Alekha Sahu vs State Of Orissa And Others

A.K. Rath, J

This appeal at the instance of the plaintiffs, assail the affirmed judgment of the learned Additional District Judge, Sonepur in R.F.A. No. 78 of

2004 in a suit for declaration of title and confirmation of possession.

The case of the plaintiffs was that the suit land was recorded in the name of State of Orissa as a public road in the 3rd and 4th settlement. They

were the tenants and in possession of the same. During Ex-Darbar administration, the road leading from Sonepur to Bolangir was running in a

carved manner from the Block square. The then Maharaja constructed the new road straight away from the Block square, which passed through

the rayati land of Hira Sahu, their ancestor. Neither the land was acquired, nor any compensation was paid to Hira Sahu. Hira Sahu approached

the then Maharaja to give him some land in lieu of land covered by the road. Hira Sahu was in possession of the portion of the old road till his

death in the year 1972. After his death, his two sons, plaintiff no. 2, Nakphudi Sahu and plaintiff no. 3, Satya Narayan Sahu succeeded to the

property. They are in possession of the portion of the old road including the suit land openly, peacefully and with hostile animus to the knowledge

of the defendants for more than the statutory period and as such, perfected title by way of adverse possession. In the 4th settlement, the suit land

as well as other portions of the old road covered by Plot Nos. 267, 271, 279, 282 and 268 were recorded in the name of the State of Orissa as a

road under Khata No. 3 for which the Tahasildar, Sonepur initiated Encroachment Case No. 420 of 1970 against Hira Sahu in respect of Plot

Nos. 267, 271, 279 and 282. Order for eviction was passed. Hira Sahu filed appeal before the Sub-Collector, Sonepur. By order dated

20.10.71, the case was dropped. After death of Hira Sahu, his descendants instituted T.S. No. 24 of 1995 in the court of learned Civil Judge

(Senior Division), Sonepur against the State of Orissa for declaration of right and confirmation of possession in respect of the old road covered by

plot nos. 267, 271, 279, 282 and 293. The suit was decreed on 27.11.1995. However, the suit plot no. 265 was not the subject-matter in the

said suit as it was not included in the encroachment case. The plaintiffs approached the Assistant Settlement Officer in the 5th Settlement to record

the suit plot no. 265 in their names along with other plots. The Assistant Settlement Officer recorded their names in respect of plot nos. 267, 271,

279, 282 and 283, but then rejected the prayer to record the suit schedule land. With this factual scenario, the plaintiffs instituted the suit seeking

the reliefs mentioned supra after issuance of notice under Sec.80 CPC.

The defendants filed a written statement denying the assertions made in the plaint.

On the inter se pleadings of the parties, learned trial court struck eight issues. Both parties led evidence, oral and documentary. On a threadbare

analysis of the evidence on record as well as pleadings learned trial court came to hold that the plaintiffs had failed to prove that they have

perfected their title over the suit land by way of adverse possession. Held so, it dismissed the suit. Unsuccessful plaintiffs challenged the judgment

and decree of the learned trial court before the learned Additional District Judge, Sonepur in R.F.A. No. 78 of 2004, which was eventually

dismissed.

Heard Mr. Budhiram Das on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr. Debasis Pattnaik on behalf of Mr. D.K.

Mishra, learned counsel for the respondent no. 4.

Mr. Das, learned counsel for the appellant submits that Hira Sahu was a tenant. In the 4th settlement R.O.R., the suit land had been wrongly

recorded in the name of the State of Orissa. Hira Sahu was in possession of the Plot Nos. 267, 271, 282 and 283. Encroachment Case No. 428

of 1970 was initiated by the Tahasildar, Sonepur against him. Order of eviction was passed, but subsequently the proceeding was dropped. After

death of Hira Sahu, the plaintiffs instituted T.S. No. 24 of 1995 for declaration of title and confirmation of possession in respect of plot nos. 267,

271, 279 and 282 in the court of learned Civil Judge (Senior Division), Sonepur against the State of Orissa. The suit was decreed. However, the

suit plot i.e. Plot No. 265 could not be included in the earlier suit inadvertently. The plaintiffs are in possession over the suit land peacefully,

continuously and with hostile animus to the knowledge of the defendants for more than the statutory period and as such, perfected title by way of

adverse possession.

Mr. Pattnaik, learned counsel for the respondent no. 4 supports the arguments of the learned counsel for the appellant.

On a threadbare analysis of the evidence on record, both oral and documentary as well as pleadings both the courts concurrently held that the

plaintiffs had failed to prove that they have perfected title over the suit land by way of adverse possession.

Adverse possession is not a pure question of law, but a blended one of fact and law. In Karnataka Board of Wakf v. Govt. of India, (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 “nec vi, nec clam, nec precarioâ€, 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.â€​

(emphasis laid)

The date of entry into the suit land by the plaintiffs has not been mentioned. Learned appellate court held that the plaintiffs have not mentioned

the date and month when their possession became adverse. The plaintiffs have not perfected title by way of adverse possession. These are

essentially findings of fact. There is no perversity or illegality in the same.

In view of the analysis made above, the appeal is dismissed, since the same does not involve any substantial question of law. No costs.