Babaji Kandi and another vs Bhikari Sahoo.dead. Through L.Rs

Dr. A.K.Rath, JÂ Â

Defendants 1 and 2 are the appellants against a confirming judgment.

Plaintiff-respondent instituted the suit for declaration of title, confirmation of possession, recovery of possession in case he is dispossessed during

pendency of the suit and permanent injunction. Case of the plaintiff was that Plot No.1323 of Village-Rishipur is his ancestral homestead land. Plot

No.1324 is adjoining to the north of the suit plot. His father got southern side Plot No.1324, Ac.0.04 dec. from the ex-landlord Govinda Chandra Misra

on 10.4.1991 by way of permanent lease. A plain paper lease deed was executed and delivery of possession was made to him. His father

amalgamated the same with his homestead land. After abolition of estate, the ex-landlord did not submit the rent-roll in the name of his father. He filed

an application before the Tahasildar, Jajpur in the year 1976 for preparation of rent-roll in respect of Plot No.1324. Lease Case No.4055/76 under

Secs.6 and 7 of the OEA Act was registered. No objection was filed. Defendant no.1 filed Lease Case No.2676 of 1984 for fixation of rent in respect

of the same land. Both the cases were dropped. While the matter stood thus, the defendant filed an application under Sec. 9(1)A of the OLR Act in

respect of plot no.1324. The Revenue Officer, Jajpur declared the defendants as raiyats. The order passed by the Tahasildar is illegal and not binding.

The defendant is the owner of plot no.1484/2237 and plot no.1323. Since the defendant has other lands, Sec. 9(I)A of the OLR Act is not

maintainable. The order is not binding on him. Out of Ac.0.04 dec. of land appertaining to Plot No.1324, Ac.0.01 dec. was acquired for embankment

of the river. He received compensation from the Government. The defendants were parties to the same. He is in possession of Ac.0.03 dec. of land.

When the defendant threatened to dispossess him, he filed the suit seeking the reliefs mentioned supra.

Defendants 1 to 3 entered appearance and filed a written statement denying the assertions made in the plaint. Case of the defendants 1 to 3 is that

originally Govinda Chandra Misra was the landlord. He leased out Ac.0.32 dec. of land out of Ac.1.22 appertaining to Plot No.1324 to the defendants.

He was in possession of the land. He used to pay rent. An unregistered lease deed was executed by the landlord in favour of defendants 1 to 3 on

10.3.1941. They constructed a house over a portion of the lease hold land. They are raiyats in respect of other lands. Since they are paying rent to the

ex-landlord, they acquired occupancy right under Sec. 36 of the O.T Act. They applied for fixation of rent under Sec. 9 of the OLR Act. The

defendants partitioned their land amicably. They are in possession of 1/3rd of the Ac.0.32 dec. of land having their house. After due enquiry, the

Tahasildar, Jajpur passed an order in OLR Case Nos.131, 132 and 133 of 1986. They have perfected their right by way of adverse possession.

On the inter se pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. Placing reliance on the

decisions of this Court in the case of Chintamani Sahoo and others v. Commissioner of Orissa Hindu Religious Endowments, Orissa and others, 56

(1983) CLT 47, learned trial court decreed the suit holding that the plaintiff has title over the property. Unsuccessful defendants filed Title Appeal

No.45 of 1992 before the learned Addl. District Judge, Jajpur. Learned appellate court held that even if Ext. 4 is unregistered Hat patta, but from 1941

the plaintiff possessed the suit land with the knowledge of the landlord as his own land; thereby by the time of vesting of the estate, the father of the

plaintiff had already acquired title by adverse possession. Held so, it allowed the appeal. It is apt to state here that during pendency of the appeal, sole

respondent died whereafter his legal heirs have been substituted.

The second appeal was admitted on the following substantial questions of law;

“1. Whether the courts below committed an error in not considering the Ext.E the documentary evidence on the side of the defendants-appellants

with regard to their title and possession ?

Whether the courts below were correct in decreeing the plaintiff’s suit holding that the plaintiff had acquired title by adverse possession in

absence of proper parties before the court ?â€​

Heard Mr. D.P. Mohanty, learned counsel for the appellants. None appears for the respondents. Â

Mr. Mohanty, learned counsel for the appellants submits that the plaintiffs assert title on the basis of Hat Pata said to have been executed by the

ex-landlord. Alternatively it is pleaded that they have perfected title by way of adverse possession. The claim of title to the property and adverse

possession are in terms contradictory. He further submits that the defendants filed OLR Case Nos.131, 132 and 133 of 1986. The revenue officer held

that the defendants are the raiyats.

Learned trial court placing reliance on the decision of this Court in the case of Chintamani Sahoo and others v. Commissioner of Orissa Hindu

Religious Endowments and others, CLT 56 (1983) 47 held that the plaintiff has perfected title by way of adverse possession. The decision of this

Court in the case of Chintamani Sahoo (supra) has been overruled by the apex Court in the case Sarbeswar Mohanty v. Chintamani Sah00 (Dead) by

Lrs., 88 (1999) CLT 433 (SC).

In Sarbeswar Mohanty (supra), the apex Court held that when a person is delivered possession in pursuance of a lease deed by the lessor even if

such deed is void is permissive possession as a fact on that date then how such possession would become adverse ? A possession is adverse only if in

fact one holds possession by denying title of the lessor or by showing hostility by act or words or in cases of trespassers as the case may be as against

lessor or other owner of the property in question. This permission cannot turn into hostile only because the document rendering possession is executed

in violation of any provision of law. The apex Court relied upon an earlier decision in the case of Khepa Gorain v. Kus Gorain 1998 (9) SCC 144. In

the said case, the appellant was a sub-lessee and the sub-lease was declared to be illegal in view of Section 27 of the Santhal Parganas Regulation III

of 18th Century. The apex Court rejected the claim of the appellant holding that the appellant cannot claim to be in adverse possession from the date

on which he was put in possession of the property in question, the possession being permissive and not hostile.

The land originally belonged to ex-landlord Govinda Chandra Misra. After coming into operation of the Orissa Estates Abolition Act, the plaintiff

filed an application being Lease Case No.4055 of 1976 under Sections 6 and 7 of the OEA Act. The case was dropped. Plaintiff asserts title by way

of Hat Patta. The claim of title to the property and adverse possession are in terms contradictory.

The apex Court in the case of Mohan Lal (deceased) through his LRs. Kachru and others v. 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.â€​

The apex Court in the case of L.N. Aswathama and another v. 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.â€​ The substantial questions of law are answered accordingly.

In the wake of the aforesaid the impugned judgments are set aside. Consequently the suit is dismissed.