Bibhuti Bhusan Mohanty vs State Of Orissa And Others

Dr.A.K.Rath, J

This appeal at the plaintiff’s instance assails the affirming first appellate judgment of the learned District Judge, Phulbani in a suit for declaration

of title over schedule-A land and permanent injunction.

The case of the plaintiff is that schedule-A land is a part and parcel of schedule-B land. Originally the land was unsurveyed and not assigned any

khata and plot numbers. Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury were the owners of schedule-B land. They alienated the land to

Balabhadra Kanhar and Gajapati Kanhar by means of a registered sale deed in the year 1926 after obtaining prior permission from the then S.D.O.,

Kandhamal. Thereafter Balabhadra Kanhar and Gajapati Kanhar alienated a portion of schedule-B land to Sunapani Mohanty, plaintiff’s

grandfather, by means of an unregistered sale deed dated 11.5.1948. After sale, Sunapani Mohanty constructed a thatched house over a portion of the

land and stayed therein with his family members. After his death, his son Naba Bhusan Mohanty, father of the plaintiff, was in possession of the land.

Subsequently his father donated the suit land in his favour. While matter stood thus, the settlement operation in the area, wherein the land falls, started.

Sunapani Mohanty was bedridden. He could not take steps before the settlement authority, as a result of which, schedule-A land had been wrongly

recorded as Rakhit land in Government khata no.126, plot no.41/1094 of mouza-Dadapaju. Out of the same, Ac.0.200 dec. of land had been allotted to

D.R.D.A., Kandhamal by the Collector in the year 1994- 95. The R.O.R. was accordingly issued in the name of D.R.D.A., Phulbani. Notwithstanding

the same, the plaintiff is in possession of schedule-A land. He has acquired possessory title. In 2001 the R.I. obstructed for construction of pucca

house. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

Defendants 1 and 2 filed a joint written statement pleading, inter alia, that schedule-A land is not a portion of schedule-B land. It has no link with

schedule-B land. The land has been rightly recorded in Rakhit khata. The description of the suit land in the plaint is incorrect. Neither the predecessor

of the plaintiff, nor the plaintiff was in possession of the suit land. The plaintiff has no semblance of right, title and interest over the suit land.

Defendants 3 to 9 were set ex parte.

Stemming on the pleadings of the parties, learned trial court struck five issues. Plaintiff led evidence, oral and documentary. No evidence was

adduced by the defendants. Learned trial court dismissed the suit holding that the plaintiff had failed to prove that he is in possession of the suit land

for more than thirty years and perfected title way of adverse possession. Unsuccessful plaintiff filed first appeal before the learned District Judge,

Phulbani. On an anatomy of the pleadings and evidence, learned appellate court held that the plaintiff pleaded that the original owners of the suit land

were Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury. The plaintiff has claimed title by way of adverse possession. But then, there is no

averment as to against whom the plaintiff has claimed acquisition of possessory title and from which date possession of the plaintiff has become

adverse against the State. The plaintiff has failed to prove that he was in possession of the suit land for more than thirty years. There are other legal

heirs of Sunapani Mohanty. The alleged gift is not supported by any gift deed. It is not clear if the plaintiff claims acquisition of possessory title against

the successors of Sunapani Mohanty. In absence of other legal heirs, the suit is not maintainable. The unregistered sale deed had not seen the light of

the day till it was presented before the court. The documents sought to be produced through P.W.4. He was not a signatory to the unregistered deed,

but he claimed that he was present when deed was executed. He was seventy years old in 2003 when he deposed in the court. Thus when the deed

was executed, he was fifteen years old. He was not related to the family of Sunapani Mohanty. His evidence does not inspire confidence. Therefore,

it cannot not be said that Sunapani Mohanty purchased the suit land in the year 1948. Held so, it dismissed the appeal.

Mr.Dayananda Mohapatra, learned Advocate for the appellant, submitted that the suit land originally belonged to Dinabandhu Kanhar, Gatak

Kanhar and Dasa Dehury. For their legal necessity, they sold the land to Balabhadra Kanhar and Gajapati Kanhar by means of a registered sale deed

in the year 1926 for a valid consideration after obtaining prior permission from the then S.D.O., Kandhamal. Thereafter, Balabhadra Kanhar and

Gajapati Kanhar alienated a portion of schedule-B land to one Sunapani Mohanty by means of an unregistered sale deed dated 11. 5.1948. After the

sale, Sunapani Mohanty constructed a thatched house therein and stayed in the said house with his family members. After death of Sunapani

Mohanty, his son Naba Bhusan Mohanty was in possession of the land. Naba Bhusan Mohanty gifted the land to the plaintiff. He further submitted

that clause-11 of the Guidelines for Right and Title in respect of the lands situated in Boudha-Kandhamal provides that if a person is in possession of

the Government land for more than thirty years continuously, then the land shall be recorded in his name. The courts below did not delve into the same

and, as such, the judgments are vulnerable. He further submitted that Sunapani Mohanty purchased the land in the year 1948. By the time the suit land

was instituted in the year 2002, the plaintiff was in possession of the land for more than thirty years peacefully, continuously and with the hostile

animus to the defendants and, as such, perfected title by way of adverse possession.

Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal

Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec

precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140

that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitorâ€​.

In Karnataka Board of Wakf vs. Govt. of India and others, (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 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€​

The plaintiff asserts that Dinabandhu Kanhar, Gatak Kanhar and Dasa Dehury were the original owners of the suit land. Successive alienations

have been made thereafter. The plaintiff claims title by way of adverse possession. It is not the case of the plaintiff that State is the paramount owner

of the suit land. The learned appellate court is right in observing that there is no averment as to against whom the plaintiff has claimed acquisition of

possessory title. The plaintiff has failed to prove that he was in possession of the suit land for more than thirty years peacefully, continuously and with

the hostile animus to the defendants and, as such, perfected title by way of adverse possession. These are essentially findings of fact. There is no

perversity in the said finding.

Reliance placed on clause-11 of the Guidelines for Right and Title in respect of the lands in Boudh-Kandhamal is totally misconceived. On a bare

reading of the said provision, it is evident that if a person is in possession of the Government land for more than thirty years continuously, then the land

shall be recorded in his name. But then, the plaintiff asserts title on the basis of unregistered sale deed. Simultaneously he took the plea that he has

perfected title by way of adverse possession. The plea is mutually destructive. Mere possession of the suit land for long time is not suffice to hold that

the plaintiff 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 matter may be examined from another angle. 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 Vrs. 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€​

Resultantly, the appeal is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.

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