CHANDRA SEKHAR SAHU vs STATE OF ORISSA AND OTHERS

Dr. A.K.Rath, J

The plaintiff is the appellant against a confirming judgment in suit for declaration of title, confirmation of possession and in the alternative for

recovery of possession, in the event he is dispossessed during pendency of the suit, correction of R.O.R. and declaration that the order passed by the

defendant no.3 in Encroachment Case No. 219 of 1988-89 is illegal.

An area of Ac.2.90 dec. of land appertaining to Khata No. 385, Plot No. 147, Village-Baisnga, P.S.-Kamakhyanagar in the district of Dhenkanal is

the subject-matter of dispute.

The case of the plaintiff is that the suit land belonged to the Government of Orissa. In the current settlement, the land has been recorded in the

name of Government of Orissa as ‘Abada Jogya Anabadi’. In the remarks column of the R.O.R., his possession has been reflected. The suit

land is adjacent to his ancestral land. It was a bushy jungle. His father reclaimed the suit land in the year 1930. He used to grow crops. He was in

possession of the suit land till 1949. The suit property fell to the share of the plaintiff in the partition of the year 1949. He is in possession of the land.

In the Yadadast, it was noted that the plaintiff was in possession of the suit land since 1950. While matter stood thus, defendant no.3 initiated

Encroachment Case No. 219 of 1988-89. It is further pleaded that his father was in possession of the suit land since 1930 to 1949 and thereafter the

plaintiff is in possession of the suit land till 1950-1988 peacefully, continuously and with hostile animus of the defendants and as such, perfected title by

way of adverse possession. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

The defendants were set ex parte. Learned trial court dismissed the suit with the finding that the plaintiff has failed to substantiate the plea of

adverse possession. 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. Felt aggrieved, the plaintiff filed T.A. No. 01 of 1996 before the learned Civil Judge (Senior Division), Kamakhyanagar. Placing reliance

on a decision of this Court in the case of Narayan Chandra Yotish v. State of Orissa and another, 73 (1992) C.L.T. 860, learned appellate court held

that the suit is not maintainable in view of the bar contained in Sec.16 of the O.P.L.E. Act. It concurred with the finding of the learned trial court that

the plaintiff has failed to prove his title by way of adverse possession. Held so, it dismissed the suit.

The appeal was admitted on the substantial questions of law enumerated in Ground Nos.2 and 3. The same are:-

“2. For that the finding of the learned court below that there is no evidence to show that when the plaintiff’s possession became adverse, if at

all did is on the face of it is contrary to the record, categorically ignoring the fact that it is the positive case of plaintiff that his father was in possession

of the suit land from the year 1930 as of right adverse to the State and after the family partition he is in possession of the suit land adverse to the

State. As such the finding as has been arrived at by the learned court below is on the face of it is wholly illegal and is liable to be set aside ?

For that the draft record of right is the evidence of possession at the time when it was prepared and is admissible and has probative value to that

effect as has been held by this Hon’ble Court in ILR 1968, Orissa Page 566. As such, the finding as has been arrived at is against the law and

weight of materials on records as such, the same is wholly illegal and is liable to be set aside ?â€​

Heard Mr. H.K. Behera on behalf of Mr. S.D. Das, learned Senior Advocate for the appellant and learned Additional Standing Counsel for the

respondents.

Mr. Behera, learned counsel for the appellant submitted that the father of the plaintiff was in possession of the land since 1930. Thereafter, the

plaintiff is in possession of the suit land peacefully, continuously and with hostile animus of the defendants for more than the statutory period and as

such, perfected title by way of adverse possession. Though the suit land was recorded as ‘Abada Jogya Anabadi’ in the R.O.R., but the

plaintiff’s note of possession has been reflected therein. He further submitted that the R.O.R. is admissible in proof of the fact that at the time of

preparation of R.O.R., the plaintiff was in possession of the land. The initiation of proceeding under the O.P.L.E. Act is bad in law. The civil court has

jurisdiction to try the suit. He cited the decision in the case of Lakhyeswar Karmi and others v. Padmabati Karmi and others, I.L.R. 1968 Cuttack

566.

Per contra, learned Additional Standing Counsel submitted that the suit land is a Government land. Plaintiff has failed to prove that he has perfected

title by way of adverse possession. Both the courts below concurrently held that the plaintiff has no title over the suit land. The R.O.R. was published

in the name of the Government.

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. It was further held that

subsequent Single Judge decision in the case of Narayan Chandra Yotish (supra) did not take note of the two Bench decisions of this Court arising

under the same Act as well as the decision of the apex Court rendered under an Act containing pari materia provisions must be taken to have been

wrongly decided. 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. Both the courts below concurrently held that the plaintiff has failed to substantiate his plea of adverse possession. There is no perversity

or illegality in the findings of the courts below.

In Lakhyeswar Karmi (supra), this Court held that the draft R.O.R. is admissible in proof of the fact that at the time when the draft R.O.R. was

prepared, the tenant to whom the parcha slip was issued was found to be in possession by public servants in due discharge of their duties. There is no

quarrel over the proposition of law. As held above, the plaintiff has failed to prove title by way of adverse possession.

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