BASANTA KUMAR BEHERA vs TAHASILDAR BANKI AND OTHERS

Dr. A.K.Rath, J

This appeal is by the plaintiff against a confirming judgment. The suit is for permanent injunction.

The case of the plaintiff is that the suit plot measuring Ac.0.20 dec. of land appertaining to Khata No. 886, Plot No. 686 of Mouza-Gadajit in the

district of Cuttack has been recorded as Anabadi and Puratan Patita. He is in possession of 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. He stacked

stones over the suit land. While matter stood thus, Encroachment Case No. 33 of 1983 was initiated by the Tahasildar, Banki. He appeared and filed

an application for grant of lease of the land in his favour. The Tahasildar seized the stones. With this factual scenario, he instituted the suit seeking the

relief mentioned supra.

The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that the suit

plot measuring Ac.0.20 dec. is a part of plot admeasuring Ac.4.14 dec. The same is recorded as Puratan Patita. The Gundicha temple of Lord

Jagannath Mahaprabhu bije Gadajit is situated over the plot. The land encroached by the plaintiff was within the premises of the Gundicha temple. The

same is meant for parking of the chariot of the deity, assembly of the religious public for darsan of the deity and performance of seva puja and

nitikrantis during Car Festival. The encroachment proceeding was disposed of in accordance with law.

Stemming on the pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary, to substantiate their

case. Learned trial court dismissed the suit with a finding that the suit land is Puratan Patita. The plaintiff made two applications on 05.10.1983 and

06.06.1984, vide Exts. D and E, for lease of the land. He had not mentioned that he was in possession of the suit land for more than forty years. The

plaintiff was not in continuous possession of the suit land. The plaintiff was evicted from the suit land. The plaintiff is not a landless person. Defendant

no.2 rejected the applications of the plaintiff for lease of the land. In view of the bar contained in Sec.16 of the Orissa Prevention of Land

Encroachment Act (“O.P.L.E. Actâ€), the suit is not maintainable. Unsuccessful plaintiff filed T.A. No. 17 of 1988 before the learned District

Judge, Cuttack, which was eventually dismissed.

This appeal was admitted on the following substantial question of law:-

 “Whether the courts below failed to consider the statement of witnesses in its proper perspective and effect of non-consideration of such

statements vitiates the judgment ?â€​

Heard Mr. Pravat Kumar Lenka on behalf of Mr. S.K. Mohanty, learned counsel for the appellant and Mr. Swayambhu Mishra, learned Additional

Standing Counsel for the respondents.

Mr. Lenka, learned counsel for the appellant submitted that the plaintiff is in possession of the suit land peacefully, continuously and with hostile

animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession. The courts below had not

considered the evidence of the plaintiff. The findings of the courts below are perverse.

Per contra, Mr. Mishra, learned Additional Standing Counsel submitted that adverse possession is a mixed question of fact and law. Both the courts

below concurrently held that the plaintiff has not perfected title by way of adverse possession.

In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460, a question arose that whether the decision of the Revenue

Officer in the proceeding under the O.P.L.E. Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and

recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the O.P.L.E. Act can neither operate as res

judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. Notwithstanding the bar

contained in Sec. 16 of the O.P.L.E. Act, the civil court has jurisdiction to adjudicate the complicated question of title.

In Karnataka Board of Wakf vs. 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 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€​ Â

The date of entry into the suit land had not been mentioned. Mere possession of the suit land for long time is not suffice to hold that the true owner

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. The plaintiff made two applications before the Tahasildar in encroachment case on 05.10.1983 and 06.06.1984, vide Exts. D and E, for

lease of the land in his favour. Thus, the element of hostile animus is absent.

The witnesses examined by the plaintiff made prevaricating statements. On an anatomy of pleadings and evidence, both oral and documentary, the

courts below negatived the plea of adverse possession. There is no perversity or illegality in the findings of the courts below. The substantial question

of law is answered accordingly.

Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.