 and paid salami. The plaintiff and his father were 2 the tenants under the State after the Orissa Estate Abolition Act came into force in the year 1952. Though he had taken steps before the settlement authorities, but then the R.O.R of the suit land was not issued in his favour. While the matter stood thus, Encroachment Case No.93/81 was initiated against him by the Tahasildar, Marsaghai. Further case of the plaintiff is that in the alternative if it is found that the father of the plaintiff or the plaintiff were not properly inducted as tenants in respect of the suit land, they have perfected title by way of adverse possession on the ground that his father as well as himself were in possession of the suit land continuously for more than 30 years with the knowledge of the government officials.
3. Pursuant to issuance of summons, the defendants entered appearance and filed comprehensive written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit on the ground of non-issuance of notice under Section 80 CPC, it was pleaded that the order of eviction had been passed in Encroachment Case No.93/81 and the plaintiff had been dispossessed. The suit is not maintainable since recovery of possession has not been prayed. The description of the suit land is vague and indefinite. The suit land was unsurveyed jungle block under Kujanga estate. The estate was vested in the State in the year 1952. The settlement operation in the village was started in the year 1959. The ROR was finally published in the year 1966 in the name of the Forest Department, Government of Orissa. The kissam of the land is Jungle-II. Since the suit land was encroached by the encroachers, Encroachment Case No.93/81 was initiated against them. The encroachers admitted that the suit land is a Government land for which penalty of Rs.709.20 ps. was imposed on 24.12.1981. The same had been paid by the encroachers on 4.1.1987. The 3 encroachers had been evicted by due process of law. Further, after vesting in the State, no ekapadia was submitted by the ex-landlord in favour of the plaintiff.
4. On the inter se pleadings of the parties, learned Munsif, Kendrapara framed six issues, which are quoted hereunder;
“1. Is the suit maintainable?
2. Has the plaintiff any cause of action?
3. Is the suit hit under Section 80 CPC ?
4. Has the plaintiff acquired any right, title, interest or possession by way of adverse possession over the suit land?
5. What other relief, the plaintiff is entitled to ?
6. Whether the plaintiff has acquired the right of occupancy in respect of the suit land ?”
5. To substantiate the case, the plaintiff had examined five witnesses and on his behalf, eight documents had been exhibited. The defendants had neither examined any witness nor exhibited any document. Learned trial court came to hold that neither the plaintiff nor his father was a tenant under the Ex-intermediary. In absence of any evidence of possession for a continuous period, no right of occupancy can be created in his favour. It was further held that there is no evidence with regard to holding any land under the ex-landlord from the year 1950 till 1960. The claim as regards the right acquired through adverse possession has been clearly refuted by the Forest Settlement Officer. Held so, learned trial court dismissed the suit.
6. Assailing the judgment and decree passed by the learned trial court, the plaintiff filed Title Appeal No.7/90 before the learned Addl. District Judge, Kendrapara. On a thread-bare analysis of the evidence, oral as well as documentary and pleadings, learned lower appellate court came to hold that there is nothing on record which would establish that the State Government accepted the plaintiff as the tenant for the suit land after vesting in the year 1952 and that the alleged tenancy of the plaintiff and/or his father under 4 Burdhawan Estate was recognized by the State Government after the Estate Abolition Act came into force in the year 1952. Therefore, the plaintiff has no manner of any right to claim the suit land on the ground that he or his father was tenant under the ex-landlord before vesting of the Estate. It further held that there is no evidence to establish that the plaintiff is in peaceful possession over the suit land for more than 30 years with the knowledge of the true owner. Therefore, the plaintiff has failed to establish his right, title, interest and possession over the suit land by way of adverse possession. Held so, learned lower appellate court dismissed the appeal.
7. The second appeal was admitted on 15.7.2002 on the following substantial questions of law;
“1. Whether the father of the plaintiff and thereafter the
plaintiff by virtue of long continuous possession over the
suit land for more than the statutory period have become
occupancy rayat within the meaning of Section 23 of the
Orissa Tenancy Act and whether they have acquired right
of occupancy under Section 24 of the said Act.?”
2. Whether the plaintiff has acquired right of
occupancy by virtue of adverse possession having
remained in possession for more than the statutory
8. Heard Mr.Yeeshan Mohanty, learned Senior Advocate for the appellant and Mr. P.C. Panda, learned Addl. Government Advocate for the State.
9. Mr. Mohanty, learned Senior Advocate for the appellant, argued with vehemence that the suit schedule land was unsurveyed cultivable waste land belonging to ex-intermediary of Kujanga estate. The ex-intermediary inducted the plaintiff while he was a minor through his father. The father of the plaintiff reclaimed the land and made it fit for cultivation. His father paid rent to the ex-intermediary. After vesting of the estate, the rent offered by his father was not accepted by the Tahasildar. After death of his father, the plaintiff 5 remained in possession of the land peacefully, continuously and to the hostile animus of the true owner for more than thirty years and, as such, he has perfected his title by way of adverse possession.
10. Per contra, Mr. Panda, learned Addl. Government Advocate for the State, submitted that the suit schedule land originally belongs to ex-intermediary of Kujang. The estate was vested in the State of Orissa in the year 1952. The ex-intermediary has not submitted any Ekapadia in favour of the father of the plaintiff or the plaintiff. No reliance can be placed on the rent receipts. The plaintiff was a minor. Further, the date of entering into the possession of the suit land has not been mentioned. The plaintiff has not proved that he is in possession of the land peacefully, continuously and to the hostile animus of the true owner for more than the statutory period. Since there is no perversity or illegality in the judgments of the courts below, this Court should not interfere with the same.
11. Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession. Adverse possession is not a pure question of law, but a blended one of fact and law.
12. In Annasaheb Bapusaheb Patil and others v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs & heirs etc., AIR 1995 SC 895, the apex Court held that adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, 1962, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts 6 which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. It was further held that where possession could be referred to a lawful title, it will not 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.
13. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, 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 “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 7
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
14. The instant appeal may be examined on the anvil of the decisions cited supra. The specific case of the defendants is that in Encroachment Case No.93/81, the plaintiff has been evicted. In the said case he has admitted that he is an encroacher and paid penalty of Rs.709.20 ps. on 4.1.1987. Further, the description of the suit property is vague and indefinite. In the ROR published in the year 1966 the suit land has been recorded in the name of the Forest Department, Government of Orissa. The kissam of the land is jungle block. Kujanga estate was vested in the State of Orissa in the year 1952. In the rent roll ekapadia submitted by the Ex-landlord, the name of the plaintiff has not been mentioned. Learned lower appellate court came to hold that the plaintiff was a minor and the so-called rent receipts are fake documents. The plaintiff was 42 years when the suit was filed in the year 1985. That means he was 9 years old when he was inducted as a tenant and the rent receipts were issued. Difficult to fathom. Learned lower appellate court has rightly held that the documents are fake. The land vested in the State of Orissa free from all encumbrances. There is no pleading with regard to the date of entry of the plaintiff over the suit land. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession. Nec vi, nec clam, nec precario are pleaded and proved.
15. Furthermore the description of the immovable suit property given in the plaint is not sufficient to identify the same. Order 7 Rule 8 3 CPC postulates that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identity it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. It is a settled position of law that if the suit property is the whole of the plot in the settlement ROR, mere mention of khata number, plot number and mouza to which it appertains would be sufficient for its identification. But then, where the suit is in respect of a portion of a plot, further particulars are necessary for its proper identification. No effective decree can be passed by the court in respect of suit property the description of which as given in the plaint, is not sufficient for its identification.
16. Thus the substantial questions of law enumerated in ground numbers 1 and 2 are answered in negative against the plaintiff.
17. The inescapable conclusion is that appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
DR. A.K.RATH, J
Orissa High Court, Cuttack.
The 20th January, 2017