Harekrushna Behera vs State of Orissa and Another

A.K. Parichha, J.—This is an appeal against the judgment and decree of the learned Add!. District Judge, Titilagarh passed in Title Appeal No. 33/4 of 1996-98 reversing the judgment and decree of the learned Civil Judge (Senior Division), Titilagarh passed in T.S. No. 27 of 1994.

The Appellant, as the Plaintiff, filed the above noted suit asking for declaration of his right, title and interest over the suit land and for issue of permanent injunction restraining the Respondents, who were present Defendants, from disturbing his possession over the suit land.

The case of the Plaintiff-appellant, in short, was that the suit land originally stood recorded in the name of State of Orissa, but in the year 1938 his her occupied the suit land, constructed a house thereon and resided there peacefully, openly and continuously. The Plaintiff claimed that he also possessed the suit land along with his father and after death of his father, he continued his possession. According to him by remaining in open, continuous and hostile possession over the suit land for more than 30 years, he has acquired title over the land by adverse possession, but the Tahasildar, Titilagarh suddenly started Encroachment Case No. 5 of 1992 for his eviction from the suit land and without making proper enquiry passed order of eviction. He challenged that order in appeal before the Sub-Collector, Titilagarh and also preferred a revision bearing No. 2 of 1994 before the A.D.M., Bolangir where order of stay was passed, but the Sub-Collector addressed a letter to the A.D.M. to vacate that stay. In such a situation, he had to file the above noted suit after obtaining leave of the court u/s 80 (2) of Code of Civil Procedure

Defendant No. 2 filed written statement and Defendant No. 1 adopted that written statement. In the written statement, ''defendants denied that possession of the Plaintiff and his father over the suit land since 1938 and that the Plaintiff has not acquired title over the suit land by adverse possession. They also challenged the maintainability of the suit on the ground that there is no cause of action, it is barred u/s 16 of the O.P.L.E. Act, it suffers from non joinder of necessary parties and under valuation.

Learned trial court framed as many as six issues. The Plaintiff examined four witnesses and produced the documents, which were marked as copy of the form-G, which was marked as Ext. 1 to 5. The Defendants examined two witnesses and produced the certified copy of the form-G, which is marked as Ext. A. On consideration of these evidence the trial court held that the suit is not hit u/s 16 of the O.P.L.E. Act, that it is not bad for non-joinder of necessary parties, that it is not undervalued and that the Plaintiff and his father having remained in continuous and hostile possession over the suit land for more than 30 years acquired title by adverse possession. With such finding, he decreed the suit.

In appeal, the appellate court reversed the judgment and decree with the finding that the suit is barred u/s 16 of the O.P.L.E. Act and that the Plaintiff-appellant or his-father never acquired title over the suit land by adverse possession, as hostile animus was not established. The said judgment of the 1st appellate court is now under challenge in this appeal.

The following substantial questions of law were formulated for consideration in this appeal.

(i) Whether the 1st appellate court was legally justified in its conclusion that the suit is barred u/s 16 of the O.P.L.E. Act?

(ii) Whether the omission of the trial court to use the word "adverse possession/hostile possession" in the findings under issue No. 1 has vitiated the judgment warranting interference by the appellate court ?

Mr. D.P. Dhal, Learned Counsel for the Appellant states that in view of the ratio laid down in the cases of Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, , State of Orissa Vs. Bhanu Mali (Dead) Nurpa Bewa and Others, and State of Orissa and Another Vs. Daitari Sahu and Others, the observation of the 1st appellate court that the suit of the Plaintiff was barred u/s 16 of the O.P.L.E. Act is legally untenable. He also argued that when there was entry in the R.O.R. about the unauthorized possession of the Plaintiff over the suit land and then there was unimpeachable statement of the P. Ws. about the continuous, open and hostile possession of the Plaintiff and his father over the suit land, learned 1st appellate court had no legal justification of saying that there was absence of long, continuous possession and hostile animus. According to him, the observation of the learned 1st appellate court that the oral evidence 1$4 not permissible on the issue of adverse possession is also against the mandates of law.

Mr. Sangram Das, learned Addl. Standing Counsel appearing for the Respondents, on the other hand, supports the impugned judgment and states that the OPLE Act II; a special statute, wherein the authorities have been vested with the powers to deal with the matters relating to encroachment of Government lands and therefore, when the appeal relating to the suit land was pending before the Sub-Collector, Titilagarh, the jurisdiction of the civil court to entertain the suit In respect of the suit land was barred u/s 16 of the O.P.L.E. Act. He also states that the starting point of possession of the Plaintiff or his father does not find place in the R.O.R. and the P. Ws. also did not disclose the date, month or year of such starting point of possession and as such, learned 1st appellate court was justified in disbelieving the continuous possession over the suit land for 30 years. He further states that perusal of the evidence adduced from tile side of the Plaintiff, did not disclose that the alleged possession was hostile to the interest of the true owner and therefore, learned first appellate court was justified in saying that hostile animus was wanting.

The jurisdiction of the civil court is defined u/s 9 of the CPC In the case of Secretary of State v. Mask & Company AIR 1949 PC, 105, the question regarding jurisdiction of the civil court in the face of bar provided under special statutes came up for consideration. After examining the legal position, the Privy Council remarked as under:

The exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts would have jurisdiction to examine into cases, where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedures

This principle was reiterated by a Full Bench of this Court in the case of Magulu Jal and Others Vs. Bhagaban Rai and Others, . So, normally the jurisdiction of the civil court is not ousted simply because the Tribunals are formulated under a special statute. In the case of Government of Andhra Pradesh v. Thummala Krishna Rao (supra) the apex Court while dealing specifically with the issue of jurisdiction of the civil Court in view of the bar provided under the O.P.L.E. Act, made the following remarks.

The summary remedy for eviction, which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person, who is in possession of the property under a bona fide claim or title. The summary remedy prescribed by Section 6 is riot the kind of legal process, which is suited to an adjudication of complicated questions of title.(Section 6 of the. Andhra Pradesh Encroachment Act is para material to the provisions of Section 16 of the O.P.L.E. Act)

In the case of State of Orissa v. Bhanu Malli, 1986 (I) OLR, 460, after taking note of various case laws, it was said that the question relating to title of either party can only be decided by the civil court and not in a summary proceeding under the O.P.L.E. Act as in such cases, exhaustive probing into the evidence, circumstance and legal position is necessary, which is not possible in a summery proceeding. Therefore, law is well settled that in a case where there is bonafide dispute between the parties about right, title over the property, such issues are to be decided by the civil court and not in a summery proceeding under the O.P.L.E. Act. In the present case, the Plaintiff-appellant claimed right, title over the suit property by way of adverse possession. The Defendants-State refused this claim and raised its own title over the land. In such a situation the O.P.L.E. Act was not competent to decide the complicated question of right and title and therefore, the civil court had jurisdiction to entertain the suit. Learned 1st appellate court: therefore, went wrong in its observation that the suit was barred u/s 16 of the O.P.L.E. Act.

The trial court on examination of both oral and documentary evidence came to hold that the Plaintiff and his father were in continuous possession over the suit land for 56 years and in the process have acquired title over the same. Learned 1st appellate court reversed this finding with the observation that: oral evidence on the score of adverse possession is not entertainable and that the starting date of possession over the suit land by the Plaintiff and his father is not: forthcoming from the evidence or document. He also took exception that the trial court did not record a specific finding that the possess ion of the Plaintiff and his father had hostile animus. In his pleading and evidence the Plaintiff clearly stated that his father occupied the suit land in the year 1938 without obtaining any permission or consent from the State authorities and all along their possession over the suit land was open, continuous and without any consent or permission of the State. P.W. 2 who is a neighbour and claims personal knowledge stated that the father of the Plaintiff and the Plaintiff are in continuous possession of the suit land and have their house and bari thereon since 1937-38. This witness was aged about 71 years when he gave his statement. P.W. 2 claimed that being a neighbour he was visiting the house of the Plaintiff and his father frequently and knew about their possession. P.W. 3 has his house 200 ft. away from the suit land. He is also an old man who says that the Plaintiff and his father are possessing the suit land since the days of his discretion. P.W. 4 is an Advocate aged 70 years and is a permanent resident of Titilagarh. He stated that since 1954 he is residing at Titilagarh and he has been seeing the Plaintiff''s father and Plaintiff residing on the suit land having their house and bari. He also stated that even before 1954, he was coming to the house of the Plaintiff as he and the elder brother of the Plaintiff were studying together at Allahabad. The statements of these witnesses were not discredited in any manner in cross-examination. Their statement was supported by the entry in the R.O.R., Ext. 2, where note of illegal possession of the Plaintiff over the suit land is there. D.W.1, R.I. admitted that he cannot say if the encroached land were in possession of the Plaintiff and his father since 1938 as he visited that encroached land only once in 1992. D.W.2 is a Junior Clerk of Tahasil Office, who is not able to say about the possession over the suit hand. The evidence of the P. Ws. coupled with the entries in the R.O.R. clearly established that the Plaintiff and his father were in possession of the suit land openly for more than 50 years and such possession was not with permission or consent of the State authorities. The very entry in the R.O.R. that such possession is illegal indicates that the possession was hostile to the interest of the State. Such being the evidence, the Plaintiff clearly established continuous, open and hostile possession. Learned 1st appellate court without discussing any of the evidence in this regard, under a wrong conception that oral evidence is not permissible on the issue of adverse possession, reversed the finding of the trial court. Such finding of the 1st appellate court being against the evidence on record and the established principle of law, cannot be sustained.

The substantial questions of law are thus answered in favour of the Appellant. Consequently, the impugned judgment and decree of the 1st appellate court is set aside and the judgment and decree passed by the trial court is confirmed.

In the result, the appeal is allowed on contest, but without any cost.