Gopalal Agrawal (since dead) through LRs vs State Of Orissa Represented Through The Collector, Sambalpur And Another

DR. A.K.RATH, J

Plaintiff is the appellant against confirming judgment in a suit for declaration of title and Encroachment Case No.455 of 2002 is illegal.

The case of the plaintiff was that the suit land originally belonged to Government. It was lying fallow. His father Govindram Agrawalla reclaimed

the suit land in the year 1947. After death of his father, he was in possession of the same and constructed a boundary wall in the year 1957. He

installed a rice and flour mill in the name and style of Mahabir Rice and Flour Mills in the year 1964. He is in possession of the suit land for more than

30 years and perfected his title by way of adverse possession. In the remark column of M.S. R.O.R., his name along with other family members has

been reflected. While matter stood thus, Encroachment Case No.455 of 2002 was initiated against him. Notice was issued to him to deliver vacant

possession of the suit land. Initiation of encroachment case is bad in law. With the factual scenario, he instituted the suit seeking the relief mentioned

supra.

The defendant no.2 entered contest and filed written statement denying the assertion made in the plaint. The case of the defendant no.2 was that

the suit land was recorded as ‘Rasta’ in the Hal Settlement ROR. The same was included in M.S. Khata No.501 as ‘Sarbasadharana

khata’. The suit property belongs to Government. The Settlement Authority had illegally recorded the name of the plaintiff. In view of the same,

Encroachment Case No.237 of 1999 was initiated against the plaintiff. Order of eviction was passed. The plaintiff handed over possession of the suit

land to the Revenue Inspector, Rengali in the presence of the witnesses on 16.10.2000. Plaintiff was not in possession of the suit land for 30 years.

Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary. On an anatomy of the

pleadings & evidence, learned trial court came to hold that the plaintiff had not perfected his title by way of adverse possession. The unsuccessful

plaintiff filed RFA Case No.23/44 of 2005 before the learned Additional District Judge, Sambalpur, which was eventually dismissed. It is apt to state

here that during pendency of this appeal, the sole appellant died, whereafter his legal heirs have been substituted.

The second appeal was admitted on the following substantial question of law:

“Whether the findings of the courts below that the plaintiff and his fore fathers were not in possession for a continuous period of more than 30 years over the suit

land are based on no evidence and perverse approach.â€​

Heard Mr. Budhiram Das, Advocate on behalf of Mr. N.C. Pati, learned Advocates for the appellants and Mr. Swayambhu Mishra, learned A.S.C.

for the State.

Mr. Das, learned Advocate for the appellants submits that the father of the plaintiff occupied the suit land in the year 1947. After his death, the

plaintiff constructed a boundary wall over the suit plot in the year 1957. He installed a rice and flour mill in the year 1964. Thereafter the plaintiff is in

possession of the land peacefully, continuously and to the hostile animus of the defendants for more than 30 years and as such perfected the title by

way of adverse possession. He further submits that in the M.S. R.O.R. published in the year 1980, Ext.1, the names of the plaintiff and his family

members have been reflected in the remark column. In encroachment case, no order of eviction was passed. The plaintiff is in possession of the suit

land.

Per contra, Mr. Swayambhu Mishra, learned A.S.C. for the respondents submits that plaintiff was not in possession of the suit land for more than

30 years. Both the courts concurrently held that the plaintiff had not perfected the title by way of adverse possession. There is no perversity in the

findings of the learned courts below.

Adverse possession is not a pure question of law, but a blended one of fact and law. 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. 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€​ (emphasis laid)

Reverting to the facts of this case and keeping in view the law laid down by the apex Court in the case of Karnataka Board of Wakf (supra), this

Court finds that there is no pleading with regard to the date of entry into the suit land. Though the plaintiff asserts that he is in possession of the suit

land since the time of his grandfather, but no document has been filed in the courts below. In the remarks column of M.S. R.O.R. of the year 1980,

Ext.1 the names of the plaintiff and his family members have been reflected. The suit was instituted in the year 2002. If the said year is taken into

account, then the plaintiff was not in possession of the suit land for 30 years. In Encroachment Case No.455 of 2002, order of eviction was passed.

Plaintiff had handed over the possession of the land. The suit land has been recorded as ‘Sarbasadharana Khata’ in the R.O.R. The nature of

the land has been mentioned as communal. Both the courts, on a threadbare analysis of the evidence on record and the pleadings, came to hold that

the plaintiff has not perfected the title by way of adverse possession. These are essential findings of fact. There is no perversity in the findings of the

courts below. The substantial question of law is answered accordingly.

In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly the same is dismissed. There shall be no order as to costs.

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