Bikram Chandra Dalabehera - Appellant @HASH G. Udayagiri and another

Shri D. Dash, J. - This appeal has been directed against the judgment and decree passed by the learned District Judge, Phulbani in RFA No. 21

of 2004 confirming the judgment and decree passed by the learned Civil Judge (Jr. Divn.), G.Udayagiri in T.S. No.5 of 2000.

The appellant as the plaintiff had filed the suit for declaration of his right, title and interest over the suit property, confirmation of possession and

permanent injunction against the defendants who are the officials of the State. The suit having been dismissed, the appellant as the unsuccessful

plaintiff had filed the first appeal under Section 96 of the Code of Civil Procedure and that having also been dismissed, the present move before

this Court is by filing the second appeal under Section 100 of the Code.

For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been

arraigned in the trial court.

It is the case of the plaintiff that the suit land is his ancestral property and his ancestral house and cow-shed stand over the same. He further

asserts that the suit land has been in possession of his father since long and after him, it is in his hands. He claims to have been in possession of the

suit land on his own right, title and interest. It is stated that in the Hal Settlement Record, there has been a note of possession in favour of his father

where the kisam land has also been recorded as Gharabari. It is alleged that the record of right in respect of the suit land has been erroneously

prepared recording the land under Anabadi khata as owned by the State. It is further stated that in the year 1985, an encroachment proceeding

was initiated and as order of eviction has been passed, threat to his possession thus having arisen, the suit has been filed. Narrating other facts, it is

stated that in course of the said encroachment proceeding, there had been recommendation by the revenue inspector for settlement of the land in

his name yet that has been turned down without any rhyme and reason.

The defendants in their written statement assert the land to be belonging to the Govt. and not the ancestral property of the plaintiff as claimed. It

is stated that although there was a recommendation for settlement of the land in suit in favour of the plaintiff yet he was found ineligible as his

income exceeded the limit as prescribed for the purpose and as he owns other properties in the locality. It is also stated that the plaintiff has not

acquired title over the suit land by adverse possession.

Faced with such rival pleadings, the trial court framed in total nine issues. Going to answer issue nos. 4 and 5 as regards the right, title and

interest of the plaintiff over the suit land and his possession, also covering the alternative claim of acquisition of title of the suit land by adverse

possession, ultimately on analysis of evidence in the backdrop of pleadings discussing the settled position of law covering the subject, answers have

been rendered against the plaintiff that the suit land is neither his ancestral property nor he has acquired title over it by adverse possession. Mainly

the above answers have led to the dismissal of the suit.

The lower appellate court being moved by the unsuccessful plaintiff has found no justification to record finding on those issues in difference to

those of the trial court. Both the courts below have found that the plaintiff has failed to plead and prove the actual date of entry upon the suit land

that is the date of commencement of possession of the same so as also to conclude that such possession has been for upward of the prescribed

period.

Learned counsel for the appellant submits that in the present case the plaintiff was aged about 65 years at the time of institution of the suit and 50

years when the encroachment case was initiated against him since he specifically states that the land was in possession of his father, the courts

below ought not to have so seriously viewed the absence of the exact date of commencement of possession of the suit land by the father of the

plaintiff in the pleading and evidence. It is also submitted that since overwhelming evidence remain establishing the factum of possession of the suit

land by the plaintiff since the time of his father and that having been established to be open, peaceful and continuous for more than the prescribed

period, the hostile animus ought to have been presumed and accordingly, the courts below ought to have held that the plaintiff has acquired title

over the suit land by adverse possession having remained as such in exercising all the rights of ownership over it. According to him, these are the

substantial questions of law which surface in this case for their certification for the purpose of admission of this appeal. He also contends in the

alternative that in the facts and circumstances when other persons of the same locality in encroachment of the land have been settled with those

lands, and when there remains the report in favour of settlement, the authorities ought not to have been hesitant in favouring the appellant with such

settlement of the suit land being swayed away by some too technical reasons.

Learned counsel for the State submits all in favour of the finding recorded by the courts below and according to him, the concurrent finding on

pure question of fact as recorded by the courts below are not liable to be interfered in the second appeal when no such material is shown that such

finding is the outcome of perverse appreciation of evidence. It is also his submission that even accepting the case of the plaintiff as has been laid no

case of acquisition of title over the suit land by adverse possession can be said to have been made out.

In order to address the rival submission, let us first of all have a look at the plaint averments. At para-3 of the plaint, it has been averred in clear

and specific terms that the suit property is the ancestral property of the plaintiff and has been in use with a house and cow-shed standing over the

same and his father was in occupation as its rightful owner till his death towards the end of the year 1980 where after, he has succeeded to it.

Again at para-4, it has been asserted that the plaintiff in the said encroachment case he had averred that the suit land is his ancestral one. At the

end of the said para, it has been just stated that the possession of the plaintiff having been recognised, he has perfected his title by way of adverse

possession.

The courts below have held that the plaintiff has signally failed to prove that the subject matter of the suit is the ancestral property in the hands of

the plaintiff and as there remains no such evidence on record in order to establish that, the finding of the courts below on that score is found to be

quite in order. Now comes the question of acquisition of title over the suit land by the plaintiff by adverse possession.

Position of law is well settled that the burden of proof lies on the person who claims to have acquired title over the land by way of adverse

possession by specifically pleading and proving that he has been in open, peaceful and continuous possession of the land in question for upward of

the prescribed period as its owner exercising all such rights of ownership denying the title of the true owner exhibiting the hostile animus to the

knowledge of the true owner. In the case in hand, the plaintiff has nowhere admitted the State to be having the antecedent title over the property in

question and his very case is that the suit land is ancestral land. So even if accepting for a moment that for quite a long period he has been in

possession of the same, the fundamental ingredient required to be established that such possession has to be in denial of the title of the true owner

to his knowledge remains wholly wanting. When the plaintiff is not aware as to who is the true owner of the property neither there remains the

scope of denying the title of the true owner nor exhibition of any hostile animus to the knowledge of the true owner comes. This itself goes to

negate the claim of the plaintiff as regards his acquisition of title over the suit land by adverse possession.

It is the settled position of law that mere possession of the suit land for any length of time whatever it may be is not enough to give rise to a case of

acquisition of title by adverse possession. In view of the aforesaid, even accepting the submission of the learned counsel for the appellant that the

courts below in the fact and circumstance ought not to have given so much importance to the fact that the plaintiff has not pleaded the exact date of

entry over the suit land in possessing the same, yet the ultimate denial of the claim of the plaintiff to have acquired title over the suit land by adverse

possession as recorded by the courts below cannot be found fault with.

Therefore, the submission of the learned counsel for the appellant that there arises the substantial question of law in the case for their certification

for the purpose of admission of the appeal fails. The appeal thus does not merit admission.

Accordingly, the appeal stands dismissed. No order as to cost.

At this stage before parting, considering the submission of the learned counsel for the appellant, it is felt apt and proper to observe that the above

dismissal of appeal shall not stand as a bar for the appellant to apply for settlement of the land in suit in his favour and in the event it is made, it

would be open to the authority to consider the same on its own merit and dispose of the same in accordance with law viewing the present scenario

in the prevailing facts and circumstances being uninfluenced by this dismissal of the claim of the plaintiff in the suit.